Sufficiency Of Evidence And Myths Pertaining To Rape Law Essay

Across the UK, the law of evidence with regard to sexual offences has been criticised due to sustained low conviction rates. Research by the Scottish Law Commission has shown that sexual offences are harder to prove than most other criminal offences and conviction rates are only decreasing. However, aside from the question of weight of evidence, as a matter of law there must be sufficient evidence for the case to succeed. In Scotland, it is a fundamental tenet of criminal law that the crucial facts of the Crown case must be corroborated – that is, they must be proved by evidence from two sources in order to obtain a criminal conviction [4] . When applied to the offence of rape, this requirement has been described as, ‘a significant and often insurmountable hurdle’ [5] , presenting huge problems in proving this inherently private crime. This chapter considers the unusual requirement of corroboration in relation to rape allegations in Scotland and the possibility for reform.

General Corroboration.

At a primitive level, the law of corroboration in Scots law stipulates that an accused cannot be convicted on the basis of evidence from a single source, no matter how compelling; as a matter of law, the evidence against him must be corroborated [6] . This is not to say that all evidence must be corroborated, however the ‘crucial’ facts [7] , or facta probanda, must be proved in this manner. In a prosecution for rape, the Crown must prove beyond reasonable doubt that the accused had sexual intercourse with the complainer without her consent (the actus reus) and that the accused knew that she was not consenting or was recklessly indifferent to whether she consented or not (the mens rea) [8] . This principle has obvious merit in preventing the miscarriage of justice through wrongful conviction, however, within the realm of sexual offences, particularly rape, common sources of corroboration in other offences, such as on-the-scene witnesses, are largely absent. **therefore it is problematic- too big burden on already traumatised victims.**

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The issue of corroboration can be directly related to the question of credibility of complainers: it is inferred that the requirement for such additional evidence is necessary due to the untrustworthy nature of victims of rape. Temkin specifically describes the rationale of the corroboration requirement in sexual cases as resting on a woman’s predisposition to lie and their inherent weaknesses [9] . The approach of the law of corroboration is embodied/epitomised (CORRECT WORD??) by the oft-quoted words of Salmon LJ in the English case of R v Henry [10] :

‘[H]uman experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all.’ [11] 

The discourse of rape is shaped by the irrational fear of the man wrongly convicted by the lying, vengeful or neurotic woman. Yet empirical evidence has shown that the belief that women commonly fabricate accusations is unfounded [12] . Investigations conducted by both the Law Commission and Lees and Gregory could find no evidence to indicate a serious problem of false allegations [13] . However, despite this, the view of women as prone to lying about rape has an established history and is found in the writing of Hale [14] , Wigmore [15] , and Glanville Williams [16] .

Barbara Toner quotes the a judicial explanation for corroboration: ‘It is well known that in sex cases women sometimes imagine things which various ingredients in their make up tend to make them imagine.’ [17] 

Temkin provides the extreme example of corroboration as dealt with in Pakistan. As part of the 1977 Islamization programme [18] , in Pakistan it is an imprisonable offence to have extra-marital sexual intercourse [19] , however in order to prove the offence of Zina (rape), the accused must confess or the complainer must obtain eyewitness accounts of the act of penetration from at least four male adult Muslim witnesses. Since corroboration of the sort required is inevitably lacking, women who allege rape in Pakistan are liable to be held in prison for extended periods on charges of zina (rape) where they run a distinct risk of rape by the police [20] . These overtly sexist laws may seem light years from the modern Scottish legal system, but the assumptions behind them persist in the rape and sexual assault laws currently in force, and in the hearts and minds of the majority of legislators, police, magistrates and judges.

Although Scottish law has never been so restrictive, the effect of the requirement is so widespread for some it may as well be – get statistic for how often rape case fails due to lack of corroborative evidence.

In Scotland, the vast majority of crimes require to be proved by corroborated evidence, however significantly it is alone in the UK in imposing such a requirement. With regard to sexual offences, England and Wales had abolished the need for corroboration and indeed even a corroboration warning by 1994 [21] .

