Rape, Sexual Assault and the Law. Some Questions Answered.
When a woman has suffered a sexual assault it can be very difficult for her to decide whether or not she wants to report the incident to the police.
If you have been raped or sexually assaulted and have decided to report to the police, the prospect of facing the complexities of the legal system can be quite frightening.
The legal system is very complicated. We don’t know all of the answers to all of the questions, but we have listed some of the most common questions we are asked at Rape Crisis. We have tried to cover as much as we can from the moment you walk in the front door of the police station until the actual trial.
Q. I have decided to report the attack to the police. What should I do?
A. You should go to the police as soon as you can after the assault as it is important for them to gather evidence as soon as possible and preferably before you wash or change your clothing. If you do want to change your clothing, put the clothes you were wearing in a plastic bag and tie it tightly shut to preserve the evidence. Try not to drink anything either, especially alcohol.
If you live in Greater Glasgow you can either report the assault by telephone or in person, at your local police station or you can contact the Glasgow Archway which is a Sexual Assault Referral Centre staffed by women doctors, nurses, support workers and counsellors. You need to contact the Archway within 7 days of the assault.
Q. Can I just go to the Archway on my own?
A. If you decide to report directly to the Archway, you will need to contact them in advance to arrange an appointment. You can ring them on 0141 211 8175. They are available 24 hours a day, 365 days a year.
You will be seen in the first instance by a female doctor and nurse who will ask you some questions about your immediate health and also about the assault and then they will begin a forensic examination (if you are undecided about going to the police). This is so that forensic evidence can be gathered to corroborate the evidence given in your statement. This is why you should try not to wash yourself or throw away any of your clothing. Your first instinct may be to have a bath or shower and get rid of your clothing but this evidence may be essential.
You may want to bring someone along to support you at this time but as waiting room space is very limited at the Archway this should only be one person. Check with the doctor you speak to when you call and ask about bringing someone along.
In Scots Law, in order to prosecute, there must be corroborative evidence – which means two or more pieces of evidence that support each other. As there is usually only one witness in the case of a sexual assault – the woman herself – the forensic evidence may corroborate the fact that the assault took place and may assist in the identification of the perpetrator.
Your clothes may need to be kept for evidence and you can be provided with clothing by the Archway or you may ask for a relative or friend to bring clothing to you.
Nurses will also make arrangements for you to have testing for sexually transmitted infections carried out two weeks post assault and will give you information about accessing support or counselling.
Q. What if I just go straight to my local police station?
A. If you go directly to your local police station you will be asked to make a statement before you are taken to the Archway for your medical examination. If you live outside the Archway service area, you will be examined by a police surgeon at the nearest police station with facilities for this. Again you should try not to bathe or discard your clothing.
Your may be called back to the police station to continue giving your statement or for a further examination.
If you live outside the Archway service area you will have to make your own arrangements for sexually transmitted infections testing. You can contact Rape Crisis for support or for information on support services in your area.
Q. Can I take someone to the police station with me?
A. Yes, but there may be occasions when your support person may not be allowed access to a confidential interview. This will be dependant on individual circumstances.
They will be able to wait for you but in some police stations the waiting space is limited. If you are taking someone with you they should be aware that they may have to wait a considerable time.
Q. Is there anything else the police will want from me?
A. Apart from taking your statement and the medical examination, it is hard to specify what will actually happen at the police station. It really depends on the circumstances surrounding the attack. If you were attacked in your own home, you will probably be visited by the police who will look for further evidence. If you were attacked outside, you may be taken to the scene of the attack and asked to show the police exactly where it happened. They will search the area and may remove items which may be of evidential value.
You may be asked to return to the police station to look at photographs or to attend an identification parade. If this happens your anonymity will be safeguarded as far as possible. Although there are still parade rooms which operate a two way mirror system, the police have now introduced video identification parades which eliminate the need for a woman to see the accused in person.
Q. How long will all this take?
A. You can be in the police station for a number of hours, however every case is different so there is no set time for interviews. If the interview is going to take up a great deal of time you may be asked to return to the station.
You should be able to have a short statement taken before your forensic examination with a full statement taken at a later time (usually the following day). If you have been hurt or bruised, you can ask for this. Your follow-up statement can be taken in your home or at another place such as the Rape Crisis Centre. Each case will be different and there may be a reason why it would be more suitable for your statement to be taken at the police station.
