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SSJA SHORTLIST: Underwear or Evidence
This year, Gender Equal Media Scotland is sponsoring a Scottish Student Journalism Award to highlight the importance of treating women equally - as employees, as contributors and as subjects of media attention - to a new generation of journalists. Six entries made the shortlist and in the lead up to the awards ceremony - taking place on 30 May 2019 - we'll be publishing them here. We wish all the shortlisted authors the best of luck, and we hope you enjoy reading these pieces as much as we did.
Frida Kaarbø Moen, Maria Hansen, and Naina Bhardwaj are three recent graduates of the University of Strathclyde. They are all of different backgrounds and nationalities, but share a common interest in human rights and equality. When tasked with writing a data-driven story they decided to do just that. In their research they came across the numbers for rape in Scotland and decided this was definitely something they needed to write about.
“You have to look at the way she was dressed. She was wearing a thong with a lace front.”
These words are spoken by the defense attorney trying to prove the alleged innocence of the man who raped her. The man, 10 years her senior, is present at the trial. And the attorney defending him, carelessly dangling the 17-year-old’s underwear for the world to see, is a woman.
This might sound far-fetched to most if it wasn't for the fact that it happened a month ago in Ireland. The story, published by multiple news newspapers across the British isles in November this year, led to outrage in the streets of Dublin. Crowds of women were protesting the ruling by placing underwear on the steps of the High Court, but the jury judging the young girl’s case remained unaffected. They did not convict the man; they convicted the girl of lying.
It seems to have become a trend, as can be seen through Scotland’s high acquittal rates. Early this year, the Scottish government published statistics for the criminal proceedings in 2016-2017, issued by the police and the Crown Office. The data shows shocking numbers concerning the acquittal rates of rape and other sexual assault cases over the last decade in Scotland.
The crimes with the highest acquittal rate was rape and attempted rape. In 2016-2017 a total of 251 men in Scotland were taken to court on these grounds. Out of the 251 alleged rapists, only 98 were deemed guilty and convicted for their crimes. The rest of the cases were acquitted either due to them being ruled ‘not guilty’ after the prosecution failed to prove the opposite, or because the defendants plea of ‘not guilty’ was accepted.
The recent case in Ireland is one example of the methods defendants use in order to prove their clients’ innocence. Despite the trial gaining so much attention from the media for the disgraceful methods that were used, this is not the first time a piece of women's clothing has been used as ‘winning’ evidence.
THE TRUE STORY OF A REAL GIRL
Ailsa is a girl with gumption. She was raped by her partner at a young age, and although she had to carry the burden alone for a long time, she eventually found the strength to seek help. Since then, she has been outspoken about her experience and to us, but still wishes to remain unidentifiable, she talks about it with little hesitation:
“I was raped when I was 18 by an abusive partner. I was emotionally abused by this partner for the best part of three years and can account for two acts of sexual violence towards me.”
When she speaks, she sounds like a girl who’s had to tell her story many times. Her words are practiced and carefully chosen, but regardless of this, she is open and brutally honest. She uses the words ‘traumatic experience’ with a force that leaves no room for disbelief.
However, courtrooms and juries too often question the credibility of girls who come forward with their experiences. In more than 99% of rape reported cases the woman is statistically telling the truth. Even so, cases are being acquitted at a still higher rate. The remaining less than 1%, who are considered to be lying, rarely have an identified perpetrator for the assault. In the last decade, the percentage of court proceedings, which have resulted in the defendant being convicted for the crime of rape or attempted rape, lies at an average of only 45.5%, according to the statistics from the Scottish government. This concludes that over half of the proceedings in the last ten years have ended with an accused rapist walking free.
Marsha Scott, CEO of Scottish Women’s Aid is a busy woman. When we call her, she politely lets us know we will have to call her back. When we do catch her in a free moment, she is happy to share her opinion on the matter:
“These figures are testament to how insensitive we are towards victims of rape and sexual assault. Far too many rapists are getting away with it based on evidence like underwear and it’s time we changed what is and what isn’t acceptable during trial.”
The lowest conviction rate for rape and attempted rape was in 2008-2009 where only 36.84% of the accused were convicted. Almost a decade later, in 2016-2017, the percentage is at the second lowest it has been since the Scottish government started recording the cases, with a 39% conviction rate. Although it has been higher in previous years, with the highest in 2012-2013 being 55.72%, it has in the most recent published statistics drastically decreased by 10% compared to the previous period.
Furthermore, according to Scottish law, under the Sexual Offences Act of 2009, rape is defined as “penetration of the vagina, anus or mouth by the penis without consent”. Hence under this law, a woman cannot be convicted of rape in Scotland and therefore all the data shown under rape and attempted rape solely concerns men. Rape and any other sexual crimes committed by women will end up under the sexual assault section of the statistics, including aiding and abetting someone else to commit rape.
