>Marc Horne
>Tuesday November 29 2022, 12.01am GMT, The Times
>Survivors of rape and sexual assault are to urge a senior cabinet member to remove the need for corroboration, claiming it would open the “gateway to criminal justice”.
>Uniquely, Scots law requires two independent pieces of evidence to bring a case to court.
Campaigners claim the burden of proof in sexual crimes is too high.
>Representatives of Speak Out Survivors, founded by women who claim they were denied justice, will meet Keith Brown, the justice secretary, today and urge him to commit to reform.
>The Scottish government has already backed removing the not proven verdict as an option for juries, a move which Nicola Sturgeon said would be “a change of truly historic significance”.
>As part of a wider overhaul, complainers in sexual assault cases will be guaranteed legal protection to maintain their anonymity.
>Speak Out Survivors has welcomed the changes but will urge Brown to go further still.
>“Corroboration is outdated and at odds with a modern criminal justice,” said Emma Bryson, a spokeswoman. “Like not proven it predominantly impacts victims of sexual domestic offences. Corroboration is simply a method of excluding evidence from consideration unless it fits into certain specific categories.
>“It relies heavily upon forensic evidence or eyewitnesses being present at the scene of the crime, both of which are frequently absent in cases of sexual and domestic offences, and it takes no account of the source or quality of evidence provided.”
>She added: “We describe corroboration as the gateway to criminal justice; if evidence meets its stringent requirements then the gateway opens and access to justice is granted, but if the evidence does not fit neatly into a specific category then there is no access to justice.
>“On average, only 10 per cent of reported sexual offences pass the test while 90 per cent never make it through the gateway.”
>Bryson helped to found the group due to the overwhelming sense of injustice she felt after the corroboration rule let the man who raped her in childhood avoid facing justice. The police told her that the abuser would have been prosecuted in England.
>Bryson said that the group was hopeful of getting a commitment to radical change from Brown.
>“Bold choices are urgently needed and there will never be a better time to deliver them,” she said.
>“Mr Brown has a unique opportunity to change the legal landscape for all victims and survivors of sexual offences in Scotland and not just the 10 per cent of cases currently reaching prosecution.”
>In 2018-19 there were 2,255 rapes and attempted rapes reported in Scotland, but only 247 were prosecuted.
>The senators of the College of Justice said: “The view of the current judges, by a majority of two to one, is that the rule requiring corroboration ought to be abolished.”
>However, the Faculty of Advocates, an independent body of lawyers, claimed that corroboration was a “safeguard in protecting against miscarriages of justice”.
>The Scottish government said: “We take very seriously the concerns that Speak Out Survivors have.”
I’m not certain, but do they want to get rid of providing actual evidence? Not sure here
Need to be careful they don’t just allow hearsay as evidence here:
I know a girl who lied about being raped. The bloke lost all of his friends and family before it came out years later she had lied. Ruined his life over nothing.
It would be a flawed system to lower the bar in order to gain more convictions. It sucks, but it’s based on evidence.
Not having to wait years for a trial is, to my mind, the most effective thing that could be done to improve the criminal justice system and help rape victims at the moment.
Lowering the burden of proof isn’t necessarily going to help anyone if actually all that happens is an uptick in successful appeals by both the (presumably quite rarely) falsely accused and actual rapists. Or if all that happens is more victims get their day in court, but cases are dismissed by judges before a trial can actually begin.
This isn’t *really* about what you would call the burden of proof as such, or about the question of beyond reasonable doubt versus balance of probabilities (the standard of proof, and what most people will think of when this comes up).
This is about a specific doctrine in Scots law referred to as corroboration. The gist of that doctrine is that you need at least two witnesses before someone can be convicted of an offence.
There have already been various calls for corroboration to be reformed or abolished. It is obviously particularly problematic in cases where the nature of the allegation makes it unlikely that there will be more than one witness – such as sexual assault or rape cases.
The “lower burden of proof” here seems to just be bringing the standard down to the same standard that England has.
In Scotland you need two independent pieces of evidence to bring a case to court, they want to change this down to just one piece of evidence needed for it to go to court, like in England.
They haven’t asked for any change in the burden of proof needed to prove that someone is guilty.
“Uniquely, Scots law requires two independent pieces of evidence to bring a case to court. Campaigners claim the burden of proof in sexual crimes is too high.”
Title seems a little misleading since the “lower burden of proof” is to bring cases to court, not to obtain convictions. Also, the article suggests that current “burden of proof” is unique to Scotland and isn’t required in English law.
I can tell most people didn’t read the article.
I think it makes perfect sense. They aren’t asking for a decrease in the burden of proof **for conviction**. Under Scot’s law, you need 2 separate pieces of evidence to bring about a court hearing. So we’re talking about just getting your case heard by a jury and judge. They are asking for a decrease in the burden of proof **for a hearing**.
