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20 September 2023

Scotland’s stand against misogyny is an example to others

Jury-free rape trials are a necessary attempt to change a system stacked against women.

By Chris Deerin

I was discussing the Russell Brand allegations with a friend this week when she said something that took me aback. “If my daughter was raped, I don’t know if I’d want her to go to the police.”

Perhaps I shouldn’t have been shocked. We’re all aware of the horrors that victims of rape and sexual assault can be put through by the criminal justice system, and that the chances of conviction are small. And just look at the venom with which Brand’s high-profile and not so high-profile defenders are responding – sadly, they’re hardly the first to behave so abominably in such a situation.

But still. My friend is a formidable woman, the kind who could be described as morally upstanding and civically engaged. That she has been left feeling like this is profoundly depressing.

The most recently available data helps explain why she has. According to Scottish government figures, of the 2,176 rapes or attempted rapes reported to police in 2020-21, only 152 led to a prosecution. In 2021-22, just 51 per cent of rape and attempted rape trials resulted in a conviction, compared with a 91 per cent rate for crimes overall. Reported rapes and attempted rapes had increased to 2,498. As a whole, sexual crimes increased by 15 per cent, from 13,131 to 15,049, the highest level seen since comparable figures were first recorded in 1971.

We know there are reasons why the conviction rate is so low – including that these trials are often one person’s word against another. If prosecutors don’t think there’s a realistic prospect of conviction, they won’t proceed to trial. These most heinous of crimes are also the hardest to prove.

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As first minister, Nicola Sturgeon attempted to do something about this. She signed off a bill that would pilot judge-only rape trials for a time-limited period, as had been recommended by a review called Improving the Management of Sexual Offence Cases, chaired by Leeona Dorrian, Scotland’s second-most senior judge. The intention, Sturgeon wrote in a thoughtful and fair-minded article, is “to test whether or not judge-only trials could help address the deficit of justice in rape cases without compromising the right to a fair trial of those accused”.

[See also: Is meaningful action finally being taken against Pestminster?]

It’s an understatement to say that much of the legal profession, and defence lawyers in particular, are unconvinced. Murray Etherington, president of the Law Society, argued that “the right to a fair trial is a cornerstone of the Scottish criminal justice system. Even on a pilot basis, judge-only trials will put that fundamental right in jeopardy with no discernible benefits.”

He added: “By its very definition, a jury is a better reflection of Scottish society than a single judge can possibly be. Juries act as an essential and effective safeguard against the potential for unconscious biases to unfairly influence trial outcomes. Undermining the foundations of the Scottish justice system to increase conviction rates is a dangerous approach which will create a serious risk of injustice.”

This seems like a strong argument to me. But then – and admittedly I’m no lawyer – the current set-up already creates a serious risk of injustice, unless you believe that most reports by women of rape are false. And the case put by the Dorrian review seems just as reasonable: “The traditional arguments in favour of juries are met by equally compelling arguments for trial by judge alone, which cannot be left unexamined and ignored. This is a question which ought to be examined in much greater depth, with further jury research, and a fully evaluated pilot scheme to support an evidence-based approach… This would enable the issues to be assessed in a practical rather than a theoretical way.”

It’s possible to have sympathy with both sides. Sturgeon admits that “the arguments for and against are finely balanced”. Even though the prospect of juryless trials leaves me deeply uneasy, I find it hard to oppose a time-limited pilot. If it doesn’t work, if the lawyers’ concerns bear fruit, or if it is inconclusive, then the idea can be re-examined, shelved or canned. 

There are other, more easily supported measures being introduced by the devolved administration. Ministers have created a sexual assault response coordination service (SARCS), which is a self-referral phone service in each health board area, enabling victims over 16 years to access healthcare and request a forensic medical examination without first having to make a report to the police. This forensic evidence can be kept by the SARCS for a period of 26 months, in case people decide to involve the police further down the line. This at least gives women the opportunity to gather themselves and their strength before entering the criminal justice minefield.

In his recent Programme for Government, Sturgeon’s successor Humza Yousaf committed himself to legislation that will criminalise misogynistic conduct. This follows a 2022 report by the Labour peer and KC Helena Kennedy, which recommended making misogyny a hate crime, allowing judges to consider it as an aggravating factor when sentencing for other crimes, as they currently do with racism. The review also recommended the creation of three new offences: stirring up hatred against women and girls; public misogynistic harassment; and issuing threats of rape, sexual assault or disfigurement of women and girls either online or offline.

The police are worried about their capacity to investigate such allegations – which could arrive in some scale – and warn they would have to deprioritise other matters in order to cope.

There are and always will be good arguments against reforms of any kind in any policy area. Nevertheless, the daily climate in which women must exist remains grotesquely and shamefully weighted against them. 

The Scottish government’s gender law reforms, which have been blocked by Westminster – a decision that is being challenged in the Court of Session this week by devolved ministers – unleashed an explosion of misogynistic behaviour online and in person against their opponents. So too have the allegations against Brand. So too, seemingly, does anything any woman does that doesn’t fit the prescribed template. Casual and not-so-casual misogyny remains one of our society’s most engrained and deplorable habits, despite (and sometimes because of) the advances that have been made for women’s rights in recent decades. It is everywhere around us, all the time, and seemingly intractable. 

Enough. Enough, enough, enough. I find myself convinced that the way to tackle this meaningfully is to make some major, impactful changes to the law, see what happens and then adjust if necessary. The Scottish government is trying to do this, and for my friend and for every woman I know and don’t know, it has my support.

[See also: Five years on from #MeToo, what has actually changed?]

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