Rape trials: Time for change?

There are demands for changes in the way rape trials are conducted in Scotland. It follows the case of the man who was allowed to question a mother and her 13-year-old daughter, who he was alleged to have raped.

Earlier this week, Victim Support Scotland said rape accused could still receive a fair trial, where they defended themselves but were prevented from personally putting questions to witnesses.

But there is a view within the legal community which says an accused's right a fair trial would be infringed by such a move.

Should a rape accused by allowed to question alleged victims? Or is it an ordeal too far for the witness? How could the law be reformed in Scotland to try to take account of the need for a fair trial and the witness's emotions? Tell us what you think.

The judicial system is littered with so much pomp and ceremony, rules and regulations, most people feel justice is out of their reach.

Justice was once something you demanded.

If enough of us are outraged and march on the town for changes, then changes will be made. But, by and large, we have learnt to accept miscarriages of justice.

Perpetrators are more familiar and better armed to deal with the system than victims of crimes.

We need a change in attitude before we'll get a change in law.

Victims need to learn to scream their anger at the judge, jury and the accused. Not at the counsellors and therapists that nurse them through.
Sharon, UK

I recall that in some other places (possibly Massachusetts), the accused could give their own defence but the rape victim could give evidence via a tele-link thereby avoiding the situation where the accused could "violate" and "humiliate" the witness for a second time (this time psychologically).
B Molloy, Scotland/USA

The victim should have to face the accused, but certainly there are ways to mitigate the trauma that such interaction might put upon the victim.

Perhaps if the victim could testify as a silhouetted figure, not directly visible to the accused, these concerns could be resolved.
Drew Davis, USA

Alison Thomas, unfortunately the woman does have to prove something.. the guilt of the accused.

Either you are to insist on proof of guilt, and allow some rapists to go free, or you will insist on proof of innocence.

But then, some innocent men will be put in jail. Which can you live with?
Andrew Murray, UK

The reason there are so many difficulties in proving rape charges is not due to any inherent sexist bias in the judicial system.

Rather the nature of the crime and it's intimate circumstances almost always means that there are no witnesses and the only remaining issue is that of consent.

You can't be convicted purely on the say-so of another person

Doug Wilson

In the absence of any physical evidence of violence it verges on the impossible to accept one person's view of events over another, on the basis of beyond reasonable doubt.

You can't be convicted purely on the say-so of another person - there must be some corroboratory evidence.
Doug Wilson, Scotland (currently in Canada)

YES - accused rapists should never be allowed to question their accusers in court.

Too emotional for the victim and she doesn't have to prove anything.

Everyone is innocent until proved guilty. If there is a false accusation it should be brought to light by some other means than questioning the accuser.
Alison Thomas, Canada

Oh dear Chantal, Canada - you destroy your own argument with the bias you youself mention.

Rape carries the possibility of a life sentence and if a woman is not prepared to face up to her accused in court she should withdraw the charges.

The high acquittal rate reflects the fact that most rapes are not perpetrated by complete strangers but stem from first time dates or other tenuous relationships.
John, UK

Stacey, there is a similar law already in Scotland - sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.

That provides that the court shall not allow the defence to attack the character of the complainer (alleged victim) unless the court has agreed in advance to let them do so because either (1) the prosecution have raised that issue before the court; (2) the evidence relates to the alleged sexual behaviour which led to the charge; or (3) it would be contrary to the interests of justice to refuse to allow it.

Where it is allowed, the prosecution is allowed to lead evidence of the accused's bad character (e.g. if he has any previous convictions for sexual offences).

I didn't hear the evidence in the trial at Perth, so I don't know whether this law was used.

I think it's very important that an accused should have the right to let the jury know that he disputes the allegations

Derek, UK

The accused may not have been questioning the complainers on their previous sexual history, he may just have been suggesting that they were lying about the circumstances relating to the charge against him.

And, since he was acquitted, it seems reasonable to suppose that the jury were not convinced beyond reasonable doubt that they weren't lying.

