On 17 January 2017, Lord Armstrong handed down what has been described by some as a ‘landmark’ ruling in which he found that a woman had been raped by two professional football players, and awarded her £100,000 in damages as a result. This is the first case of its kind in Scotland, and provides a new avenue of hope for rape victims who feel that they have been let down by the criminal justice system.
The judge in DC v DG and DR [2017] CSOH 5 found that the Pursuer (DC) was raped by the two Defenders in the early hours of the morning on 2 January 2011, after she had been on a night out with a friend in Bathgate. Despite a full police investigation being conducted, criminal charges against DG were dropped due to “insufficient evidence”, and no charges were ever brought against DR. This ultimately led the Pursuer to raise civil proceedings in the Court of Session.
In his decision, Lord Armstrong stated that he found the evidence of the pursuer to be “cogent, persuasive and compelling”. DC was found to have been incapable of giving free agreement to sexual activity with either of the defenders due to the effects of alcohol impairing her cognitive-functioning and decision-making processes. Both defenders were found to have been aware that DC was incapable of giving meaningful consent to sexual intercourse, and neither was found to have a reasonable or honest belief that she had provided such consent.
Some have raised concerns over why DC was successful in the Court of Session, but was unable to secure a conviction in the criminal courts. The first point to note is that the standard of proof in civil proceedings, the balance of probabilities, is a lower standard than proof beyond reasonable doubt, which is the standard of proof required in criminal proceedings. This, combined with there being no requirement of corroboration in civil courts, results in it being more likely that a civil court will make a finding of rape than a criminal court.
Some think that Lord Armstrong’s decision will open the floodgates to more rape victims turning to the civil courts to seek justice, with others taking the polar opposite view, describing the decision as being an “exception” rather than the rule. The reality may well be somewhere in the middle. It will no doubt provide hope and encouragement to others but there are always going to be substantial evidential hurdles to overcome. It will not be an easy or quick process for any pursuer. The pursuer in this case was assisted by the fact that the police had carried out a detailed investigation and had preserved much of the evidence which was then made use of in the civil proceedings. It should also be borne in mind that, in this case, both defenders were professional footballers and, therefore, there were considered to be prospects of them having sufficient assets to meet any decree which was granted against them. Many other potential defenders may just be “men of straw”. In these cases, legal aid may not be made available to allow pursuers to seek recompense and few pursuers have the wherewithal to fund such a case privately.
It would be incorrect, however, to focus entirely on the monetary value awarded to the pursuer in this case. Rather, it should highlight that the finding of rape by a civil court may provide some form of justice to those that have been unable to secure a prosecution, let alone a conviction, through the criminal courts.