Rape victims shouldn't have to pay for their own justice through the civil courts

The jury in a criminal case must believe the accused is guilty 'beyond reasonable doubt', meaning that a victim can be believed and yet a 'not guilty' verdict is still returned. This is part of the reason that many cases never reach trial: the police or CPS think the evidence may not fulfil the tough requirements of the criminal courts

David Goodwillie (pictured) and David Robertson have to pay £100,000 in damages after a civil court ruled they raped a woman in 2011 (Getty)

On Tuesday, a civil court in Edinburgh ruled that footballers David Goodwillie and David Robertson raped a woman in 2011 and ordered them to pay £100,000 in damages. This is striking because the Crown Prosecution Service (CPS) had decided there was insufficient evidence to prosecute and so neither of them faced criminal charges.

The case reiterates that the criminal justice system is rarely fit for purpose when it comes to rape. Whether it’s a judge blaming the victim, low conviction rates, or focus on a woman’s sexual history to undermine her credibility, the courts’ problematic responses are well-publicised. So are the Government’s attempts at improvement. Why, then, do so many victims remain traumatised and angered by their experiences of the criminal justice system?

It’s partly due to misunderstandings about rape that influence the public and legal professionals’ responses. But the criminal justice system is also set up to protect the accused’s right to a fair trial (this is a good thing; we all want to live without fear of being convicted for crimes we didn’t commit). The difficulty arises when the right to fair trial is misinterpreted as justifying forms of questioning that arguably impinge upon victims’ human rights.

Research also shows that the role of trial is to test the witnesses’ evidence as thoroughly as possible, and in rape this means the victim often endures difficult questioning. The jury must believe the accused is guilty “beyond reasonable doubt”, meaning that a victim can be believed and yet a “not guilty” verdict is still returned. This is part of the reason that many cases never reach trial: the police or CPS think the evidence may not fulfil the tough requirements of the criminal courts.

All of which leads us back to Goodwillie and Robertson. Does the case suggest that civil courts hold better potential for victim justice? Certainly they have the advantage of a lower standard of proof, the “balance of probabilities”, meaning victims are more likely to get a positive outcome. Victims repeatedly say that being believed is most important to them, so civil law could be useful in providing justice for rape survivors.

Civil law also provides reparation; another key ingredient of victim justice. Repairing the harm caused by crime is a cornerstone of restorative justice and although it isn’t possible to assign rape a financial value, the awards given by civil courts can help victims with the financial cost of their victimisation.

Most significantly, civil law lets the victim have their own lawyer. In criminal courts, a victim is simply the prosecution’s main witness and while the prosecutor may consider the victims’ interests, they are there to represent the CPS. By contrast, civil law gives the victim “party status”, allowing them to have legal representation in a way that mirrors the defence barristers’ relationship to the accused. Civil law therefore provides true opportunity for victims to have a voice and participate in justice proceedings.

Civil law is not a panacea, though. It’s been criticised as trivialising rape by returning it to a private issue between citizens rather than a societal problem for the State’s attention (although this assumes the criminal justice system doesn’t trivialise rape). Additionally, research notes that civil courts lack the restrictions on evidence about the victim’s sexual history present in the criminal courts, although sexual history remains commonly used in trials despite these restrictions.

Ultimately, civil courts can’t be the key to victim justice because they’re only available to those with the resources to bring a legal case and whose perpetrators can afford to pay reparations. For many victims, a reliance on the civil courts would therefore be unhelpful because their rapist couldn’t afford the damages or they themselves couldn’t afford a lawyer. While the Goodwillie and Robertson case highlights the potential for compensation to promote victim justice, relying on civil courts alone would therefore create a two-tiered system that perpetuates social inequality.

Is there another option? I argue that the Criminal Injuries Compensation Scheme (CICS) has a role in providing justice. The State-funded scheme has problems of narrow eligibility rules, for example awards can be reduced or rejected if the victim didn’t report to the police immediately. However, it can also provide the validation gained from civil courts without requiring victims to pay for lawyers or face the accused. With a revised approach to eligibility, it could therefore be central to victim justice.

In reality, the search for rape justice is going to involve the criminal justice system, civil courts, and the CICS combined. While we can debate the finer points of each approach, it seems that victims need a menu of justice options from which to choose. If the Government is serious about its victim-centred rhetoric then it’s important to widen our understanding of justice away from simply pursuing criminal convictions.

Dr Olivia Smith is a senior lecturer in Criminology at Anglia Ruskin University