Perhaps Scotland has such a low rate of conviction for rape because so many accusations are false and vindictive.
This is not something L Gray is willing to consider.

Perhaps the women's lawyers should retaliate by examining the defendants sex life and whether he was considered "adequate" or not. They should publicise the size of his penis and call into question the number of times he claims to have had sex in his life.

The burden is on the accuser to prove their case. And, it is the right of the defense to have access to any and all pertinent information that might cast doubt on that case. This is as it should be - whatever it takes.

#1 and #3 - WRONG. Your attitudes really epitomise the problem with these cases in Scotland. #3 in particular it is NOT the right of the defence to have access to the past history sexual or not of the victim of sexual assault and #1 your argument seems to hinge on the idea that only a tiny proportion of cases brought to court are actually real. This is very obviously not the case and the alleged 'false' accusations should not be used as a stick to beat those genuine victims of sexual assault who have a right to seek justice. Kenny MacAskill you need to do something about this NOW.

Just a couple of points here. Firstly, what has the previous sexual activity of the victim got to do with the price of bread? Even a prostitute can be raped, and her previous or current emplyment is irrelevant. Rape is, simply, sexual intercourse without consent. What the victim has, or has not done, by way of sexual activity prior to the rape should have no bearing on the case, and should not be allowed to be raised in court.

Secondly, and also for Conan's benefit, the Scottish legal system is about to be changed to ensure full disclosure to the defence. This has not been the case up till now.

I know that the lack of full disclosure is surprising, as most people thought it was the case. However, this, as well as information about the previous sexual activity of a victim, are but two of the many areas wherein the Scottish legal system has been falling down of late, if not descending into farce.

TY somerferg - I know you are doing your best. However, in fairness, full disclosure is the only way to go - regardless of your own personal views on this. TY for your comments on Mr. MacAssKILL who is under US law for the time being - so that isn't quite the same as the subject at hand, is it? TY for the enlightenment, Guga - most appreciated.

Conan I just hope your daughter son wife or mother are never raped ................... and you have to sit in court and watch as they are TORN APART on the stand ............... or indeed yourself for that matter

The problem is that the legal system is about the law - and victims would like to see it being about justice.

The way some of them dress it`s asking for it.Don`t tell me women should dress as they please there is common decency.Some go out with skirts more like pellmets and bits hanging out everywhere,what signal does that give out to young males charged up with bevvy?

UriahHeep # 1

It is because of attitudes like yours that scum who rape women get away with it. Only someone is totally inadequate, like you, would postulate such a pathetic hypothesis. Why would a woman make a spurious rape allegation knowing she was going to be faced with a very intimate medical examination and humiliation in a courtroom?
People who force that kind of humiliation on women in court are perverts and are seeking vicarious gratification. People like UriahHeep # 1.

It's worth remembering that the girl who committed suicide after the trial was forced to hold up underwear which had - very definitely - not been on display when she was raped. She was fairly soberly dressed as I understand it.

So where was the relevance of those questions, other than to suggest that women who wear certain types of underwear - even if not visible - must be 'asking for it' ?

Judges should quash any such questioning on the spot as non-germane.

#7 - Fifer - the purose of the courts is to establish the pertinent facts and dispense justice. If the victim's past is pertinent, then so be it. As far as my own situation is concerned, I am prepared to be subjected to that you describe. I seek no special treatment, nor should you, nor should anyone. If a man or a woman has been living in such a manner that their sexual history exists, and if that history is perttinent to the case, then of course it should be demonstated to the court.

As for false allegations, it happens. There have been several reported this year already.

Given the opprobrium of being accused of rape, never mind convicted, the identities of both accuser and accused should be withheld until the trial's conclusion. If innocent, anonymity of the accused should be preserved.

Equally, if the accuser has made a palpably false accustion, they should be tried, named and shamed.

Conan - courts do not dispense justice - they apply the law. Where the heck did you get the idea about justice from?

In an adversarial system this means that the lawyers will do anything to support their client's case - short of perjury.

While you, as a very self confident individual, might be able to stand up to spurious, disgusting and irrelevant questioning, a 16 year old lassie might not. Consequence - rapist gets off with it.

I'm with #13 anonymity until after the trial for both parties. I believe the public interest is best served by ensuring that the truth comes out, whether rapist or falsely accused.

#12.

Everyone has a sexual history even if it is that of a virgin.

I take it this comment means a history which could be described as lurid, promiscuous, or some similar term ?

