Man acquitted of rape found to have raped student following civil action

Stephen Coxen, 23, was acquitted after a High Court trial when a jury found the charge “not proven”, but the complainer in that case raised a personal injury claim against him.

A sheriff in the All-Scotland Personal Injury Court ruled that the woman, “AR”, had been raped by defender in the early hours of Saturday 14 September 2013, after concluding that he “took advantage” of the pursuer when she was in an “intoxicated state” and lacked capacity to give “free agreement” to sexual intercourse.

Lizard Lounge

Sheriff Robert Weir QC heard that the pursuer, a 23-year-old psychology graduate, commenced her undergraduate degree course at the University of St Andrews in September 2012 and moved into a flat in St Mary Street with two female friends at the start of her second year 12 months later.

On Friday 13 September 2013, during the course of Freshers’ Week, the defender travelled north to the university town from his home in Bury to stay with a male student friend, who was also entering his second year.

The pursuer’s plans for that evening involved attending a male friend’s housewarming party, but before that she walked to another friend’s house, where she arrived at about 8pm and drank a can of cider.

At some point between 10pm and 10.30pm, the pursuer and two female friends made the short walk to the housewarming party. 

On the way, the pursuer was drinking from a second can of cider and during the party she drank a further two cans as well as an entire 75cl bottle of rose wine. 

She also consumed the equivalent of a bottle of champagne, three measures of vodka and a shot of a spirit like Tequila.

At some point between 11pm and 11.30pm the pursuer and her two female friends left the party, but as they did so the pursuer was visibly affected by drink and fell on the gravel path outside the house.

Meanwhile, the defender and his friend - along with two other male friends - made their own way to the Lizard Lounge nightclub in the town centre, arriving shortly before midnight.

The pursuer and her friends initially walked to the Students’ Union, where the pursuer had difficulty, at security, trying to find her student ID, and was seen carelessly to discard items from her purse in her attempt to do so.

The security staff asked one of the pursuer’s friends not to let the pursuer drink any more alcohol.

The trio remained in the union for between 15 and 20 minutes before making their way to the Lizard Lounge.

But by the time the effect of the alcohol she had consumed was causing the pursuer to “stumble around” and she required assistance because she was “unable to walk in a straight line”. 

At some point after her arrival at the nightclub, the pursuer was in the company of the defender in the smoking area, where they were seen “kissing and cuddling”.

The defender was subsequently ejected from the premises at about 2am after becoming involved in an altercation with some other patrons, at which point the pursuer joined him on the pavement outside.

The defender returned to the pursuer’s flat at St Mary Street with the pursuer who, having tried but failed to rouse her flatmates by using the external buzzer, dropped her keys.

The defender then picked up the keys, unlocked the external door and opened the door to the flat, where the rape took place.

‘Observably intoxicated’

The pursuer told the court that she had no recollection of leaving the nightclub, and that her next memory was of standing outside the door of her flat with a man whom she did not know, who spoke with an English - possible Mancunian - accent.

She remembered feeling “panicked” and him becoming angry and annoyed over the delay in accessing the property.

The next thing she called was coming round and finding that she was lying naked on her bed with the defender on top of her having sex with her, before forcing her to perform oral sex on him.

At the time of the sexual assault, which took place in the pursuer’s bedroom, the pursuer’s blood alcohol concentration would have been at least 250mg/100ml of blood.

She would have been “observably intoxicated”, but despite her attempts to push the defender away and despite the fact she was “upset and crying”, he continued until he became aware of the presence of blood, and thereafter “abruptly left the property” to return to his friend’s flat.

The court was told that during the next morning the pursuer attended a pharmacy to obtain a prescription for contraception and thereafter was involved in a sports fair, but she was “observably distressed, red-faced from crying, and, at times, unable to speak“.

In the afternoon of Saturday 14 September 2013, the defender attended the pursuer’s friend’s house to return the pursuer’s mobile phone, but he wanted to avoid contact with her, leaving it to his friend to hand over the phone to the pursuer.

On Friday 20 September a psychology lecturer noticed that the pursuer was not engaging with her tutorial group and took her aside to ask if there was anything wrong, at which point the pursuer alluded in general terms to something in the nature of an assault having occurred during Freshers’ Week.

Around six weeks later the pursuer decided to move out of her flat as she had been unable to sleep in her own bedroom since the incident.

It was in January 2014 that she reported the incident to the police and provided a statement which, in due course, led the prosecution of the defender.

After a High Court trial in late 2015 a jury returned a verdict of “not proven” on the statutory charge of sexual assault and rape which the defender had faced.

She then raised an action for damages for personal injury, claiming that she had been raped both vaginally and orally, with damages agreed at £80,000.

The defender admitted that sexual intercourse had taken place - although he denied oral penetration - but claimed that it was consensual.

‘Incapable of giving meaningful consent’

The sheriff found, however, that at the time the pursuer “lacked the ability to give meaningful consent to sexual intercourse” with the defender and that he could have had “no reasonable” belief that the pursuer consented to what he did.

In a written judgment, Sheriff Weir said: “In the early hours of Saturday 14 September 2013, accordingly, the defender took advantage of the pursuer when she was in an intoxicated state by reason of the amount of alcohol she had consumed, resulting in a lack of capacity to make free agreement, that he continued to do so even after she manifested distress and a measure of physical resistance, and that he raped her.”

The sheriff found the pursuer to be a credible and reliable witness, while he considered the defender’s apparent lack of recollection of many of the evidence of the night of 13/14 September 2013 to be “unconvincing”.

Sheriff Weir added: “Accordingly, I accepted as genuine the pursuer’s evidence that she was heavily intoxicated as a result of the amount she had had to drink on the night of 13 September 2013. 

“I also accepted that she had some memory of the events which took place both outside, and within, 15a St Mary Street after she had left the Lizard Lounge, and that those included becoming aware that the defender had begun to engage in sexual intercourse with her in her bedroom.

“Indeed, the pursuer’s description of becoming conscious of the defender already engaged in the act of sexual intercourse, her distress, her attempt to manoeuvre off her elbow, and to push him away prior to oral penetration of her mouth, was the very antithesis of the kind of willing, freely chosen, active, co-operative, participation which consent is supposed to connote.”