Yet an estimated 12,000 men are raped in the UK every year and more than 70,000 are sexually abused or assaulted. However Scottish law only began recognizing male victims as victims of rape and sexual assault in 2010 under The Sexual Offences (Scotland) Act. Research by Survivors UK, a non-profit which helps victims of male sexual abuse also found that the average time it take for a male victim to come forward is 26 years.
Not only have rape and attempted rape convictions gone down, but sexual assault convictions have also seen a decrease over the last decade. In 2007-2008 the convictions for sexual assault rested on 71%, while in 2016-2017, the conviction rate had gone down to 60%. In stark contrast, the rate of sexual assault crimes that were proceeded actually increased by 46% in this same time period, according to data from the Scottish Government .
This all poses the question of how the perpetrator gets away with rape and assault in half the cases on average when 9 out of 10 women tell the truth.
‘IT’S A CASE OF HE SAID, SHE SAID’
The director of Beltrami & Co, a law firm in Glasgow, which specializes in criminal law, Gary McAteer agreed to talk to us regarding the low conviction rates in Scotland, to this he said:
“The conviction rate is still very low despite very significant changes in the system to try to correct this. [In] many of these proceedings, it’s a case of ‘he said, she said’ and there can perhaps be no more difficult decision to make for a jury than in this situation.”
In other words, many of the rulings of acquittal come as a direct consequence of a lack of evidence against the accused. Likewise, proof of innocence is hard to find - unless you regard presenting a woman’s underwear or other pieces of clothing as proof of her being “promiscuous”. This seems to be a common practice, and has been used in a past court case in Scotland as well.
Ailsa tells us her friend’s story like this is all too familiar to her, the story of yet another time when a woman’s piece of clothing was used as evidence against her in the courtroom:
“A friend of mine was raped in her second year at university and took her case to court, but her abuser was found not guilty. The lawyer paraded her underwear around the courtroom and made her feel like a liar.”
That is one of the reasons why Ailsa did not want to take her abuser to court. She tells us of her first encounter with Rape Crisis Scotland and how they guided her away from a court proceeding in order to preserve her mental health.
“I first attended the Rape Crisis Center via one of their drop in sessions. Due to the nature of my rape, I was strongly advised against taking legal action because of how traumatic an ordeal it could end up being for me.”
Ailsa launches into talking about her experience in depth. She tells us how it took her two years of suppressing and trying to understand her rape before she sought help from Rape Crisis Scotland. In the two years prior, she had sprouts of severe depression and anxiety. With the support from Rape Crisis Scotland she realized that she had been suffering from PTSD.
A WITNESS STATEMENT OR A MEMORY TEST WITH AN AUDIENCE
Scotland’s most senior judge, Lord Carloway, has addressed the sentiment of not coming forwards as a victim of rape and of not feeling ready to seek help. He says that victims of rape and sexual assault should not have to appear in court. Earlier this year, Lord Carloway said that victims’ cross-examination should take place well before the trial and away from court. He said his “ultimate objective” was for victims to give filmed statements within 24 hours, which could then be used in the trial process. The judge added that rape trials could take up to three years before the case is settled, and that the way the system currently works can often be described as a “memory test”.
This falls in line with Ailsa’s story. She continues telling us about her experience, and for the first time, she can’t seem to meet our eyes.
“For seven months, I attended weekly sessions with a rape crisis counselor where we tried to unpack and unravel all that had happened in the three years I was with that abusive partner. The reason why I wish to remain anonymous is because I still fear people wouldn’t believe me, I can have so much doubt in my own mind that even one person questioning me would be immensely triggering. [The] trauma is for life and I know this will be a constant road to recovery and acceptance.”
SEXUAL VIOLENCE, AWARENESS AND #METOO
Eileen Maitland, an information and resource worker from Rape Crisis Scotland, told us how they offer information and emotional support for survivors of rape, including how to approach the legal system. She also talked about the rise in reports of sexual offences and outlined some factors that could have attributed to the change in the statistics:
“While figures for many crimes in Scotland are going down, for sexual offences they continue to rise, and it is not possible to know exactly what this is attributable to – it may be in part down to an increased confidence in reporting to the police, but it may equally be true that the number of crimes themselves have increased, or in fact that both of these factors have played a part.
“The #MeToo movement has raised awareness around sexual violence - it may be that in doing so, it has helped some people to speak out, knowing that they are not alone - that has certainly happened in the public sphere.”
While criminal defense lawyers may be reluctant to do use a victims clothing against him or her, they are bound by their duty to their client and what their client wishes. However, if one thing has come from the case of the 17-year-old girl in Dublin, it is that courtroom procedures need to be revised; using a child’s underwear as evidence is never the answer.
As McAteer of Beltrami & Co. concludes: “It is a troubling area much in need of research to protect all who are affected.”
And until the field has seen a change in the way they approach survivors, one thing is certain: Charities like Rape Crisis Scotland and SurvivorsUK are more important now than ever.
Ailsa looks like a girl who has reached the finale. She lets her shoulders fall, looks back and she says: “To be brutally honest, Rape Crisis Scotland saved my life.”
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