Despite being applied in the majority of criminal offences [22] in Scotland… The corroboration requirement is applied consistently to the majority of criminal offences in Scotland, however it presents particular problems with regard to offences such as rape which are usually committed in a private setting and often turn on the question of consent.

Ms Angiolini told a Rape Crisis Scotland conference that the country’s rape laws were “among the most restrictive in the western world”. [23] 

Implications re: attitudes of the judiciary. – whether this may be held true or not, the issue stands that the requirement still is very strenuous re: rape charges – however because of this …corroboration by distress.

What can be used? Corroborative evidence, ‘strengthens, or confirms, or supports a statement or the testimony of a witness’. [24] The most common methods of corroborating a complainer’s account in situations of rape typically involve forensic evidence, a confession by the accused, eyewitness statements, evidence of distress after the event or by invoking the Moorov doctrine [25] . The list of common corroborative sources seems very easy simply to list, however in reality…???? In any single rape where the complainer is regarded as credible and reliable the corroboration required need not be much. Since the case of Yates v HM Advocate [26] , 1977 SLT (Notes) 42, where identification of the accused was not in issue, it may be found in the distress of the complainer spoken to by a third party. In other cases it may be found in evidence of injury, DNA and the like [27] .

Comparison to other jurisdictions.

The principle of corroboration has been recognised from the earliest times [28] , Stair found support for the principle from various sources in the bible [29] , however Scotland is almost unique in its application of the requirement today in sexual offence allegations.,

WHY KEPT IN SCOTLAND??? WHY ABOLISHED IN ENGLAND??- general arguments here.- jury, hung verdict etc.

It has been suggested that the requirement of corroboration makes little practical difference to conviction rates, based on comparative rates of conviction in England and Wales as in Scotland. [30] However, this argument seems to fall short due to the problem inherent in many cross-jurisdictional comparisons – the matter being measured is not constant [31] . Until recently, there were significant differences in the statutory definition of rape, some of which remain even following the Scottish Sexual Offences Act, making it difficult to deduce an accurate comparison and therefore reaching such conclusions would be inaccurate.

In an assessment of English Court of Appeal cases, Redmayne **NEED FOOTNOTE HERE??** noted that most cases alleging rape included independent evidence that could be considered corroborative, however, there were exceptions [32] . As the standard of proof in criminal cases is the same in both England and Scotland, if the prosecution were able to prove beyond reasonable doubt that the accused was guilty of the offence even once, based simply on a single piece of uncorroborated evidence, any there were any successful convictions in England (or Wales) based on a single piece of uncorroborated evidence, therefore proving beyond reasonable doubt that the accused was guilty of the offence, there is then an argument for reform of Scottish law [33] .

Agreed should not change in entirety – how General criticisms of corroboration – requirement is obviously intended as a protection for accused persons in criminal cases, to protect against false conviction, however, is this degree of protection adequately balanced against the rights of the complainer within the special circumstances of rape?

PROBLEMS WITHIN CORROBORATION

This is further frustrated by High Court removal of the forcible overcoming of the victim’s will in Lord Advocate’s Reference No. 1 of 2001 [34] , which has shifted the focus from the actus reus to the less easily established mens rea.

Previously where the complainer alleged that she was raped but the accused maintains that she participated willingly, the former’s testimony may have been corroborated by the presence of physical evidence of force, such as cuts or bruises [35] , whereas now it can only be inferred from the complainer’s stated lack of consent. Despite the obvious improvements this brought for the complainer by widening the scope of the offence, it raises the question of how mens rea is to be corroborated in the absence of evidence of force?

With a new definitive definition of consent , there is no doubt that the Sexual Offences (Scotland) Act will aid in precipitating a higher rate of conviction, however, the difficulty of finding corroborating evidence to substantiate allegations of sexual assault remains prevalent.

To ameliorate the effects of the rule of corroboration the common law has developed principles to accommodate many of the circumstances of offending in which corroboration will be especially difficult to obtain. However even these attempts to regain the confidence of complainer’s in rape charges have been criticised. Two of which are of particular issue with regard to the offence of rape as well as other sexual offences are distress as corroboration and the moorov doctrine.