Q. What will happen after I have given the police all the information that they need?
A. After the interviews and examination, and providing the perpetrator has been identified, the police then prepare a report for the Procurator Fiscal. The Procurator Fiscal is the public official responsible for the investigation and prosecution of crimes committed within her/his district. On the basis of such reports, the Procurator Fiscal may decide to initiate criminal proceedings, or may instruct the police to make further investigations. The Procurator Fiscal, whilst taking into account the interests of the victim of a crime, will also consider whether it is in the public interest to proceed.
A report will then be submitted to the Crown Office (the Procurator Fiscal’s headquarters in Edinburgh) where it will be decided if there are to be further criminal proceedings.
Q. What will happen if I am asked to go to the Procurator Fiscal’s office?
You are no longer required to give a 'precognition statement' to the Procrurator Fiscal. This was when you had to give a second and seperate account of what happened to the PF before the trial began.
The statement that you give to the police will form the basis of what the Crown Office presents at the trial, if the prosecuter decides they need more information or clarifiication they will conatct the police and they will in turn contact you.
You can have access to your original police statement before the trial begins, this can be read at the Procurator Fiscal's office, some cases can take up to a year to come to court so you may feel like you want to read your statement again, this is entirely up to you and you can speak to your VIA conatct about this. (see question below)
Q. What is VIA?
A. Victim Information and Advice (VIA) is part of the Crown Office and Procurator Fiscal Service. VIA staff are not prosecutors: their job is to provide information regarding the process of a specific case to victims and witnesses involved. They can also provide information about how the criminal justice system works and can arrange help and support at the time of the trial.
There can often be some time delay between reporting a rape or sexual assault to the police and being contacted by the Procurator Fiscal’s office. If the accused appears in court after arrest, VIA officers will keep you informed as to the progress of the case. There can be delays between the various times that the accused will appear in court or when the Crown will contact you for information. Although these delays are normal, it can be quite upsetting not knowing what is happening with your case. You are entitled to phone the Fiscal’s office or to contact VIA at any time to check what is happening. If you do not feel able to do this, you can get a friend or Rape Crisis to contact the Fiscal or VIA on your behalf.
Q. Will I be told whether there is to be a trial?
A. If the trial is going ahead you will receive notification that you must appear as a witness to give evidence for the prosecution. If the man pleads guilty you will not have to appear. When this happens you should be informed. If you want to know you should tell the Fiscal that you would like to be kept informed about all proceedings concerning the case.
In cases where it is decided that a prosecution will not take place, you will receive a letter from the Procurator Fiscal to that effect. The letter will advise you of the proposed decision. If you wish, a meeting can be arranged to enable you to discuss the matter more fully.
You may not be informed of the reasons why proceedings are not being taken. This information is confidential and the Procurator Fiscal may not be at liberty to disclose her/his reasons to you. If proceedings are not taken it does not necessarily mean that you have not been believed, but rather than there was not enough evidence to proceed.
Q. Will he get out on bail?
A. Unless the accused has broken bail, has previous offences or is considered likely to re-offend, he will be bailed under the European Convention on Human Rights. A person cannot be held in custody until proven guilty unless the above applies. This can be very upsetting, particularly if he lives near you. However, a condition of his bail will be that he does not interfere with witnesses so if he, in any way, bothers you, you should report this to the police immediately. Additionally, the court may impose a further special condition of bail that the accused does not approach, contact or attempt to contact you. If he does this should be reported to the police.
Q. Where will the case be heard?
A. Rape cases are always heard in the High Court. Other offences may be heard in the Sheriff Court or High Court.
Q. Do I need a lawyer?
A. No, you don’t need any legal representation whatsoever. You have done nothing wrong so you don’t need any defence. The Procurator Fiscal will be prosecuting on behalf of the Crown. You will be a witness for the prosecution.
Q. Does my address have to be made public?
A. If you do not want your address to be made known to the accused or his solicitor, you should ask the Procurator Fiscal to ensure that your address is given as care of the police office which has dealt with your case. If you have requested that your address be withheld, your name will be provided to the defence but your address will be care of the police office.
Q. Will I have to give more statements about the attack?
A. Yes. Although the Procurator Fiscal no longer requires you to give a further statement about the attack the defence lawyer will likely call you to give what is know as a Precognition Statement. This is when they go over the the details of the attack, it will be the same as what you told the police. They may ask you some quesitons for clarification. You can take someone along with you for support but they may not be allowed in to the room where you are giving your statement. The defence lawyer will send you out a letter asking you to come in at time that is connvenient for you, you must attend to give this statment but if you are concerned about anything please contact your VIA representative for advice.
