Woman sues former partner for alleged rape and domestic abuse in landmark case



Sheriff Court
Sheriff Court

A woman who claims she was raped by a former partner and that she was the victim of domestic abuse is suing her ex-boyfriend for damages in a landmark legal case.

The action will be heard in the Court of Session after a sheriff ruled that the case raised important matters of “public policy” and “novel questions of law” which should be decided by a senior judge.

Perth Sheriff Court heard that the parties, who have been anonymised to protect the identity of the pursuer, commenced their relationship in 1999.

According to the woman, “AB”, the abuse started from December 2006.

Full details of the allegations are not disclosed in the judgment, but the sheriff reveals that the circumstances are “not dissimilar” to those in the recent cases involving Stephen Coxen, who was sued for £80,000 for raping a St. Andrews University student, and footballer David Goodwillie, who was ordered to pay £100,000 damages to a woman he was found to have raped following a drunken night out.

‘Non-consensual sexual acts’

Among the “non-consensual sexual acts” alleged in this case is one of rape, which is denied by the defender, “CD”.

The pursuer also claims that she suffered domestic abuse, but this is thought to be the first case of its kind in which damages have been sought for personal injury as a result of an alleged rape and a “course of conduct” of domestic abuse by an ex-partner.

The court was told that the defender had been convicted in High Court in October 2017 and Perth Sheriff Court in February 2015 for offences relating to the present claim.

The defender argued that because of the importance and complexity of the case, the action should be remitted to the Court of Session.

CD’s lawyer said the issues raised were also of importance to the general public, as there was a lack of case law dealing with the matters raised.

There were no reported decisions dealing with the issue of quantification of damages or with instances in which damages were sought for a course of abusive behaviour.

The issues were said to be of “particular significance” in light of the current climate in which a great emphasis had been placed on prevention of domestic, including sexual, abuse and seeking recompense if acts amounting to such abuse did take place.

CD also claimed that the action may be “time-barred”, as virtually all of the incidents alleged by AB occurred outwith the three-year period prior to the action being raised in March 2018, which potentially raised the issue of whether the court should exercise its power under section 19A of the Prescription and Limitation (Scotland) Act 1973 to override the time limit and allow the case to proceed.

‘Public interest’

Sheriff Lindsay Foulis remitted the case to the Court of Session after observing that the issues raised were a matters of “public interest and concern”

In a written judgment, Sheriff Foulis said: “Firstly, the action was clearly of importance to the parties, and in light of the nature of the averments, clearly of importance to the defender. Any allegation of forcible penetration of another is particularly serious, notwithstanding one of the allegations appears to have resulted in a not guilty plea being accepted by the prosecution. 

“However, matters do not end there. Issues of non consensual sexual acts and domestic abuse are matters which have exercised and continue to exercise the public. 

“In the last two years there have been two decisions from courts of civil jurisdiction determining that defenders raped pursuers. It is not difficult to anticipate that further actions arising from similar alleged circumstances will be raised in the next few years. 

“In 2018 the Scottish Parliament passed the Domestic Abuse (Scotland) Act. Section 1 of that legislation is directed at a course of abusive behaviour which is likely to cause the other party physical or psychological harm. What is averred on the part of the pursuer in the present action certainly has all the characteristics of behaviour which would fall within the ambit of that section.

“In light of what has occurred in relation to alleged non consensual sexual acts, it is not difficult to anticipate that actions which fall within the ambit of section 1 will in due course form the subject matter of a number of civil actions. Against that background, there are a number of issues upon which it will be important to have a decision from the Court of Session.”

He continued: “The actions which constitute the basis of the pursuer’s claim, in line with many of the actions which found abusive behaviour in a domestic context, would each constitute a separate basis for an action for damages. Not surprisingly, however, an action or claim does not follow each individual act in such an alleged course of abusive behaviour. 

“The victim of the abusive behaviour is quite likely to thole instances of such behaviour for numerous reasons, such as the children, financial security, or feelings of affection for the perpetrator. Such understandable tolerance, however, does not sit easily with the provisions of the Prescription and Limitation (Scotland) Act 1973. 

“Section 17 refers to the commencement date of the triennium by reference to the date upon which injuries were sustained or, in the event of the injuries being sustained by a continuing act, the date upon which that act ceased. Every individual act of an abusive nature has the potential for causing injury to the alleged victim. Does the triennium accordingly commence with each such act? 

“Alternatively, can a course of conduct consisting of a number of acts of abusive behaviour be construed as one continuing act in terms of section 17(2)(a) and thus the triennium commences when the course of conduct comes to an end? It appears to me that where the action is based upon a course of abusive behaviour, the terms of section 17 may cause difficulties. 

“Accordingly, in light of the observations I have already made, I consider that it is important that a decision upon these matters is made by a judge in the Court of Session. 

“If section 17 does indeed cause difficulties, there is, of course, still section 19A of the 1973 Act which can be employed to override the triennium. That is an equitable power and once again I consider that it is important that guidance is provided by the superior court as to what the potential parameters for the successful operation of such a power should be in cases such as the present.” 

The sheriff added: “Finally, and perhaps as a consequence of these matters, difficult issues may arise regarding causation and quantification of damages. If certain actions complained of are determined to be time barred, does this have an effect upon the consequences for which the pursuer seeks compensation? Allied to this point are issues relating to quantification of damages. 

“I consider that the present action does raise matters of public policy and novel questions of law. To conclude, for the foregoing reasons I consider that the present action is of such importance and difficulty to justify the remit sought. 

“In all those circumstances, I consider that I should exercise discretion in favour of granting the motion. I consider that it is likely that the judgment in this case will be of such general importance to other cases that it is appropriate that it should carry the persuasive authority of a Lord Ordinary.”

© Scottish Legal News Ltd 2019



Other judgments by Sheriff Lindsay D R Foulis