The Scottish government has scrapped a pilot of juryless trials for rape cases, which aimed to tackle endemic low conviction rates for sexual assault prosecution, after a backlash from the highest levels of the legal profession.
Campaigners against sexual violence expressed disappointment that the proposal, which would have made Scotland the first part of the UK to use specialist courts and judge-only trials for serious sexual assaults, had been dropped.
The pilot had been recommended by Scotland’s second most senior judge, Lady Dorrian, but attracted widespread condemnation, with lawyers’ associations throughout Scotland balloting to join a near unanimous boycott of the scheme.
It formed part of a suite of radical measures set out by the former first minister Humza Yousaf and the justice minister, Angela Constance, last year in the victims, witnesses, and justice reform bill, including the abolition of the controversial Scottish verdict of “not proven”, which were hailed at the time as “transformative” by campaigners and survivors of sexual assault.
Updating the Holyrood parliament on Thursday, Constance said there was “clearly not enough parliamentary support” for the pilot, adding she remained concerned about “substantial evidence that juries may be influenced by rape myths”.
Rape myths are stereotyped or prejudiced assumptions about the way sexual assault survivors behave, for example the idea that if a woman did not scream for help or fight back then the assault did not constitute rape.
Constance went on to announce amendments to the bill to allow for more detailed research into jury deliberations, as well as further work to challenge rape myths, for example, “interventions or educational resources for jurors and the wider public”.
Responding to the announcement, the chief executive of Rape Crisis Scotland, Sandy Brindley, said: “We’re disappointed that a pilot of judge-led trials, a significant part of the bill, has been dropped. There is overwhelming evidence about the impact of rape myths on jury decision-making. Conviction rates for rape in Scotland remain the lowest of any crime type. In the absence of the judge-led pilot, the focus must be on ensuring that juries are able to make decisions based on the evidence before them and not on false assumptions about rape.”
Brindley welcomed as “a very positive step” research into jury decision-making in rape cases.
The announcement comes after a landmark decision by Scottish judges that the distress displayed by a complainer to a witness can be used to corroborate whether a rape took place, which is expected to result in more cases going to court.
Corroboration requires prosecutors to provide another independent source of evidence to prove a crime took place, which can come in the form of forensic or witness evidence. It is one of two unique features of Scots law that campaigners consider to work against the successful prosecution of sexual assault, the other being the use of the not proven verdict.
The lord advocate, Dorothy Bain KC, had asked for the change after two sexual offence trials last year ended in acquittals.
Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In the UK, Rape Crisis offers support on 0808 500 2222 in England and Wales, 0808 801 0302 in Scotland, or 0800 0246 991 in Northern Ireland. In the US, Rainn offers support on 800-656-4673. In Australia, support is available at 1800Respect (1800 737 732). Other international helplines can be found at ibiblio.org/rcip/internl.html