At the same time, a sexual history of the kind suggested above, is irrelevant: the only question to be answered is "Was sex on the specified occasion genuinely consensual or not ?" If not, then it is rape. Nothing more, nothing less.

Agree wholeheartedly with #15. I'd go further however and allow for the sexual history of both the culprit and defence lawyer(s) to be taken to be revealed.
Justy.

(4) Somerferg - While I understand the emotional response you make, I disagree with your wish to have two kinds of laws, one for men and one for women. 1 & 3 are right. The principles of law are that the prosecution MUST prove its case, BEYOND REASONABLE DOUBT, and that the defense must raise doubts about the prosecution's case. While the prosecution will bring evidence about the conduct of the accused, the defnce should be allowed to lead evidence and cross examine the prosecution witnesses about their conduct and history.

(5) Guga - While rape is "sex without consent" as you put it, since in most cases there are no witnesses to the actual act, it is difficult to establish whether consent was given or not. It is often the case that consent for sex was either given, volunteered, or implied, and later, after the fact "withdrawn" (no pun intended) in the light of day (or upon sobering up). Therefore, it should be acceptable that previous conduct of the complainant be allowed in evidence to raise doubt about the claim that "rape" has taken place.

Besides, you are wrong regarding "Disclosure" rules. In Scottish Criminal law, the prosecution is obligated TO MAKE FULL DISCLOSURE of ALL the evidence it has, even if the prosecution does not intend to rely on that evidence. The law is very strict on this matter. Sadly, the Procurator Fiscal's office (and the Crown) often fail to make FULL DISCLOSURE, mostly in cases where the accused is representing him/her self (without an advocate or solicitor). In spite of the High Court ruling against this practice, the crown and procurator fiscal continue to "redact" evidence given to the accused. This conduct by the PF and Crown is indeed against the most basic and fundamental principles of law.

#17 Homo sapiens
You're wrong - the jury do not get to hear about the fact that the accsued has perhaps been done for rape another 3 times, or that he is a sexual predator or extremely violent. The very nature of the crime means that it is unlikely anyone else will have seen it. If the neanderthal attitudes of some of the posters above is allowed to prevail there will be a rapid decrease in the number of rapes in Scotland - NO-ONE WILL REPORT THEM ANY MORE. And while the prosecution is obliged to disclose information, there is no such obligation on the part of the defence - even if they have irrefutable information to prove their client did it. Well, it's not as if the defence lawyers care about real justice - only their day in court and the kudos they will get when they "get their client off". Be careful you don't confuse insufficient evidence with the allegation that the complainer is telling lies.

#9. That's exactly the kind of thing rapists say... She was asking for it. So then is it acceptable for a woman to be attacked because she is dressed in a certain way? I don't think so.

The issue is about whether, on a particular occasion, a woman consented to sexual intercourse. If she did not, it was rape. Unfortunately they waters do become somewhat muddied though when both parties are drunk, because there is so much room for misinterpretation and misunderstanding, as well as a tendency not to remember the facts of what happened.

Your statement suggests that because she chose to dress in a certain way, perhaps showing too much flesh than is deemed respectable, she deserves to be raped. Does that mean that on a beach in summer, where there is exposed flesh aplenty, we should expect high rates of sexual assault on our beaches because they are asking for it? I think not.

So-called "victim support groups" have had much too much their own way on this and related issues. Sorry if it sounds harsh, but a fair criminal trial is not, cannot, and never has been about 'supporting' the victim. Indeed that very idea is offensive to any notion of a fair trial - how do you know someone who claims to be a victim really is, until the evidence is heard? If the court starts with the notion that someone IS a victim, it may depending on the circumstances of the case, be placing the defendent at a very unfair disadvantage.

Of course victims should be assumed such outwith the court. But the idea of trying to nobble the process, to get more convictions for political reasons, is utterly contemptable. Those seriously proposing or even considering such a thing, need to be kept as far away from influence on these matters as possible.

If alleged victims are questioned on sexual matters in court, it's because an application has been made in advance, and the court agrees it is relevent - end of story. It's not for politicians to try and interfere in this.

Beware of sinister people who hide behind good causes!

Without being too flippant it seems as though we are almost heading towards the situation where both parties need to sign consent forms for each stage of the process.

Even then I suppose there would be scope for post-coital disagreements unless counter-signed by independent witnesses.

