Anger at Scottish policy that may force rape victims to testify

By Nick Dowson
Guardian
March 26, 2018

https://www.theguardian.com/society/2018/mar/26/anger-scottish-policy-force-rape-victims-testify

Edinburgh high court, where a woman was detained by police after trying to flee the witness stand during a rape trial.

Campaigners in Scotland have expressed anger at new guidance that could force rape victims to give evidence against their will.

Rape Crisis Scotland, as well as cross-party parliamentarians, have hit out at the new “reluctant complainers” policy which means rape victims who try to withdraw from cases may be compelled to testify where prosecution is deemed to be in the public interest.

“For anyone who has the courage to report it and then gets to the point where they can’t continue – to then force them to testify is inhumane,” said Sandy Brindley, the chief executive of Rape Crisis Scotland. “It’s also self-defeating – if you have to put them in the cells the night before it’s not going to be useful evidence.”

Rape Crisis Scotland has written an open letter expressing its concern to the Crown Office and Procurator Fiscal Service (COPFS), which is responsible for prosecutions in Scotland.

The COPFS says the serving of “witness warrants” would only be used as a last resort. However, it said it was important to explore the reasons why victims seek to withdraw from cases and that the proposed measures may be appropriate in some cases where witnesses are needed for corroboration – which Scottish law requires for all accusations.

In Scotland, the lord advocate, who is appointed on the recommendation of the first minister, acts as the chief public prosecutor and heads the COPFS, but makes prosecution decisions independently of the Scottish government.

A COPFS spokesperson said stakeholder organisations were consulted on the guidance before it was finalised, and that prosecutors have a responsibility to protect the public from dangerous sexual offenders. However, campaigners and MSPs argue the new approach is not the best of way to increase convictions for sexual offences.

Monica Lennon, Scottish Labour’s equalities spokesperson, said: “Survivors of rape have already been through enough trauma and the fear of possible arrest if they are unable or unwilling to give evidence in court will put them through more hell.”

She said the policy change risked discouraging women from reporting rape and sexual assault. “The Crown Office must listen to the concerns of Rape Crisis Scotland and others who are troubled by this dramatic policy change and put it right.”

Rape Crisis Scotland said forcing rape complainants to give evidence and undergo cross-examination against their will breached their human rights. In 2009, Anne Robertson wasdetained in a police cell overnight after trying to flee the witness stand at the high court in Edinburgh during questioning over her alleged sexual assault as a 12-year-old.

“Women rightly feel that the criminal justice system revictimises them and I agree with Rape Crisis Scotland that more needs to be done to understand why women, initially prepared to give testimony, then consider withdrawing,” said John Finnie, the justice spokesperson for the Scottish Greens.

Brindley argues that very often the problem is the justice system itself. “Rather than compelling victims, what we need is to address the reasons people withdraw,” she said. “Take the delays: it’s not uncommon for people to work themselves up to give very difficult evidence only to get called up the night before and told it has been delayed.”

The COPFS spokesperson said that in sexual offence cases the attitude of the complainant would always be a very significant factor, but a rule that prosecutions could not continue where complainants were reluctant would be inappropriate. “The new guidance will make sure … the reasons for this [are] fully explored and all reasonable steps taken to re-engage the complainer before a decision is taken about the case,” the spokesperson said.

A Scottish government spokesperson said: “It is a Scottish government priority to find ways to reduce the trauma and improve the experience of victims within the criminal justice system, and we are investing record levels of funding to support victims through a range of frontline specialist services. Most recently, the justice secretary announced enhanced funding of £1.7m to extend a pilot scheme providing advocacy support for victims of rape as they engage with the justice system.

“Prosecution policy is a matter for the lord advocate and it is not appropriate for the Scottish government to comment on prosecution policy.”