Rape trials

Question 1

Skeleton

Answer 1

Intro
Current law
Application
Issues
Reform
Conclusion

Question 2

What is rape

Answer 2

Intentional or reckless penetration of another person’s vagina, anus, or mouth with penis

Question 3

Rape authority

Answer 3

s.1 Sexual Offences (Scotland) Act 2009

Question 4

Rape shield authority

Answer 4

s.274 CPSA

Question 5

What does s.274 say

Answer 5

Prohibition of evidence that suggests complainer’s

1) bad character
2) sexual history outside of the case
3) non-sexual conduct that could convey consent
4) lack of credibility

Question 6

Rape shield exceptions authority

Answer 6

s.275 CPSA

Question 7

What does s.275 say

Answer 7

3-part cumulative test for leading prohibited evidence:

1) specific evidence of complainer’s character or condition
2) relevance
3) probative value outweighs prejudicial effect

Question 8

Purpose of rape shield

Answer 8

To respect the complainer’s dignity, but not inhibit the fairness of the trial to the defence

Question 9

What other sections of the CPSA are used in rape trials to protect the complainer

Answer 9

s.275C
s.288DA
s.288DB

Question 10

What does s.275C say

Answer 10

expert evidence allowed to rebut rape myths - exception to rule against expert opinion on ordinary human nature

Question 11

What does s.288DA say

Answer 11

Judge should direct jury that complainer credibility not affected by a delay in reporting offence

Question 12

What does s.288DB say

Answer 12

Judge should direct jury that absence of physical resistance does not affect their credibility or reliability

Question 13

How was the rape shield applied in Donegan v HMA

Answer 13

Wasn’t applied.

Judge and jury lead offensive and humiliating questions and allowed rape myths to be voiced in court

Question 14

Rape myth used by judge in Donegan

Answer 14

Asked complainer why she did not scream or tell her neighbours

Question 15

What similar case supports Donegan

Answer 15

Dreghorn v HMA

Question 16

2016 statistics on s.275 application

Answer 16

57 applications
48 allowed

Crown only opposed 6 of them

Question 17

Rape shield effectiveness

Answer 17

Currently, not adhered to in court. Ineffective as requires counsel and judge to enforce, but still old-fashioned views in the courtroom

Question 18

Two main issues of rape trials

Answer 18

Corroboration

Rape myths

Question 19

Corroboration explanation

Answer 19

Every crucial fact must be proved by at least two pieces of evidence

Question 20

Authority for new corroboraton

Answer 20

Lord Advocate’s Reference No.1 of 2023 - distress can now corroborate complainer’s testimony. De recenti exception to secondary hearsay

Question 21

Effect of corroboration requirement

Answer 21

Historically, hard to prove rape as typically occurs in private. yet to see effect of LAR in practice

Question 22

What are rape myths

Answer 22

Misheld beliefs surrounding the circumstances and effects of rape

Question 23

Examples of rape myths

Answer 23

Women are asking for it by wearing revealing clothes

Question 24

How does the CPSA try and counteract rape myths

Answer 24

Judicial direction in s.288DA and s.288DB

Insufficient

Question 25

Four reforms

Answer 25

1) Pre-recorded evidence 2) Sexual offences court 3) ILR 4) Trial without jury

Question 26

Pre-recorded evidence

Answer 26

All of the complainers evidence is taken before the trial, and played to the court on video

Question 27

Why introduced pre-recorded evidence?

Answer 27

Minimises humiliation and fear for the complainer Evidence can be taken closer to the time of the offence e.g., initial police interview No collateral evidence

Question 28

Arguments against pre-recorded evidence

Answer 28

Could inhibit cross-examination. Not convincing, as cross-exam can still be done and recorded ToF not able to test demeanour

Question 29

Authority for sexual offences court

Answer 29

Part 5 of the Victims, Witnesses and Justice Reform (Scotland) Bill

Question 30

Sexual offences court

Answer 30

Specialist court for sexual offences only. Judges receive trauma-informed training and are appointed by the Lord Justice General

Question 31

How much High Court time is spent on serious sexual offence cases

Answer 31

70%, as of 2021

Question 32

Evidence of successful specialist court

Answer 32

2017 New Zealand pilot

Question 33

Pros of specialist court

Answer 33

time, money, victim treatment, and satisfactory judgements

Question 34

Cons of specialist court

Answer 34

trauma-informed practice could inhibit defence and LJG has absolute power to appoint

Question 35

Trial without jury

Answer 35

come on

Question 36

Why remove jury

Answer 36

Jury are too influenced by rape myths. 94% of criminal convictions in 2021 were in summary

Question 37

Pros of trial without jury

Answer 37

Single judge easier to educate They have to give reasons for their decisions Don't need law explained to them - time and money efficient

Question 38

Cons of trial without jury

Answer 38

Judge is still influenced by rape myths (Donegan) Jurors bring a diversity of experience and opinion

Question 39

ILR

Answer 39

Independent legal representation - publicly funded representation

Question 40

Pros of ILR

Answer 40

Effective opposition to s.275 applications Effective voice and shield against unfair questioning

Question 41

Cons of ILR

Answer 41

Cost

Question 42

Conclusion

Answer 42

Answer the question