Seems perfectly fine to me.
I’m not familiar with the nuances of rape cases in the UK, but burden of proof is very important if you want to convict someone beyond a reasonable doubt. Just because you make it easier to convict someone doesn’t mean a jury will side with you based on circumstantial evidence.
Rape victim here, who was about to offer up a long rant on why this would be a terrible move for criminal justice. I then read the article, and found that oh no, it’s a deliberately misleading headline.
Of course, lowering the burden of proof for a conviction would be an incredibly bad thing; the presumption of innocence requires the prosecution to prove guilt beyond a reasonable doubt and in my opinion it should always stay that way. Making it easier to get a case in front of a judge however just increases access to justice, and cases in which the prosecutor has failed to do their job will be thrown out.
How about laws that guarantee the anonymity of the accused so people can stop weaponising accusations and demonising potentially innocent people. Accused should be by law anonymous until proven guilty and people spreading their identity during the proceeding should be prosecuted
Headlines like this one are designed to drum up a mob. Here’s what they should append in…
(to the same level as England) In Scotland*
Try reading the article, OP posted in the comments before being offended.
Trigger warning: Contains references to sexual assault
I don’t believe there should be a lower burden of proof. There is a compromise here from the potential innocent party of a false sentence, and I’d rather we follow due process. Countries with laws like this but on the man’s side are rife with abuse of the power given, and I can’t see it ending well here.
When it happened to me, I was incredibly drunk and the family friend in question put me in his bed and took advantage. All I wanted was for my family to cut the person off so both of us could move on with our lives (unfortunately didn’t happen but that’s another story). I also filed a police report so if he did do it again my record would be brought up.
If it went to court and there was a lower burden of proof? Sure, in my situation it would have meant he’d be in jail. But would that really convince people they did what they did? Does it actually lower the credibility of the survivor because of the inherent failure in due process? I think some people may think this is what they want, but the repercussions on not only on the victim, but the potential victim of a false claim haven’t really been considered with weight.
As a survivor of rape, i think this is a very, very bad idea. Gaining more convictions should not be the goal here.
I would rather see reforms in how rape victims are treated by police, and procedures around that. This is a horrible idea though, and will only lead to both a higher rate of wrongful convictions and to women being believed less about rape, should the bar be lowered.
Once again, the majority of comments are all about ‘But what if lying?’
Every. Time.
(Also, read the damn article).
It’s very sad to read through these comments. To put my own view, I think it’s a worse ‘crime’ to put someone innocent in prison than to let a potentially dangerous criminal walk free. I hate that I feel that way, tbh. This is not a CRIME problem. It’s a SOCIETAL problem. Without more communication and clarity between partners immediately before sex, this will continue and generally end up with a he said/she said scenario in court. Lose/lose for all sides as both victim and accused will have their lives severely affected. One small point on false accusations – whatever their current level – if anonymity was enforced for accused as well as accuser, this would remove motive behind at least SOME of the false accusations (that just the accusation would ruin the falsely-accused life immediately). I get the feeling that some of the false accusations are an attempt to force the accused into some form of action he doesn’t want to do – pay money, leave his wife, etc.
The criminal justice system is just not great at dealing with these cases. The victim (or victims) have to recount a harrowing experience in court, and get aggressively cross-examined on the details. *Not* doing this would also be a horrible option as you need to be pretty fucking sure the defendant is actually guilty before you have the government ruin their life. That also means the burden of proof is quite high, but the binary outcome means you have actual rapists being effectively presented as “innocent”, and of course that means there are real victims that are believed to have made false accusations.
Add to that the entire system is underfunded and barely functional.
I have a friend who was accused of raping someone without a condom at a gay bar. There was no rape kit done, no evidence collected, police turned up in the middle of the day and took him to the station in cuffs.
My friend is a trans man. He doesn’t have a dick. He can’t produce ejaculate. These two facts directly contradicted the statement the accuser gave, but after hearing this the police STILL held my friend for the maximum 24 hours without charges.
Despite the fact that the crime was impossible and there were no charges, the police still called my friend like 2 weeks later threatening to put him on the sex offenders register.
When he pointed out that the entire process was insane I guess someone finally used a brain cell and he never heard from them about it again.
Accuser is roaming free, we have no idea why he accused my friend of doing that.
On the other hand, I’ve heard story after story after story of victims being completely ignored. No justice, not even an attempt. These anecdotes are sadly so common that you don’t even need an example because you probably have your own.
The system is definitely broken and needs changes, but lowering the burden of proof will result in innocent people getting their lives ruined.