#20 Anthony
Oh!! So where is the evidence that these support groups have had things "all their own way"? Of course a trial isn't about "supporting" the victim (that's apparently what those groups you mentioned are for!) - it's meant to be about getting justice for everyone concerned - yes, even the accused! If he's guilty he should be getting more than the crappy sentences being dished out at the moment - a rape victim's life can be completely ruined while the criminal is often out in 4-6 years. And as I said, it's important that people don't confuse the fact that there is often not enough evidence to convict with the the premise that if he's found not guilty the complainer must be lying. I would also say that if the sexual history of the "victim" is presented, then the prosecution should be able to introduce AT THAT POINT, the criminal history of the accused. I don't approve of government targets for anything but it seems to me that everyone bends over backwards so as not offend or upset the poor accused without much thought to the victims.

Totally agree with #22. It seems a bit one sided if a tainted view of the defendant can be created by trawling through their past but the fact that the accused may be serial rapist cannot be raised.

there's no smoke without fire, a fair trial is more than some of these criminals deserve.

#13 Totally agree with you regards anonymity - there have been cases where individuals although cleared of any criminal offence have still had their lives ruined by false and malicious allegations.

I'd probably go further than this though - I'd like anonymity for both sides in any other types of case - for example those involving sexual assault, abuse or paedophilia. If the person is found guilty then that is the time for their anonymity to be removed.

JG(22), The evidence? As shown in this very article, there is non-stop briefing by so-called "victims groups" (some with the police really pulling the strings in the background incidentally). We have for the first time in our history, legislation titled 'victims rights', in respect of criminal trials.

I agree with you that because an accused is not convicted, does not mean the complainant is not telling the truth. But there's the flaw in your position. Why does it mean the complainant is not lying? Because the principle of innocent until proven guilty, central to any civilised system, then applies to any allegations of perjury or malicious complaint levelled against the woman (as the victim usually is) complainant on the same basis as it applied to the accused. If you are arguing for the innocent until proven guilty principle to apply to one side, but not the other, then you are basically arguing for gender based law. An interesting position.

It is fair not to disclose any previous criminal history. Why? Because the might of the state is levelled against the defendant. Every conceivable advantage is with the prosecution. If the prosecution cannot prove the crime based on the facts, then they should not have the option of trying to win by creating prejudice. It's different if the accused who does have such a record, tries to suggest to the jury that he doesn't. Then the crown are allowed to argue for disclosure in certain states of the USA for example - and I'd go along with that.

Any raising of 'the victim's' previous sexual history should be relevant and not gratuitious or intended to embarras the woman. But that is exactly what is being done in the current system. Unfortunately, there are occasions where the woman's sexual history is not just relevant to the case, but critical.

What is one supposed to ask then in a court of law if certain things cannot be asked such as sexual history and intoxication?

Solicitor 1: Were you raped by this man?
Lassie: Yes
Solicitor 2: Did you rape this woman?
Laddie: No.

What next? When it's one word against another with no witnesses, everything, no matter how brutal, has to be looked at.

I agree with the poster who opined that the rapist (99% men) should be cross-examined about their sexual past, the size of their penises, and whether they have also raped men and young boys.

What is good for the gander is good for the goose.

#26 Anthony
And God forbid that we should have any legislation giving rights to a victim, eh? With your theory, there would be no point in reporting any crime at all unless you have a cast iron case where there is no doubt the accused will be found guilty. If you do it's YOU who will be jailed - ho, hom more cash for the lawyers anyway, eh Anthony? One way of cutting the number of reported rapes I suppose (and consequently the low percentage of convictions in such cases). Read what I said again - "EVEN THE ACCUSED" was included in my comments. I'm not suggesting having a gender based legal system (and males are sexually asaulted too). I'M just looking for a wee bit of consideration for the victims. It is no more unfair to have an entirely innocent victim branded as some kind of slut in the witness box as it is for the person accused to have their criminal record disclosed in retaliation.

Oh, and as for the "briefing" allegations - lawyers endlessly "brief" their clients on what to do and say in the court - even as far sometimes as how to dress.

I suspect you've never been very close to a victim of sexual assault and watched the anguish of having to give your statement to the Police, being intimately examined and subsequently harrangued in court by some QC trying to make a name for themselves. Never mind the justice - as long as you put up a good show!!

#26 Anthony
In any case, they could tell the accused that if he elected to reveal the sxual history of the victim then his criminal record would revealed immediately thereafter. His choice!

The acccused is innocent until proven guilty. Everything you say JG is in denial of that basic fact. I'm not against consideration for the victim. But once in court, treating someone who says they are a victim as such, can be tantamount (depending on the circumstances of the case), to declaring the accused guilty.