DISTRESS AS CORROBORATION

The doctrine of corroboration by distress is long established within the field of rape [36] . In principle, provided the identity of the accused is not in question and there is independent evidence that sexual intercourse took place, evidence from a third party of the complainer’s de recenti distress may provide circumstantial evidence which can be used as a form of corroboration [37] . However, the limitations on the use of distress as corroboration following recent common law developments has attracted significant academic discussion.

In itself, the complainer’s distress cannot corroborate the identity of the accused or the exact nature of the sexual conduct alleged to have taken place if that is a crucial element of the crime.

…It is now clear that evidence of a third party as to the distress of the victim is capable of confirming only that the victim suffered some distressing event or conduct. It cannot by itself corroborate identification of the accused or the exact nature of the conduct if that is a crucial element of the crime. It is thus capable of corroborating by inference the fact that an admitted or otherwise proven sexual encounter was brought about against the victim and by force.

Prior to the Lord Advocate’s Reference, corroboration of the accused’s mens rea was largely implicit in the case law, if force was not established, the crime was not rape; if it could be established, the requirement of mens rea could be readily inferred.

Drawing on the decision in Smith v Lees [38] , Scott [39] goes so far as to question whether distress can even corroborate the use of force asking, ‘If force and absence of consent are no longer conflated then distress cannot corroborate the use of force.’ However, this attitude ignores the corroborative context of distress [40] .

In delivering the opinion of the court in the case of Spendiff v HM Advocate [41] , Lord Penrose noted that there may be some situations in which de recenti distress can instruct a jury ‘as to the state of the man’s mind’ [42] . Lord Penrose gave the example of a man engaging in sexual intercourse with a woman who having been asleep regains consciousness upon penetration and objects causing him to stop and leave. He states that in such an instance, circumstantial evidence of the woman in a state of distress could entitle a jury to conclude that the man had the mens rea of rape [43] .

“It is a source of evidence independent of the victim, since the third party is speaking to personal observation of the victim’s distressed condition. – ferguson….

DELAYED DISTRESS/ TIME INTERVAL.

In order to be capable of providing such corroboration the distress must have been exhibited spontaneously and must not be too remote in time from the event…”

Furthermore, the current law seems to disregard the possibility of delayed distress on the part of the complainer. It is for the jury to decide, on a balance of probabilities rather than beyond reasonable doubt [44] , whether the distress caused was caused by a lack of consent, however the more remote the

In the case of Moore v HM Advocate, distress exhibited some 12 to 13 hours after the alleged rape was held to be too remote to corroborate the incident.

Scope of distress

Currently the law is very unclear not only on whether distress may be used as circumstantial evidence to corroborate a complainer’s accusation but also on the extent to which this may be used to infer the accused’s mens rea. At any rate, clarification of this confused law is necessary; however in codifying this law care needs to be taken to avoid the assumption that the complainer must have consented to sexual activity in the instance of delayed distress or the lack of outward signs to this effect [45] .

MOOROV DOCTRINE

In addition to distress as corroboration, another tactic for obtaining corroborative evidence in sexual offence allegations is through the Moorov doctrine. Named after the leading case of Moorov v HM Advocate [46] , although the underlying principle is considered to be significantly older [47] , where an accused is charged with two or more crimes and only one witness implicates him in each, such evidence can afford mutual corroboration if the crimes are interrelated by character, circumstances and time so as to allow a jury to conclude that they were part of a course of systematically pursued criminal conduct by the accused [48] . In cases of rape and other sexual offences the potential benefits of the Moorov doctrine are clear – it may establish corroboration where none else can be found – however, again this source of corroboration has also been subject to significant criticism (due to its limited scope/as its narrow scope greatly reduces the impact of the doctrine).