Interesting how I’ve never heard of somebody who has had their life ruined by a fake rape allegation but have met multiple women who have been raped or otherwise abused. Commenters on articles like this will have you thinking that the inverse is true and every other lad has had an accusation made about him…
20 comments
>#Rape survivors call for lower burden of proof
>Marc Horne
>Tuesday November 29 2022, 12.01am GMT, The Times
>Survivors of rape and sexual assault are to urge a senior cabinet member to remove the need for corroboration, claiming it would open the “gateway to criminal justice”.
>Uniquely, Scots law requires two independent pieces of evidence to bring a case to court.
Campaigners claim the burden of proof in sexual crimes is too high.
>Representatives of Speak Out Survivors, founded by women who claim they were denied justice, will meet Keith Brown, the justice secretary, today and urge him to commit to reform.
>The Scottish government has already backed removing the not proven verdict as an option for juries, a move which Nicola Sturgeon said would be “a change of truly historic significance”.
>As part of a wider overhaul, complainers in sexual assault cases will be guaranteed legal protection to maintain their anonymity.
>Speak Out Survivors has welcomed the changes but will urge Brown to go further still.
>“Corroboration is outdated and at odds with a modern criminal justice,” said Emma Bryson, a spokeswoman. “Like not proven it predominantly impacts victims of sexual domestic offences. Corroboration is simply a method of excluding evidence from consideration unless it fits into certain specific categories.
>“It relies heavily upon forensic evidence or eyewitnesses being present at the scene of the crime, both of which are frequently absent in cases of sexual and domestic offences, and it takes no account of the source or quality of evidence provided.”
>She added: “We describe corroboration as the gateway to criminal justice; if evidence meets its stringent requirements then the gateway opens and access to justice is granted, but if the evidence does not fit neatly into a specific category then there is no access to justice.
>“On average, only 10 per cent of reported sexual offences pass the test while 90 per cent never make it through the gateway.”
>Bryson helped to found the group due to the overwhelming sense of injustice she felt after the corroboration rule let the man who raped her in childhood avoid facing justice. The police told her that the abuser would have been prosecuted in England.
>Bryson said that the group was hopeful of getting a commitment to radical change from Brown.
>“Bold choices are urgently needed and there will never be a better time to deliver them,” she said.
>“Mr Brown has a unique opportunity to change the legal landscape for all victims and survivors of sexual offences in Scotland and not just the 10 per cent of cases currently reaching prosecution.”
>In 2018-19 there were 2,255 rapes and attempted rapes reported in Scotland, but only 247 were prosecuted.
>The senators of the College of Justice said: “The view of the current judges, by a majority of two to one, is that the rule requiring corroboration ought to be abolished.”
>However, the Faculty of Advocates, an independent body of lawyers, claimed that corroboration was a “safeguard in protecting against miscarriages of justice”.
>The Scottish government said: “We take very seriously the concerns that Speak Out Survivors have.”
I’m not certain, but do they want to get rid of providing actual evidence? Not sure here
Need to be careful they don’t just allow hearsay as evidence here:
I know a girl who lied about being raped. The bloke lost all of his friends and family before it came out years later she had lied. Ruined his life over nothing.
It would be a flawed system to lower the bar in order to gain more convictions. It sucks, but it’s based on evidence.
Not having to wait years for a trial is, to my mind, the most effective thing that could be done to improve the criminal justice system and help rape victims at the moment.
Lowering the burden of proof isn’t necessarily going to help anyone if actually all that happens is an uptick in successful appeals by both the (presumably quite rarely) falsely accused and actual rapists. Or if all that happens is more victims get their day in court, but cases are dismissed by judges before a trial can actually begin.
This isn’t *really* about what you would call the burden of proof as such, or about the question of beyond reasonable doubt versus balance of probabilities (the standard of proof, and what most people will think of when this comes up).
This is about a specific doctrine in Scots law referred to as corroboration. The gist of that doctrine is that you need at least two witnesses before someone can be convicted of an offence.
There have already been various calls for corroboration to be reformed or abolished. It is obviously particularly problematic in cases where the nature of the allegation makes it unlikely that there will be more than one witness – such as sexual assault or rape cases.
The “lower burden of proof” here seems to just be bringing the standard down to the same standard that England has.
In Scotland you need two independent pieces of evidence to bring a case to court, they want to change this down to just one piece of evidence needed for it to go to court, like in England.
They haven’t asked for any change in the burden of proof needed to prove that someone is guilty.
“Uniquely, Scots law requires two independent pieces of evidence to bring a case to court. Campaigners claim the burden of proof in sexual crimes is too high.”
Title seems a little misleading since the “lower burden of proof” is to bring cases to court, not to obtain convictions. Also, the article suggests that current “burden of proof” is unique to Scotland and isn’t required in English law.
I can tell most people didn’t read the article.
I think it makes perfect sense. They aren’t asking for a decrease in the burden of proof **for conviction**. Under Scot’s law, you need 2 separate pieces of evidence to bring about a court hearing. So we’re talking about just getting your case heard by a jury and judge. They are asking for a decrease in the burden of proof **for a hearing**.
