Dr Stuart Waiton

Men in Scotland are now at risk of being branded ‘rapist’ for political and ideological reasons, following the Stephen Coxen case. Coxen was tried for the rape of Miss M in 2015 in the High Court, the verdict was not proven and Coxen walked away a free man. Three years later in a landmark ruling a judgment has been made against this man, in other words, he has been found guilty and been asked to pay £80,000 in damages. Perhaps worse than the financial hit, Coxen has been branded a rapist.

The civil justice system is the place were individuals use the law in relation to one another, so it could be argued, this a private affair between Coxen and Miss M, but that would be to ignore how and why this case was carried out in a civil rather than a criminal court.

This is not the first case of this kind. In 2017 the footballer David Goodwillie was taken to a civil ‘court’ for rape and fined £100,000. On this occasion, Goodwillie’s case did not even make it to the High Court due to a lack of evidence. Nevertheless, despite this apparent lack of evidence the sheriff ruled against him. Stephen Coxen, on the other hand, had a trial and was then, essentially, put on trial for the same act a second time, thus breaching the principle of double jeopardy.

Some would argue that the civil justice system is different and therefore this is not a breach of this principle. Technically, they have a point. But the reality of the matter is that in both cases the judgment about an extremely serious crime has been forced through the back door of the Sheriff Court.

Just as the Goodwillie case set a precedent for rape being examined in a civil court. Coxen’s case is the first case of its kind in more than 100 years. This risks taking us back not only to ‘Victorian values’ but to a pre-modern situation where our victim centred form of justice becomes based more upon vengeance and prejudice than upon justice.

The problem with a rape case being ruled upon in a civil court is that the weight of evidence in a civil case is ‘the balance of probabilities’ as opposed to the need to prove an act ‘beyond a reasonable doubt’. Rape is clearly a criminal matter and should, as it has been for generations, be dealt with in the highest court of the land, overseen by a jury and needing corroborating evidence.

In a civil case, like Coxen’s, the balance of probabilities benchmark means that guilt can be found by an individual, in this case Sheriff Robert Weir, based simply upon an opinion about the credibility of the witnesses – there is no need for concrete evidence. Sheriff Weir heard the story of a drunken night in 2013 that ended in sex between Coxen and the unnamed woman and drew the conclusion that Stephen Coxen ‘took advantage’ of Miss M, who was, in the sheriff’s opinion, too drunk to give consent.

It would be harsh to blame the women in question for wanting to have a second trial and one that needs no corroboration. It may be harsh to even question the Sheriff’s ruling, after all, this is a civil process and so long as you believe there is a 51 per cent chance that the alleged victim is telling the truth, Sheriff Weir would have to act accordingly. What is wrong however is that the Scottish criminal justice system deems it acceptable to put a man on trial for the same act twice and in a court where a guilty verdict is a far more likely outcome.

This is not a matter of taking the side of men or women, it is simply a matter of justice. Justice is, or should be, a universal system that treats everyone the same and is one that is based on objectivity and evidence. These principles of law, coupled with the need to prove guilt beyond a reasonable doubt have been the bedrock of criminal justice in this country and are some of the most enlightened and progressive aspects of modern society. But they are being lost.

So why is this happening? One reason is that the criminal justice system across the UK is becoming victim centred. This sounds reasonable, but not when it means that the scales of justice are unbalanced in an attempt to ‘find closure’ for victims at the expense of due process and evidence. The other is the concern about the difficulty of finding guilt in rape cases, something that has become more of a political issue as concerns and campaigns about sexual crimes and harassment heighten.

What we are now witnessing is the Scottish justice system, the state and the government all pushing to convict men of rape.

In the Goodwillie case, the woman in question was supported by the UK government agency, the Criminal Injuries Compensation Authority. She was awarded £11,000 for what they believed was a rape, before Goodwillie stepped into the Sheriff Court. In the case of Stephen Coxen, Miss M received the support of the Scottish Legal Aid Board. In other words, if we ‘follow the money’ it leads back to the state and government funding this new development.

What is more, the money for the Coxen case came from a special fund within the Legal Aid Board, set up specifically to pursue cases of gender-based violence. Here we find a further problem because the very idea of gender-based violence, or at least the understanding of this by the Scottish government, is both political and ideological and stems from a particular, one-sided, and often extreme brand of feminism.

In the Scottish government’s Equally safe delivery plan, published in 2014, we are informed that gender based violence is a ‘function of gender inequality, that is an abuse of male power and privilege’, and that ‘women and girls experience violence and abuse because they are women and girls – and because they continue to occupy a subordinate position within society in relation to men’.

This feminist ideology that has been adopted by the government stems from a belief that we live in a patriarchal society based on gender inequality, enforced by men, who have power, over women, who do not. It is a highly contested ideology and one I suspect the vast majority of the Scottish electorate do not subscribe to. It is also an ideology that at its most extreme has resulted in the claim that ‘all men are potential rapists’ and that abuse of men by women is an impossibility: If power lies in the hands of men, the argument goes, it would be oxymoronic to believe in violence ie power, of women against men.

That this completely one-sided understanding of gender based violence has been adopted by the government is significant, as is the lack of political protest or opposition to it. The police and the criminal justice system more generally does not subscribe to this feminist doctrine, if it did so openly, it would no longer be possible to even suggest that there is a balance to the justice system. But it would be difficult to imagine that it does not influence how our system of justice operates.

The idea of gender based violence has become a political issue and tool, one where the idea of #believe has become uncoupled from criminal justice processes and become instead a moral position taken by ‘right thinking people’. The Scottish government is now funding rape cases through the back door and there are rumoured to be more cases in the pipeline. The result is that every failed rape case can now be tried twice and many more men will be branded rapists based on the balance of probabilities and the pressure on sheriffs to #believe.

What we are witnessing is the destruction of justice.

Dr Stuart Waiton is an academic and the author of Snobs Law: Criminalising Football Fans in an Age of Intolerance. This article first appeared in The Herald.