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Civil Damages in the case of Rape: A ‘Watershed for Survivors?’

The recent Goodwillie case (2017 CSOH 5) has been described as a ‘watershed for survivors’ by Rape Crisis Scotland. In the case, Denise Clair was successful in securing civil damages for rape against two Scottish footballers, David Goodwillie and David Robertson. This was the first successful action of this kind since the 1920s. One may assume that cases such as this are surely the domain of the criminal courts, however, in this instance, the criminal case was dropped by the Crown. As the standard of proof in criminal cases is ‘beyond reasonable doubt,’ and due to the need for corroboration, it is not uncommon for cases like this to be dropped prior to prosecution. This led Ms. Clair to seek justice in the Civil courts. In Civil cases, the standard of proof is on the ‘balance of probabilities,’ a lower standard that in the criminal courts. In his decision, Lord Armstrong concluded that, on the balance of probabilities, ‘both defenders took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol,’ as a result, she ‘was incapable of giving meaningful consent; and that they each raped her.’ Ms. Clair was awarded £100,000.

Rape Crisis Scotland have described this case as a ‘watershed for survivors,’ suggesting that it could be an ‘alternative route to justice’ for complainers of such violence. Despite this, survivors considering this option face an ‘uphill task’ to convince a judge to deem that a party is a sex offender when there no successful criminal case to rely on. In the same vein, after having experienced the trauma of rape, some may find that the experience of court, the examination and cross examination, and the potential intrusion of privacy something which compounds that trauma. On more of a practical point, raising court actions is expensive. If legal aid is unavailable, the pursuer may sustain a costly burden with no guarantee that the case will be successful. In the same way, if successful, there is no guarantee the party at fault will have the capital to pay the damages awarded. It goes without saying that not all defenders will have the salary of a professional footballer. In any case, is compensation is any form of justice in these circumstances? Or is money irrelevant? Is it more the case that survivors want to be heard and believed?

At present, we are yet to see another case for civil damages in the case of rape brought forward to the courts. In addition Mr. Goodwillie is due to appeal this decision on 14th November 2017. Hence, it may be premature to deem this case a ‘watershed for survivors.’ Nevertheless, what can be said is the outstanding bravery of Denise Clair for raising this action, and sparking the conversation regarding civil damages in the case of rape.

This blog post was written by Alice Bowman, LLB.

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