Letter: Why not think?
Murder is broadly defined and universally recognised as the wilful destruction of human life with unlawful intent. The “intent” required needs to be “unlawful” and the “destruction” needs to be “wilful” which generally means that you can’t commit murder by accident.
The crime of murder is recognised, both in Scotland and in many other jurisdictions around the civilised world, as having a wide range of degrees of culpability. The range runs all the way through professional gangland executions, terrorist mass murders, casual street violence and domestic strife. Some murders are what professionals in Scotland occasionally used to refer to as a “breach of the peace with a body at the end”.
The victim, however, in every case, was just as dead.
In some jurisdictions the distinctions can mean the difference between a death sentence and a lifetime in jail.
Rape, like murder, covers a broad range of criminal conduct ranging from “stranger rape” normally accompanied by extreme violence, through to “date rape” in its infinite variety where the issue is commonly whether or not the necessary consent was present.
In rape cases at present it is then down to the judge to decide where on the broad scale of culpability the sentence should fall. The jury are only allowed to decide whether or not it was “rape”.
It respectfully appears to me that instead of proposals to manipulate our entire system of criminal justice by abolishing juries in rape cases and introducing the nebulous concept of “trauma informed practice” our legislators would be better advised to approach the issue of rape by devoting more attention to the charge of rape itself.
Instead of having a “pilot” court without a jury and overseen by a newly invented “commissioner” for victims and witnesses, why not have a pilot in which the crime itself is subdivided into a variety of categories and leaving it to the jury to decide where on the scale the case they are trying should fall?
Why not allow the jury to express their conclusion in more nuanced and, if necessary, new prescribed alternative verdicts?
Why not take the views of the complainer into account in identifying where the case should appear on the scale in the first place?
Why not have a wider and better known scale of sentencing options available for the presiding judge to reflect the views of the jury as expressed in their verdict?
These are no more than the bare bones of just one, of perhaps many, alternative approaches to an issue which seems to have sent our legislators into a destructive spiral.
T.A Kevin Drummond