Q. When will I go to court?
A. If the accused is remanded in custody the trial has to call in court within 140 days. If he is out on bail the trial has to call in court within a year. This doesn’t necessarily mean that the trial will be heard on that date. It may be adjourned until a later date.
Cases can be adjourned or delayed on numerous occasions for a variety of reasons. It may be that either the Crown or defence ask for more time, witnesses may be unavailable or because of the number of cases to be heard within that particular court sitting.
Q. What will happen if I am cited to give evidence?
A. A police officer will call at your address to give you a citation. This document gives details of the place and time when you should attend court. You will also be given an information leaflet giving you a brief explanation of what will happen.
It is also possible to arrange a pre-trial visit to the court which will allow you to visit a court room and ask any questions about proceedings which you may have. You can arrange this directly with VIA or Witness Services at the court or, alternatively, you can ask a support worker at Rape Crisis to organise a visit and accompany you there.
If the date or time you have to attend court is unsuitable for you, you should contact the Procurator Fiscal’s office immediately. It may be possible to make alternative arrangements.
On the day you have been told to attend court you should attend promptly and bring your citation with you. You will be directed to a waiting room where you will remain until you are required to give evidence.
Q. How long will I be at court?
A. It is impossible to say how long the case will take. You might have to wait for some time before giving your evidence, but you can take a friend or support worker along with you. You may arrive at court and be told you can go home.
This may happen for a number of reasons: the man may have changed his plea to guilty, or the trial may have been postponed. You should get an explanation right away if this happens but if you don’t, you should contact VIA or the Procurator Fiscal’s office to find out. This situation will hopefully be avoided as VIA should be able to inform you in advance.
It is also impossible to say how long you will be in the courtroom giving evidence as this varies from case to case.
Q. What will happen if I do have to give evidence?
A. You will be taken into the courtroom by the Macer and shown to the witness box where you should remain standing. If this is difficult for you, after you have taken the oath you may ask the judge for permission to sit down. It is at the judge’s discretion whether or not this is allowed.
When you are shown to the witness box the judge will ask you to take the oath. She/he will raise her/his right hand and ask you to do the same. She/he will then say the words of the oath and ask you to repeat them.
After you have taken the oath, you will be asked questions by the prosecution. The prosecutor will either be a member of the Procurator Fiscal’s staff or (in High Court cases) an Advocate.
You will be first asked your name, address, age and occupation. If you have asked for your address not to be disclosed it will be given as care of the police station who dealt with your statement.
Your responsibility as a witness is to answer all questions put to you truthfully and to the best of your recollection. Where you do not understand a particular question, you are entitled to ask for clarification.
You do not have the right to refuse to answer any questions with certain limited exceptions. However, the judge has discretion to allow or disallow questions. You may find that you are asked a question which is then objected to. If this happens, you will be asked to leave the courtroom and there will be a legal argument as to whether or not the question requires to be answered.
When you have finished giving your evidence you will either be asked to remain in court or be told by the judge that you are excused from further attendance. If you wish, you may sit in the public benches and view the rest of the proceedings.
Q. I’ve heard I can give my evidence from behind a screen. Is this true?
A. In some cases there are provisions for vulnerable witnesses. For instance, if the witness is under 16 years of age they are automatically regarded as a vulnerable witness and can access special measures such as a live television link or a screen.
However, you can only apply for special measures as a vulnerable witness if you can show that the quality of your evidence would be affected because you have a ‘mental disorder’ (which means having a mental illness, a personality disorder or learning difficulties), or because of fear or distress relating to the giving of your evidence.
The person who is citing you must make the application for special measures on your behalf (this will be the Crown) and if you feel that you would qualify for this you should discuss it with the Procurator Fiscal service.
The judge or sheriff will make the decision about whether to grant permission to allow a witness special measures and which measures would be most appropriate to that witness.
Q. What kind of questions will I be asked?
A. After the initial questions, you will be asked in detail about the attack itself. You will be questioned by the prosecutor, then by the man’s Advocate and possibly again by the prosecution if they wish to clarify any points. The only other person who can question you is the trial judge, who may do so at any time. The accused person cannot question you and will be represented by his defence throughout the trial.
