Sunday, April 19, 2009

Law & Order : Appeal Court judges criticised over drink driving verdict of sex attack victim

Three judges have been cricicised over their upholding of a conviction for drink driving of a woman trying to escape the scene of a sex attack.

The victim’s account of being forced into a gang rape situation is, reports the Scotsman “not in doubt”, but the original sheriff who ruled on her case and the three Court of Appeal judges, Lords Carloway, Emslie and Abernethy, argued she should not have driven off while under the influence. She should instead have used her mobile phone to call for help.

The Scotsman reports :

Judges in dock for verdict on victim of sex attack

Published Date: 19 April 2009
By David Leask

JUDGES were last night criticised for upholding the drink-driving conviction of a woman who used her car to flee the scene of a sex attack.

Victims' groups yesterday said the decision – by the Court of Appeal – was a huge blow to women trying to get a fair hearing from the justice system after suffering a sex attack.

The convicted drink-driver had argued she was "effectively" trying to escape from her attackers when she got behind the wheel while over the limit last year.

Her story – of being forced into non-consensual sexual activity with four men and then being indecently assaulted by one of them in her car – is not in doubt. But both the original sheriff in her case and the three judges sitting in the Court of Appeal, Lords Carloway, Emslie and Abernethy, argued that she should not have driven off while under the influence. She should instead have used her mobile phone to call for help, they said.

The woman was arrested near Falkirk in February 2008 after being found drunk behind the wheel in "a state of undress" and "a state of distress". She was convicted in July 2008 of drink driving by a sheriff who found her story "entirely credible and reliable".

The woman, who cannot be named for legal reasons, described how she found herself in a car in the parking lot of a social club in Falkirk with four men who, according to the court record, "made sexual advances towards her. She was sick. Said sexual activity was not consensual."

The record continued: "She was taken from the vehicle by one of the males and placed within her own car. Said male indecently assaulted her. She was sick. She was partially dressed and in a state of distress.

"The male left the car and returned to the social function." The woman, described by court insiders as "very intelligent", said she felt under threat and drove off. She was then stopped by the police, around two miles away from where the attack took place, and found to be just over the drink-driving limit.

Later, in court, advocate Andrew Brown, instructed by Falkirk firm Nelsons, argued a "defence of necessity" – a defence not normally recognised in Scots Law – saying that she had no choice but to drive away from danger.

The original sheriff, however, argued that the woman was not in immediate danger because her attackers had gone back into the social club and she could have used her phone to call for help.

He convicted her of driving under the influence but decided not to strip her of her licence given the circumstances. His decision was upheld by the Court of Appeal, which agreed that the woman should have taken "any reasonable alternative to offending behaviour"; in this case, phoning for help rather than driving off.

Their findings were yesterday criticised by experts in sex crimes, who said that few victims would have been able to think straight immediately after an attack as horrendous as the one suffered by the woman.

Mhairi McGowan, a prominent campaigner who runs the Assist programme for the victims of domestic violence in Glasgow, yesterday said she was "very disappointed" with the judgment.

She said: "It just doesn't take into account the reality of finding yourself in that situation.

"I think it's totally unreasonable to expect that after having been assaulted and in a state of undress you could be expected to stay in the very same place that you were assaulted and phone someone. Every instinct would be telling you to run, to get away as quickly as possible.

"Who's to say those men who assaulted you would not come back? They did after all go back to the social function.

"If the woman had phoned the police, how long would it have taken for them to arrive and when they did, would she have been believed?

"There were four of them and only one of her. The Sheriff and the Appeal Court have shown some understanding but, unfortunately, not enough."

The woman's MSP is Cathy Peattie, who also happens to chair the Scottish Parliament's cross-party group on male violence to woman and children. Peattie yesterday said: "This dreadful case emphasises that the Scottish criminal justice system remains unaware of many of the issues surrounding sexual violence against women."

Peattie was backed by Sandra White of the SNP, who said: "The perception really is now that sheriffs and judges don't take account of how a woman feels after she has been sexually assaulted, not just how she physically feels but her state of mind too. Sometimes I don't think the judges live in the real world."

In February an acting judge locked up an alleged rape victim overnight after she became too distraught to give evidence in his Edinburgh court.

Roger Craik was later told that his detention of Ann Robertson was "disproportionate" but will face no further action. Scotland has one of the lowest conviction rates for rape in Europe, just 2.9%.

'A harsh decision'

Psychologist Mairead Tagg writes:

This was a harsh decision. It appeared to take the view that the woman was immediately able to calm down and think clearly.

One of the main problems I have had in court is the real lack of understanding about people's behaviour when they have been traumatised. There needs to be a lot more knowledge and understanding about that. Otherwise we are going to see a lot more women being punished for being brutalised.

This is a case of a woman who was convicted of drink-driving after using her car to get away from the scene of an indecent assault. The courts have taken the view that, since she was not in immediate danger, she should have used her phone to call for help. But that is not how people react to a trauma. The conviction is harsh. This is why.

From a psychological perspective someone who has just been sexually assaulted will have a psychological reaction that is likely to result in all decisions being made in the emotional right side of the brain, rather than in the logical left cortex.

It is also fact that when people are traumatised the language centres of the brain close down. Her flight response was a far more likely outcome than calling a friend. Using the phone would be a logical thing to do, and she was not acting logically.

Mairead Tagg is a psychologist who works for Glasgow East Women's Aid, specialising in providing support to women and children who have suffered domestic and other abuse.

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