However, I absolutely agree that the conviction rate for rape and other sexual offences is much lower than that for other serious crimes, and that does make you wonder if there isn't a problem with the way trials are set up at present.

But I think it's very important that an accused should have the right to let the jury know that he disputes the allegations (if he does) and suggests a different version of events, even if it is harrowing for the complainer.
Derek, UK

It is very frightening to imagine being faced by a man who allegedly raped me and be questioned directly by him. This situation is very unbalanced in power, and it should be done through a lawyer or a legal representative.

It should not be allowed to occur directly under any circumstances. Unfortunatly, rape is loaded with biases on both sides, and many seem to think that some women accuse men out of revenge.

This is very rare, and it is a well-known fact that, of the cases that do manage to make it to court (which is apparently less than 50%), the accused is acquitted 75% of the time.

You cannot tell me that 75% of accusers are lying. It is an extension of this man vs. woman bias and of the idea that women "provoke" and are therefore responsible for the violent act of another.
Chantal, Canada

I have two questions. In other criminal cases, does the accused question the witness directly, or does he/she leave the questioning of the witnesses to his/her representative? Why should it be any different in a rape case?
Pat, UK

Has the crime of rape now transcended natural and judicial justice? A person accused of any crime (no matter how often despite what the tabloids are saying today) has the right to defend themselves and we withdraw this right at our peril.
Gerry, Scotland

As I understand it the man was acqitted. Which I assume was because the jury did not believe the accusation. Yet it would appear that in the eye of many, he is guilty.

In fact it is the case that for many women's groups, a man is guilty simply for being accused.

I like to think that woman can stand up for themselves

Boris, UK

Personally I do not see why video links be used or the accused submitting questions for his representative to ask. But then again, I fail to see why a male accused of rape is named, yet a false accuser is not.

I don't understand why male rape is virtually ignored and I don't understand why accusers proved to be lying are not themselves prosecuted.

Of course I would say all of this, for I am a man, unable to accept the evil my sex does to women.

But I like to think that woman can stand up for themselves. I don't think I need to do that for them. As a current victim of continuous physical assault from a woman, I like to point out that such subjects are not as one sided as some would have us believe.
Boris, UK

We all have to remember you're innocent till proven guilty. There seems to be the assumption that being charged with rape automatically means guilty.

We all should have the means to prove our innocence.This law should stay and it would be a very dangerous move to remove it.
Jonny, UK

If one is accused of a crime, including rape, and one is innocent (truly), then one's fundamental right to question the accuser is of paramount importance.

That does not mean that some mechanism cannot be found to protect the victim from further harrassment while in the court itself, but our whole legal system is based upon the ability of the accused to face and question his/her accuser.

Remember, we're all innocent until proven guilty ... the tone of much of the correspondance here assume defendants are automatically guilty by their mere arrest and that one must automatically bias the proceedings in the victim's favor.

Be careful, this is a rocky road.
Mark M. Newdick, USA/UK

I fail to understand this rather sanctimonious declaration that justice requires the accused to be able to face and question the accuser. Why?

I do not see that our extremely partisan justice system is a very efficient method of divining the truth

M. Moran

Justice actually requires the truth to be elucidated in the best available manner and any ensuing punishment to be in accordance with the severity of the crime.

I do not see why an accused is in any better position to demonstrate possible flaws and discrepancies in witness testimonies than a reasonably well-trained representative.

In fact, I would suggest that allowing a defendant to represent themselves acts counter to the objective of ensuring a correct verdict and is thus an unjust system.

Indeed, I do not see that our extremely partisan justice system is a very efficient method of divining the truth in the first place. Both parties have a vested interest in presenting a prevaricative (ie. dishonest) version of the events in question.
M. Moran, UK

To allow an accused rapist to personally question the victim is a personal attack in itself. This is heaping more abuse upon the alleged abused.

If the accused is innocent, then it should also be abusive to force the innocent person to be involved with further verbal torture by the one spreading canard.

The most humane method of handling this type of case is for outside parties to question and otherwise perform the verbalizations.