All I'm saying, is we can't make these sorts of assumptions before the evidence is tested, at least not in the context of the actual criminal trial.

I've never experienced the things you refer to. It must be awful.

#31 Anthony
I'm well aware of the "innocent until proven guilty" basis of Scots Law. A person who gives evidence in court is a witness. That person is as entitled to respect and consideration as the accused (some may say even more so). What I actually said was that if the accused is leading evidence to sully the name of the witness (as details of her past sexual history undoubtedly is), then surely there should be no problem with details of HIS background being told immediately therafter, including his previous sexual history (which would include his previous convictions for such things). Quid pro quo, and all that. He would be aware that such a thing would happen before the witness was subjected to the legal harranging of the accused's defence lawyer. Don't want the convictions made known? Don't bring up the sexual history of the witness!

#30 you wrote:

#26 Anthony
In any case, they could tell the accused that if he elected to reveal the sxual history of the victim then his criminal record would revealed immediately thereafter. His choice!

I cannot agree with this. Why should it be the accused choice? If his criminal record is relevant to the case (and I would argue that having previously been accused of rape might well be very relevant - at least as relevant as a victim's sexual history!) then it should be revealed, regardless of wether the victim's history is considered relevant or not.

Likewise, if an accuser has a history of making rape allegations, I would argue that might well be relevant...

...so further to your point in post # 32, what I'm saying is that the decision to bring up a defendant's previous convictions (or not) should absolutely NOT be dependant on their bringing up the sexual history of the accuser!

#33 & #34 Anonym
As far as I'm aware, the jury aren't allowed to know about the previous record of the accused until after he has been found guilty of the case he's on trial for. He could have 34 previous convictions for rape and no-one is told about that. I agree with you that such information is relvant but telling isn't allowed. My point was (in the absense of changing the rules to simply disclose about him at the start!!) if the acused wants the witness' past brought out then he would have to accept his was going to be made common knowledge too.

The sexual history of the victim is not relevant...the facts surrounding the case are...I find this incredible. It is a tool used by the defence to weaken and break down the case for prosecution...I mean have you actually read this story?...a young girl had her underwear held up in court.....anyone having their underwear held up in court for fksake!...this intimates that they had the intention of having sexual intercourse with someone?...it would take an idiot to believe that....

Anyone can be raped....mother, father, daughter, son, nun or prostitute....and none of them deserve to be raped by the sicko men who carry out these vile acts.

There are plenty women who do not report rape for reasons such as the above...the humiliation of a trial and their 'sexual history' being read out in court...and who can blame them?

Whether you were promiscious...a prostitute..have several children by different fathers or a man who claims he was raped who just so happens to go jogging every night in the same park, known to be a gay hang out....it is irrelevant...stick to the facts of the case re the events of the time of the alleged attack.

#36 JG

Yes, I think the legal argument is that a defendant's previous offences (or history of being accused) must not be revealed because that would lead to prejudice and an unfair trial.

How that squares with the victim's sexual history being fair game is beyond me though, and I've no idea what the reasoning behind that is.

It might be relevant if the accuser has a history of making false accusations of rape. Does that count as sexual history?

Does a defendant currently have the option of making it know that he has no previous convictions, or has not been subject to previous accusations? If not, does this not put him at a disadvantage in favour of giving a 'fair trial' to somebody who has been subject to previous allegations or convictions?

I can see the logic in discounting the occurence of, or lack of, previous events, in the interests of avoiding prejudice, but I think we both broadly agree that in some cases (e.g. involving violence) these things should probably be considered.

I don't agree that the defendant's past should be brought up in exchange for the option of delving into an accuser's past though!

Otherwise, I think we generally agree with each other.

#38 Anonym
I don't think the offender's past can be brought up until the end of the trial - however good or bad he's been. I wasn't really offering up the witness as fair game in exchange for revealing the accused's previous record - it was meant as a sort of warning to him, if he throws mud at her she (or the prosecution on her behalf anyway) can throw some straight back!

Part of the problem here is, I think, rather well and succinctly put by poster #27 - Dave.

Unless this is a case of two strangers who have never met, with one undertaking an assault that is rape, then what are we to make of the allegation of rape.

With our social intercourse degenerated to the point it has, what may have applied decades ago and earlier simply won't work any more.

We are now in a society where almost anything goes, almost anywhere, almost anytime. Sexual signals and activity have become commonplace. Men and women now no longer feel it is necessarily the 'right' thing to do to avoid creating opportunities for rape, or what as an afterthought might be called rape, to occur.

