An alleged teenage rapist has avoided justice because of Scottish Government backed rules designed to offer low-level offenders an alternative to prosecution.
The Sunday Mail can reveal that Crown prosecutors enacted “diversion from prosecutions” rules that then allowed the 17-year-old to avoid a trial and possible criminal conviction.
The Ayrshire youth, who cannot be named for legal reasons, was arrested and charged but only hours before he was due in the dock prosecutors agreed to halt court proceedings.
The alleged attacker is now able to go to the US next month to begin a football scholarship.
According to the Scottish Government, which states they support the policy, diversion from prosecution is described as "alternatives to prosecution" available to the Crown Office and Procurator Fiscal Service after they received a report of alleged offending from the police.
The devastated girl who claims she was raped said the justice system had given her alleged attacker “a free pass”.
The 17-year-old, who cannot be identified for legal reasons, said: “I feel totally let down. Due to these guidelines, he’ll never see a day in court.
“What happened to me is something I think about every single day. It changed me but he is allowed to get on with his life.
“This being allowed to happen is so much more than just about me. It affects all women and girls who have been subjected to attacks.
“When you’re young you believe that when something bad happens you go to the police. It goes to court and the bad people are brought to justice.
“You don’t expect them to be handed a free pass and what happened to you just dismissed.”
She had been in a relationship with her boyfriend for two months when she says he attacked her in January, forcing himself on her in what was her first ever sexual encounter. In March she broke down and confided in her mum who altered police.
Her 46-year-old mum said: “It’s every parent’s worst nightmare. I knew in January something was wrong, but my daughter wouldn’t tell me what. I knew she had broken off the relationship. She stopped eating, became anaemic, was having panic attacks and her hair started falling out.
“In March she came home after a family party and had been crying. I begged her to tell me what was wrong. Next morning she finally told me.
“I contacted my sister, a senior police inspector, who explained the correct process to follow and two officers came out to the house to take a statement. The officers were with my daughter for hours and I could hear her in the other room as she broke down.
“She told the police about another girl at a concert. He had wanted to kiss and when she rebuffed him he grabbed her by the hair and dragged her to the ground.
“I knew he had been controlling, wouldn’t take a picture with her if he didn’t like her outfit and wouldn’t let her wear earrings. I realised it was a pattern of behaviour and it was abuse.
“She had been at his house that night but they had slept in different rooms. She said he came in during the night, woke her up and raped her. The police charged him with rape and a court date was set.”
The alleged attacker was due to appear in court last Thursday. However the victim’s family discovered that in May the Crown Prosecution Service had sent him a letter offering a diversion from prosecution.
After he agreed to accept avoiding being criminally prosecuted for rape, police contacted the victim and her family.
They asked if she was willing to accept if her attacker was referred for diversion from prosecution.
The mum said: “The police came to the house and read a letter from the prosecutor.
“It said despite there being ‘sufficient evidence for him to serve a custodial sentence’ he was being offered this diversion.
“The police officers told us they had never heard of this being used in a rape case. One officer said police would find it difficult in future to deal with young rape victims knowing this was an option for their attackers.
“We said we wanted it to go to court where the evidence could be heard and he was properly tried.
“Then the day before he was due in court, the Crown contacted us to say he had been granted this.
“No-one has ever heard of diversion for prosecution being used in rape cases. Not the police, not Rape Crisis. The Crown Office has done this under stealth.
“It made us question everything. Why was his case so special? Why was he allowed to go on living his best life and get on with his future, while my daughter’s life was left in tatters?
“He has no criminal record, has made no admission of guilt and if he ever goes on to attack someone else will be treated as a first offender.”
At the conclusion of the intervention, which usually lasts three months, justice social work submit a completion report to COPFS. The alleged attacker in this case is understood to have his case reviewed this month after which a decision will be made if he can go to the US to take up the football scholarship.
It will only be six weeks since he was due to face charges in court.
The victim’s dad added: “If he had gone to court and was found not guilty or not proven we would have to accept that but not this. This system does not protect the victims or women. This only serves the attacker and lets them off scot-free.”
The victim’s aunt, a recently retired senior police officer, said she is “absolutely horrified” by this decision.
She said: “I can tell you that in my entire career, I have never come across a decision like this. Every senior officer I have spoken is incredulous.
“Many were unaware of these guidelines and those that were said very clearly rape is not a crime that should even be considered using this for.
“Had a decision like this come across my desk when I was working I would have taken it up with Crown officials so imagine how I feel when it’s my own niece?
“This has devastated the whole family.
Scottish Labour justice spokesperson Pauline McNeill said: “This deeply worrying and incredibly unusual move raises serious questions. We need clarity if and why diversion from prosecution can be used in rape cases.
“It would be fundamentally wrong if powers like this are allowed to undermine public confidence in our justice system.
“For far too long rape in Scotland has gone under-reported and under-prosecuted. It is essential that victims can have faith in the system, right up to sentencing.”
Scottish Conservative shadow justice secretary Jamie Greene said: “It beggars belief that someone who was charged with rape was let off the hook with a diversion from prosecution order.
“These orders have soared on the SNP’s watch and completely favour criminals over victims, by only giving them recorded warnings with no admission of guilt.
“This is an appalling betrayal of the female teenage victim in this case and shows how their needs are too often an afterthought. There are serious questions to be asked of the Crown.”
Sandy Brindley, from Rape Crisis Scotland, said: “We are extremely concerned by this case. Rape is a very serious crime which can have a devastating impact.
“It’s not hard to see why the victim-survivor in this case feels completely let down by the Scottish justice system. It’s hard to see any circumstances where diversion is an appropriate approach for a crime as serious as rape. Where is the justice or protection for the victim?”
The accused’s dad countered: “These are malicious allegations that could potentially ruin a boy’s life.” The family declined to comment further.
A spokesman for the Crown Office and Procurator Fiscal Service said: “We will look into this case and continue to be in contact with the complainer.”
A police spokesman confirmed the accused was arrested, charged and reported to the Procurator Fiscal over the allegations of rape.
A Scottish Government spokeswoman said: “We recognise the devastating impact of sexual crimes on victims, their families and wider society, but are unable to comment on decisions made by the Crown, as these are a matter for the Lord Advocate as independent prosecutor.
“The Scottish Government is taking a wide range of steps to strengthen how victims and witnesses, including complainers in sexual offence cases, are supported and informed through the justice system. Our Equally Safe strategy aims to tackle and prevent gender-based violence, and includes £19 million of annual funding currently supporting 121 projects from 112 organisations that focus on early intervention, prevention, as well as support services.”
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