Opinion: Civil cases for rape are access to justice, not destruction of justice

The Scottish Women’s Rights Centre (SWRC) and JustRight Scotland (JRS) are deeply concerned by the publication of the article in this week’s Herald: “Stuart Waiton: Scots men are at risk of being branded ‘rapist’ for political reasons” and subsequent blog in Scottish Legal News: “Do civil rape cases mark ‘destruction of justice’?”.

While we welcome debate around the case of AR v Stephen Daniel Coxen in which our client succeeded in establishing in civil proceedings that she was raped, there is a responsibility on lawyers and the legal community to ensure that the debate starts from an informed and accurate place.

Sadly, this article and the points made within it are based on a misunderstanding of the Scottish legal system, and therefore takes us no further forward.

It heartens us to see that legal commentators have taken to social media and that solicitors have responded to the opinion piece by Dr Stuart Waiton carried by Scottish Legal News to highlight their concerns around this article and seek to correct some of the errors.

Some key points warrant repeating:

  • Within civil proceedings, a person cannot be “found guilty”;
  • This civil case does not “breach the principle of double jeopardy”. In any event, it is possible in Scotland, in limited circumstances, for an accused to be put on trial for a second time within the criminal justice system;
  • Civil actions can legitimately be taken by one person against another where there has been an actionable civil wrong (for example, assault or rape - this is clear in law);
  • The standard of proof is indeed different, however this does not mean that there is a lack of evidence. A substantial level of evidence is required, and these are extremely difficult cases. In the Coxen case, Sheriff Weir QC heard from 16 witnesses during the course of seven days of evidence and there was well over a thousand pages of documentary evidence. In his decision, Sheriff Weir noted that, “evidence should be scrutinised with care” (para 155);
  • A legal aid certificate can only be granted when strict legal and financial tests are met, and is available to those pursuing or defending such an action;
  • The lack of a criminal conviction does not mean that the crime has not taken place. The statistics cannot be ignored – there are problems with establishing sexual crimes within criminal proceedings in Scotland;
  • Comments such as referring to the Court of Session as a ‘court’ within the article undermine the Scottish legal system.

This is a serious case raising important questions. Now is the time for careful consideration, informed debate and a serious response.