Altogether too much time is spent pursuing hedonism, drunkeness, drug misuse, provocative behaviour, inapproriate interactions, unchaperoned contacts, disregard for what had been the normal standards of behaviour for decent people.

This, taken together, like it or not, agree or disagree, has in fact set forth the landscape wherein all manner of misbehaviour and wrongness can not be undertaken and construed by the participands and like-minded observers as 'the new norm'.

This cannot and will not work and cannot and will not supprt the notion that the past behaviour of the complainant and the accused is of not relevence. It is highly relevent and it MUST be allowed into evidence if the court is to render a judgement on what amounts to 'his word versus hers'.

For example, if the 'victim' is some chaste (not chased) virgin, for example and the accused is the likes of some renowned player of the field (just as an example) - then it would be clear. On the weight of the evidence and past actions of each the balance of guild would reasonably be tilted against the playboy - if there was material evidence to show that 'something' had occured.

If, on the other hand, damned near every male in the county was fairly familiar with the 'victim's' g

Load of crap.....you could send down an innocent man or let a rapist walk.....all because you would judge a book by its cover and not the evidence relating to a particular accusation.

So Conan...imagine yourself sitting in your penthouse suite..kacking your drawers because an ex girlfriend you rejected (known to be all sweetness and light) has made an allegation of rape and you were seen filling her with bevvy on the night in question, hoping for one final leg-over...she however (after said leg-over) sobers up in your suite to create a scene and vow that you will 'rue the day'...a row ensues...punches are thrown..glasses are broken and bruises abound..

Conan...you are going down......well according to you that is..

Prostitutes are raped regularly...but I suppose you are aware of that...being a man of the world obviously...by your logic...it is reasonable to conclude that they are lying...and incidentally I worked with a lot of prostitutes that did not report the rape as they knew it was pointless...they were not looking for any outcome an saw it as an occupational hazard...and we are talking violent, vicious assaults, not just sexual intercourse.

Your pious preaching re the morals of todays society just dont cut it either pal...men have been raping women since time immemorial....and will continue to do so...regardless of their mode of dress, size of their drawers or how much make-up they are wearing....

You cannot judge the present on the past...just because I (for example) assaulted several people in my turbulent youth it does not mean that I am guilty of todays murder...I am not a rapist because I am not monogamous and play the field...I am not a liar because I am an escort, a prostitute or promiscuous....this logic is fundamentally flawed in that it is creating likelihoods and valuing them over facts...this is not justice.

The entire problem would be solved if we all refrained from sex, and acted like a shower of the legal profession.

#41 - well, as you say in your own way, we disagree on this and insulting me insn't going to change that of make you more the right. I'll take under advisement your expertise on the subject of prostitution. There's not much point in going point-by-point with you as you made your frame of mind clear in your opening remark. Cheers!

Conan - Have you been on the bevvy tonight? Your last rant is utter rubbish and a dangerous view that would allow wicked men and women to go free. You are judging people solely by reputation and not the facts. Your sort would think it fair game to force a women to your will because she's 'fair game' 'y'know the sort m'lud'

You've let yourself down tonight

43 comments, all very interesting, the way I see it, it is just more abuse of women, not the comments 'of-course', but the court rooms!
So much for equal opportunity!

Well correction, maybe some comments are inappropriate.

Not yours ~44

43....Conan...I seem to recall correctly you have slung 'em out with the best of them...or is there another Conan who is doing the rounds here?...are you being trolled perhaps?...

I do not recall you standing down either due to being 'insulted' by someone...this is new...

Why should 'the victims' sexual history be fair game but not the accused's? Because it is the complainant who is making the allegation! It is for the party making the allegation to prove guilt. It is not for the accused to prove innocence. Do away with that, and we take the law back to before the signing of the Magna Carta.

#49 Anthony
Ah, wait a minute - it was you who said something about not portraying the "victim" as being a "victim", otherwise the sympathy would be with them and not be unbiased. It was after that that I changed the description to the "witness". Nobody is saying that the accused should have to prove his innocence but if he wants to start slinging mud at a witness then he should have to risk some coming right back in his direction. Either the jury hear about the incident being tried and ONLY that incident or they get to hear the whole lot - warts and all.

And why should the victim have to prove that they are 'innocent' of any past sexual conduct that may be construed as their being guilty of being lascivious, wanton and promiscious?and therefore not capable of being raped...cos thats what its all about folks..