LINK BETTER…

In sexual offences there may be little to support the complainer’s account and it is only be demonstrating that there has been a course of conduct established by a pattern of one or more similar offences involving different victims that it becomes possible to use the testimony of each complainer as corroboration for the other(s) [49] . However, the similarity is not dictated by the nomen iuris (name in law) of the crime, but by an underlying similarity of character or substance suggesting that they are part of the same systematic course of conduct [50] (WALKER DEF). It therefore follows that although the charges libelled may be identical, if there are material differences in the conduct, then the doctrine cannot apply [51] .**LINK INTO RAPE??** In practice, this requirement often precludes mutual corroboration of allegations of victims where the accused is alleged to have attacked/abused several individuals of different genders of different vulnerabilities [52] .

The time separating the offences is also of importance when deciding whether a connection of the separate offences can be established. The judiciary have on numerous occasions repeated that there is no explicit limit on what interval would be considered fatal to the application of the Moorov doctrine [53] , each case should be considered on the merit of its own individual circumstances and decided in isolation [54] . However, in application, this requirement of a timeous nexus between the offences is of issue in sexual offences, particularly in cases of sexual abuse of children where there are gaps of several years between the incidents of alleged abuse [55] . In Turner v Scott [56] a gap of almost 3 years between incidents of was said to be ‘on the borderline’ for acceptance as corroborative evidence

Additionally, in order for Moorov to be operative, all charges must be active before the court, i.e. a finding or admission of guilt must not yet have been entered [57] . Consequently, previous convictions for similar offences or even identical offences in other jurisdictions cannot be employed for the purposes of the doctrine, and further, if an accused is libelled with two offences but pleads guilty to one, the other charge will fall due to lack of corroboration [58] .

Potential Reforms:

Despite this, in the Sexual Offences Bill discussion paper, the vast majority of consultees rejected the proposition that corroboration within the law of evidence should be removed entirely [59] .

Since the days of institutional writers, the requirement of corroboration has been treated as a stronghold within the Scots laws of evidence. Gordon stated that, ‘The requirement of corroboration is generally regarded by Scots lawyers as one of the most remarkable and precious features of Scots criminal law’ [60] . – put these after FEMINISM PART… DISBELIEF ETC…

Aislish Angiolini: ‘if we are to retain the requirement we must be certain that it continues to serve an important function in our legal system and that the Parliament and the community of Scotland are willing to accept that it will inevitably continue to limit significantly the number of cases which can be considered for prosecution and lead to a conviction.” [61] 

SLC open letter recommendation to change distress as corrob to only cover actus reus…

Moorov widened- unlike distress as a form of corroboration which is predominantly used in cases relating to sexual offences, the Moorov doctrine is applied widely across a range of criminal offences [62] , and for this reason, the doctrine was not altered under the Sexual Offences (Scotland) Act [63] . However, the matter is currently under review by the SLC which should be issuing its findings/proposals for reform by the end of 2010.

Currently under review by the Scottish Law Commission [64] , there is also potential for reform of the Moorov doctrine.

‘A question arises as to whether it should be subject to legislative restatement’ [65] 

(10) The Commission should reconsider the scope of the Moorov rule as it relates to rape. The scope of Moorov is considered too restrictive in that evidence out with the indictment cannot be used in Scots law at present.

Lord Justice General seems to give a warning against the extension of the Moorov doctrine past the circumstances in which it was traditionally applied. It can be seen that in the majority of reported cases it is evident that the crimes were the same crimes in the narrowest sense of the term [66] .

‘continuing barriers to women’s credibility: a feminist perspective of the proof process’

Overall conclusion

“We must be realistic about the impact which reform of the substantive law alone will achieve, and I am therefore heartened that the cabinet secretary for justice has asked the Law Commission to review the law of evidence. Only reform of both the substantive law and the law of evidence combined will provide us with a sound framework within which to tackle attrition’ – aislish angiolini…

TAKEN OUT

TIME INTERVAL DISTRESS AS CORROB- Lord Cowie: The judge should direct the jury that before they can regard the evidence of the victim’s distress as corroboration they must be satisfied beyond reasonable doubt that the distress of the victim was caused by the alleged rape and was not due to some extraneous factor such as shame or remorse’.

However, as highlighted by Mike Redmayne in his 2006 article ‘Corroboration and Sexual Offences’, [67] this argument seems to fall short due to the problems inherent in cross-jurisdictional comparisons