When you are being questioned by the defence advocate you may find that he is standing beside, or very close to the accused so that his is in your line of vision when you are answering. This is an old defence ‘trick’ and is designed to unnerve you. You may want to fix your eyes on the face of the defence advocate or on his robes, or anything to keep the accused out of your line of sight.
Q. Can I be asked about my past sexual history?
A. The Sexual Offences (Procedures and Evidence) (Scotland) Act 2002 places limits on this type of questioning. In a trial relating to rape and certain other crimes of indecency, the court will not allow questions to be asked which are designed to show that the victim:
a) is not of good character (whether in relation to sexual matters or otherwise)
b) has at any time, engaged in sexual behaviour not forming part of the subject matter of the charge
c) has, at any time, (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge) engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer -
(i) is likely to have consented to those acts: or
(ii) is not a credible or reliable witness: or
d) has, at any time, been subject to any such conditions or predisposition as might found the inference referred to in sub-paragraph (c ) above
There are exceptions to the restrictions listed above but the defence must apply in writing to the court if they want to introduce any questioning about past sexual behaviour. It is difficult to say for definite what type of questions will or will not be allowed as these applications are decided on a case by case basis. However, when the judge is deciding whether or not to admit this type of evidence, she/he must consider both its relevance and the appropriate protection of your dignity and privacy.
Q. Who will be in court when I give my evidence?
A. In rape cases the public benches are cleared during the time the woman is giving her evidence. However, there can still be a number of people in the courtroom. These will be:
The Judge – Who oversees the trial and advises on points of law
Clerk of Court – Who records the court proceedings and ensures relevant paperwork is present for the case. In addition she/he is also responsible for receiving the verdict from the jury.
Witness – you
Support Person – Can be a worker from Rape Crisis Centre, Victim Support, Witness Service etc. Arrangements need to be made, and agreed, prior to the case going ahead in court.
Defence Advocate – QC (Queen’s Counsel) representing the accused.
Defence Solicitor – Accused’s lawyer
Advocate Depute and Assistant – Prosecute on behalf of the Crown
Macer – Escorts witnesses and jury to and from the court room. Also provides trial with productions e.g. photographs, clothing and weapons.
15 Members of the Jury – Members of the public who are randomly appointed by the Crown.
2 Police/Security Escorts – Escort the accused in and out of court.
Accused – Him
Press – Very occasionally the press will be present.
Court Recorder – Tape records the court proceedings and plays any video evidence.
Remember, although there are several people within the courtroom only 3 of these people will participate in the trial: the judge, the advocate depute, and the defence advocate. In rape cases the public benches are cleared during the women’s evidence at the judge’s discretion.
Q. Will the accused be in court when I give evidence?
A. Yes. He is present during the whole trial.
Q. I am worried that I might feel sick, feel faint, break down, need a glass of water or need to sit down.
A. If you need to ask for a glass of water or a seat, or if you feel unwell, you can ask the judge for permission to sit down or for a short break. The questioning may take some time and can be tiring – it is not uncommon for a woman to need a glass of water or a seat.
Q. How will I find out the result of the case if I leave?
A. You can find this out by phoning the Procurator Fiscal’s office or by contacting VIA.
The jury’s decision after hearing all the evidence and the judge’s direction can be ‘guilty’, ‘not guilty’ or ‘not proven’. The jury can reach its decision by majority vote (at least eight must vote for a guilty verdict) or unanimously.
A verdict of ‘not guilty’ or ‘not proven’ does not necessarily mean that you have not been believed, but rather than there was insufficient evidence for the jury to convict beyond reasonable doubt.
Q. Will the case be reported in the media?
A. Most cases dealt with by the courts are not reported in the national press or television. However, the media have wide powers of reporting and generally there are few restrictions on reports of proceedings other than those involved in persons under 16 years, either as a witness or accused.
By convention, the names of rape victims are not given in such reports.
Q. Can I claim criminal injuries compensation?
A. You can claim criminal injuries compensation if you have reported the attack to the police. The case does not have to have been proceeded with, nor is a conviction necessary.
You do need to apply as soon as possible after the assault, usually within two years, although there may be exceptions to this time limit, for instances in cases of child abuse.
If your case is going to court you may want to wait until after the court case before applying for criminal injuries compensation – the Criminal Injuries Compensation Authority often wait until the outcome of a trial is known before making any decisions on whether or not to avoid compensation. See the Rape Crisis Centre’s leaflet ‘Criminal Injuries Compensation – FAQs for Women’.