Eamon Keane

The debate around civil actions for damages in rape cases is no doubt a topic which is of considerable interest to the profession and the wider public. That being said, I was astounded by both the inaccuracy and tone of the piece reproduced in yesterday’s SLN by Dr Waiton (Do civil rape cases mark the ‘destruction of justice’?). The piece displays a remarkably poor grasp of the reality of Scottish civil and criminal legal procedure. An action for damages for injuries sustained as a result of a criminal act has long been competent in this jurisdiction (see for example Jalena Vaickuviene and others v J.Sainsbury plc [2013] CSIH 67).

The scarcity of such actions in relation to allegations of rape is no doubt attributable to the difficulties inherent in financing such an action in the first place and the likelihood of being able to enforce decree if successful. Neither of these issues is mentioned let along engaged with in any meaningful way whatsoever in Dr Waiton’s article. Perhaps that is because the legal reality doesn’t fit with the author’s constructed political narrative that men are somehow the “victims” of the criminal justice system as a result of state-sanctioned extreme feminism.

Turning to the language deployed throughout the piece itself. I found the lack of clarity troubling. To take but a few examples it was stated that “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’. Presumably the “standard of proof” is what is being referred to here?

Another puzzling statement reads “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”. “Guilt” here is completely inappropriate but presumably deliberately erroneously deployed. I have no idea what is being alluded to by the reference to “concrete” evidence. Is the point made here supposed to be about the contrasting thresholds of sufficiency of evidence in criminal and civil procedure? If so, why doesn’t the piece say so explicitly?

In any event, I’d be interested in reading what Dr Waiton believes passes for “concrete” evidence in a criminal prosecution of rape and what he believes jurors do when considering whether to accept the evidence of a witness in a criminal trial. He may be in for a surprise. I was quite frankly bemused to read the comments relating to the Scottish Legal Aid Board. We are told that if one “follows the money” one can deduce that the state is funding “this development.” Is Dr Waiton aware that SLAB also funds the defence of those accused of rape? And that they also grant legal aid for actions against the same Scottish government that he presumably thinks is calling the shots behind the scenes? The idea that SLAB is somehow part and parcel of a shady feminist conspiracy is, quite frankly, laughable.

What struck me most about the piece though, leaving aside the various inaccuracies, was the complete lack of any proposed solutions by the author to the perceived problem. What is it that can be done to save us from this “extreme brand of feminism” that is destroying “justice”? Is Dr Waiton proposing that we deny a delictual right of action to anyone following any wrong that is also considered a crime under our law? That seems to me to be the logical conclusion to the various criticisms made in the piece. If that is what “justice” requires, it may have made sense to say so directly and thereafter engage with the reality of what such a restriction would actually entail for our judicial system and why such a restriction would be patently absurd.

To talk as Dr Waiton does, of “the criminal justice system putting men on trial twice” and branding “them rapists for political and ideological reasons” is in my opinion as misleading as is it lamentably reductive of a complex issue. I say that as someone who has first-hand experience of working in the criminal justice system acting for those accused of rape. There is a legitimate debate to be had about the difficult interaction of criminal and civil liability in this area in Scotland. I’d respectfully suggest, however, that if one wishes to contribute to that debate in a constructive fashion, it would be best to do so armed with an adequate understanding of the basic legal processes and substantive law involved.

Eamon Keane is a solicitor, co-editor of Raitt on Evidence: Principles, Policy and Practice and convenor of the Scottish Legal Action Group.