Seems perfectly fine to me.
I’m not familiar with the nuances of rape cases in the UK, but burden of proof is very important if you want to convict someone beyond a reasonable doubt. Just because you make it easier to convict someone doesn’t mean a jury will side with you based on circumstantial evidence.
Rape victim here, who was about to offer up a long rant on why this would be a terrible move for criminal justice. I then read the article, and found that oh no, it’s a deliberately misleading headline.
Of course, lowering the burden of proof for a conviction would be an incredibly bad thing; the presumption of innocence requires the prosecution to prove guilt beyond a reasonable doubt and in my opinion it should always stay that way. Making it easier to get a case in front of a judge however just increases access to justice, and cases in which the prosecutor has failed to do their job will be thrown out.
How about laws that guarantee the anonymity of the accused so people can stop weaponising accusations and demonising potentially innocent people. Accused should be by law anonymous until proven guilty and people spreading their identity during the proceeding should be prosecuted
Headlines like this one are designed to drum up a mob. Here’s what they should append in…
(to the same level as England) In Scotland*
Try reading the article, OP posted in the comments before being offended.
Trigger warning: Contains references to sexual assault
I don’t believe there should be a lower burden of proof. There is a compromise here from the potential innocent party of a false sentence, and I’d rather we follow due process. Countries with laws like this but on the man’s side are rife with abuse of the power given, and I can’t see it ending well here.
When it happened to me, I was incredibly drunk and the family friend in question put me in his bed and took advantage. All I wanted was for my family to cut the person off so both of us could move on with our lives (unfortunately didn’t happen but that’s another story). I also filed a police report so if he did do it again my record would be brought up.
If it went to court and there was a lower burden of proof? Sure, in my situation it would have meant he’d be in jail. But would that really convince people they did what they did? Does it actually lower the credibility of the survivor because of the inherent failure in due process? I think some people may think this is what they want, but the repercussions on not only on the victim, but the potential victim of a false claim haven’t really been considered with weight.
As a survivor of rape, i think this is a very, very bad idea. Gaining more convictions should not be the goal here.
I would rather see reforms in how rape victims are treated by police, and procedures around that. This is a horrible idea though, and will only lead to both a higher rate of wrongful convictions and to women being believed less about rape, should the bar be lowered.
Once again, the majority of comments are all about ‘But what if lying?’
Every. Time.
(Also, read the damn article).
It’s very sad to read through these comments. To put my own view, I think it’s a worse ‘crime’ to put someone innocent in prison than to let a potentially dangerous criminal walk free. I hate that I feel that way, tbh. This is not a CRIME problem. It’s a SOCIETAL problem. Without more communication and clarity between partners immediately before sex, this will continue and generally end up with a he said/she said scenario in court. Lose/lose for all sides as both victim and accused will have their lives severely affected. One small point on false accusations – whatever their current level – if anonymity was enforced for accused as well as accuser, this would remove motive behind at least SOME of the false accusations (that just the accusation would ruin the falsely-accused life immediately). I get the feeling that some of the false accusations are an attempt to force the accused into some form of action he doesn’t want to do – pay money, leave his wife, etc.
The criminal justice system is just not great at dealing with these cases. The victim (or victims) have to recount a harrowing experience in court, and get aggressively cross-examined on the details. *Not* doing this would also be a horrible option as you need to be pretty fucking sure the defendant is actually guilty before you have the government ruin their life. That also means the burden of proof is quite high, but the binary outcome means you have actual rapists being effectively presented as “innocent”, and of course that means there are real victims that are believed to have made false accusations.
Add to that the entire system is underfunded and barely functional.
I have a friend who was accused of raping someone without a condom at a gay bar. There was no rape kit done, no evidence collected, police turned up in the middle of the day and took him to the station in cuffs.
My friend is a trans man. He doesn’t have a dick. He can’t produce ejaculate. These two facts directly contradicted the statement the accuser gave, but after hearing this the police STILL held my friend for the maximum 24 hours without charges.
Despite the fact that the crime was impossible and there were no charges, the police still called my friend like 2 weeks later threatening to put him on the sex offenders register.
When he pointed out that the entire process was insane I guess someone finally used a brain cell and he never heard from them about it again.
Accuser is roaming free, we have no idea why he accused my friend of doing that.
On the other hand, I’ve heard story after story after story of victims being completely ignored. No justice, not even an attempt. These anecdotes are sadly so common that you don’t even need an example because you probably have your own.
The system is definitely broken and needs changes, but lowering the burden of proof will result in innocent people getting their lives ruined.
Interesting how I’ve never heard of somebody who has had their life ruined by a fake rape allegation but have met multiple women who have been raped or otherwise abused. Commenters on articles like this will have you thinking that the inverse is true and every other lad has had an accusation made about him…