If an individual does not want a lawyer, (which in my view, is not smart) then the litigant should be free to select another spokesperson in their behalf.
Betty Yake, USA

One of the fundamental tenets of a free and fair judicial system is for the accused to confront his/her accuser. Take that away and you'll have a judicial system maladministering justice and locking innocent people away in jail.

In the case of rape, there should be the possibility of the accused putting his questions to the accuser in writing or some other indirect method.
Jeff, USA

It's completely unacceptable that a defendant should be allowed to question the alleged victim in any case.

Rape is one of the most serious crimes

Carys, UK

There has been research on British rape trials recently that shows that many of those involved in those trials are biased from the beginning against women involved in any sexual case.

The old hypocrisy of "asking for it" is truly evil. We need to realise that it is fallible human beings who make the law work, and it is we who can twist it to our own ends.

Rape is one of the most serious crimes - in days gone by it would have been punishable by death, which may not be right but it shows how seriously it used to be taken.
Carys, UK

As an American law school graduate studying for the bar exam, I can say that many states, as well as the American federal rules, have what is commonly known as "rape shield" laws.

These are evidentiary rules which exclude evidence of a rape victim's character from a trial unless and until she herself makes it an issue.

The only exception to this is any prior convictions of hers for sex related offenses which have occurred within the last two years.

This is done in the context of a legal system which places a great deal of value on the process and idea of cross-examination.

However, instituting something like this, if possible, might permit the questioning of a victim by the accused, but limit it to circumstances where it is most necessary.
Stacey, USA

It is a fundamental right of any accused to question witnesses directly. Without that right we cannot really talk about any justice but place the accuser in a better position than the accused.

This is specially detrimental in the crimes where there may be personal feud in question.

Rape, regardless how despicable it is, always contains a possibility of misuse and vendetta or even direct blackmailing by the accuser.

These possibilities must be taken into consideration and allow the defendant any means of defending for possible false or fraudulent accusing.
Mikko Toivonen, Finland

There are many crimes which leave a psychological scar on the victim.

In which case further damage can be done to the victim if confronted in open court by the alleged perpetrator.

Perhaps the law should be changed for all cases so that the defendant can only question the victim through a special court official or lawyer.

At least in this way the defendant can put precisely the question that he/she wishes but there is no further psychological confrontation.
Harry, Germany

This is an issue that I find very hard to resolve in my mind. If the female has been raped then the present setup is simply a torture chamber.

On the other hand if the man is inocent then his right to clear his name should not be any different as any criminal situation.

A court case can often be seen as a football game where the judge is the referee.

Ruaridh Shuttleworth

The only solution I can see is that a video link can be used so the female is at least not in the same room as the male. This is a compromise for both camps.

There can be victims on either side of the case, and a court case can often be seen as a football game where the judge is the referee.

Playing the rules in favour of one of the teams is not my idea of justice.
Ruaridh Shuttleworth, Scotland

Well said, Ruaridh! It is a difficult balancing act between protecting one possibly innocent victim (who could, in fact, be a malicious accuser) and a second possibly innocent victim (who could be a raping, sick monster).

If the person is innocent, it must be so dreadful to have to stand up and be accused of some of the vilest crimes imaginable.

Jenni, UK

There can be no doubt that for the sick rapist, there would be a perverted pleasure in asking intimate questions, but the law states that any person has the right to defend themselves, regardless of the crime or circumstances.

If you are going to change the law, it cannot be restricted to rape - what about torture and other abuses, not necessarily those of man against woman?

A video-link would be the ideal compromise - the jury can see the reactions of the questionnee but without that person, if innocent, undergoing the torment of physically facing their attacker.

Of course, the reverse should apply and the accused should be entitled to the same right to give evidence via video - if the person is innocent, it must be so dreadful to have to stand up and be accused of some of the vilest crimes imaginable.

And while we're about protecting potentially innocent parties, when are they going to stop naming the accused before conviction?

A man's life can be ruined by accusation and vengeful women know this and that their own identity would be protected.
Jenni, UK

The victim should never face the alleged rapist. There is still that connection or relationship of fear between them and so the accused has a distinct advantage, and will press this home.
Manisha , UK