Convicted rapist loses mutual corroboration appeal based on paternity of complainer’s child

Lord Carloway
Lord Carloway

A man who was found guilty of the rape of his stepdaughter as well as incest under Section 2B of the Sexual Offences (Scotland) Act 1976 has lost his appeal against the former conviction.

The appellant, LW, argued that the complainer’s allegation of rape could not be corroborated by the fact that he had fathered her child by the very nature of the familial relationship and general domestic circumstances.

The appeal was heard in the Appeal Court of the High Court of Justiciary by the Lord Justice General, Lord Carloway, sitting with Lord Malcolm and Lord Turnbull.

Explained as a surrogacy arrangement 

The complainer had died before the trial. Her mother had married the appellant in 1978, when she was five. In a statement she gave to the police before she died, she stated that the appellant’s sexual abuse of her started when she was 13, and he began to rape her when she was 16. The appellant did not contest the conviction for incest on appeal.

The son of the appellant and the complainer was born in March 1992 when the complainer was 19 years old. The paternity of the child was established by DNA testing. In her evidence, the complainer’s mother explained this as a surrogacy arrangement wherein the complainer would artificially inseminate herself with the appellant’s semen in return for financial support.

The appellant’s mother also spoke to the domestic setting, confirming that the complainer called the appellant “dad.” A submission of no case to answer made by the appellant’s representative was repelled. The jury clearly rejected the surrogacy explanation, which the complainer’s mother made no reference to when she was initially asked about the allegations.

On appeal, it was submitted for the appellant that although an act of sexual intercourse had been proved by virtue of conception, there was no corroboration of lack of consent. The evidence of the domestic circumstances did not support or confirm the complainer’s account, and it was not unknown for sexual attraction to exist between parent and child.

In reply, the advocate depute submitted that evidence of the parental relationship was independent evidence capable of supporting the complainer’s. Furthermore, a jury would be entitled to hold that a girl would not choose to have sex with a man whom she considered to be, and called, her father and who was living with her mother in the family home.

Intense aversion 

The opinion of the court was delivered by Lord Carloway. He began: “The evidence of the complainer, in so far as demonstrating the occurrence of sexual intercourse, was corroborated by the joint minute of agreement that the appellant is the father of the complainer’s child. The issue is whether the relationship of, in effect, father and child, between the appellant and the complainer, and their living in the same household as the complainer’s mother, had the potential to provide corroboration of the complainer’s lack of consent.”

Explaining that the mere fact that the relationship was incestuous could not constitute corroboration on its own, he went on to say: “The vast majority of humans feel an intense aversion to the idea of having sexual relations with close family members with whom they have grown up in a family setting, even if they are not related by blood.”

He continued: “Where absence of consent is to be corroborated by circumstantial evidence, the question will be whether the circumstances are capable, in combination, of yielding an inference which supports or confirms the complainer’s testimony. When this arises as a question of sufficiency, the evidence relied upon by the Crown is to be taken at its highest. It is to be interpreted in the way most favourable to the Crown.”

Applying these principles to the present case, he said: “In the complainer’s situation, not only had she been in a close family relationship with the appellant, which was in effect one of parent and child, she had also been in that relationship since childhood. There was a significant age gap between the appellant and the complainer, albeit not one that would cause concern in relationships involving adults. The complainer’s mother was in a continuing relationship with the appellant.”

He concluded: “It is the combination of these circumstances, which permits an inference to be drawn, that provides confirmation or support for the complainer’s account that sexual relations with her step-father took place without her consent. The jury must have accepted this analysis of the available corroboration.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2021

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