30th January 2017

PhD student Emma Forbes writes about the implications of landmark civil ruling

“Devastated, upset and confused.”

That’s how Denise Clair felt in July 2011 when she learned there was to be no prosecution of the two men she had accused of rape: footballers David Goodwillie and David Robertson.

This month, some six years after the incident at a flat in West Lothian, the Court of Session awarded her damages of £100,000.

The focus of media reporting has been on the professional positions of the two defenders and the fact that Ms Clair felt let down by the Crown decision not to prosecute. 

The myth of disbelief

Describing her reaction to the Crown Office’s decision not to prosecute, the ruling states: “She found the decision difficult to understand and had felt that she had not been believed.”

The difficulties in obtaining criminal convictions in rape cases are well documented. The alarming aspect of Ms Clair’s testimony is that she felt that she hadn’t been believed and that she did not understand the decision.  The fact that the available evidence is not sufficient to satisfy the onerous burden of proof in a criminal court does not mean that she was not believed.

One can only hope that the introduction of the Victims and Witnesses (Scotland) Act 2014 – introducing the Crown duty to give reasons for their decisions to victims of crime – may provide greater opportunity for the Crown to be more open in their communication with victims and dispel the myth that they are not believed:  A flurry of recent policies and declarations of good intent point towards this.

No doesn’t mean yes

As tweeted by Glasgow University’s Professor James Chalmers: “No means No but the absence of No doesn’t mean Yes.”  In fact, yes doesn’t mean consent, unless there is a reasonable belief in free agreement: Lord Armstrong adopted the definition of rape in the Sexual Offences (Scotland) Act 2009: a criminal statute. What does this mean?  If the criminal definition is being applied in the civil court, is it a back door for cases where there isn’t enough evidence for a criminal trial? This would be a complete misunderstanding of the judgment. The fact that the civil and criminal courts are using the same language to talk about rape is helpful: it frames society’s understanding, which can only raise the profile of the wrongdoing.

Victim, Complainer, Pursuer, Survivor

The media reports may have focused on the two footballers, but really this is a story of a young woman who has challenged society’s view of rape through her pro-active response: she was the pursuer after all. Let us hope that this is only the beginning.