Press headlines in recent weeks have highlighted the low percentage rate of rape convictions in Scotland. where is Scotland going so wrong when it comes to trying sex crimes? MSP and advocate Rosanna Cunningham talks to The Firm’s Steven Raeburn as she campaigns to overhaul how rape cases are handled in Scottish courts.

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Rikki Tainsch probably never wanted infamy, but his name has become synonymous with one of the oldest problems that persists shamefully in the law of Scotland; that a woman is in some way responsible if she has been raped.

Tainsch was convicted in March for the sexual assault of a 15 year old girl. His lawyer, Iain Smith of Jameson and Mackay solicitors argued on his behalf that the victim had been “scantily clad”, and that she had been sexually active prior to the assault.

“I do not think it is fair to say this was a very vulnerable person,” he concluded. As a result, MSP Roseanna Cunningham, a former advocate and still a member of the Faculty, has lodged a Parliamentary motion ‘Clothing is not an invitation to rape’, urging the Scottish legal profession to take action to ensure that the use of such a defence or mitigation plea is no longer acceptable. The Firm magazine endorses the motion, and invites all individuals and organisations in the profession to take active steps to do everything possible on a personal practical and professional level to improve Scotland’s shameful conviction rate for crimes of this nature.

In 1977 in Scotland, 20% of reported rapes resulted in convictions. This is still an unpalatably low figure, but in 2005-2006, the most recent year for which figures are available, it plummeted to 3.9%, the lowest rate ever. And this is only those that are reported. A huge iceberg of unreported assaults is understood to exist below the official surface. Despite proclamations, initiatives or even the best will in the world, there is simply no avoiding the fact that prosecution and conviction of rape is regressing at an alarming rate, and it cannot be acceptable to anyone working within the profession or politically that this is a positive step. The legal profession is brimming with clever people, and a political structure that should be able to work this problem and produce a solution. Perhaps the difficulty is that the profession - locked into conventions where Lords and Ladies dispense justice- simply do not have the will nor the inclination to adopt the progressive attitude required to grapple with this issue.

And it is soluble. In 2003, the rape conviction rate in Latvia was 66%. In Hungary it was 54%. Poland 45%. The figures vary across Europe, with a noticeable spike downwards in the UK, where conviction rates in England and Wales were 8% at that time, and 6% in Scotland. In Ireland – a territory beset with entrenched attitudes culturally, socially and politically - it was a miserable 1%. What is Latvia doing right that we and Ireland are doing so very, very poorly?

Roseanna Cunningham has written to the Lord Advocate, the Law Society, the Solicitor General and the Justice Minister about the implications of the handling of the Tainsch case. Despite the visibility of highly publicised rape crime initiatives, including £500,000 additional funding for Rape Crisis that was coincidentally announced that week, Cunningham told The Firm that such visibility seems to count for very little in practice, resulting in a disconnect between intent and action.

“Nobody lives in a bubble. Lawyers read the newspapers, and it as if they read the comments from Lord Advocate, read that Rape Crisis have launched a large campaign, and it means absolutely nothing in reality when it comes right to the coal face. They make no connection with what they are doing and what is happening,” she said.

With her own background in criminal advocacy, she is aware that court procedures exist to minimise the risk of serious prejudice during a trial, but believes that a first step to improving conviction rates would be to modify the procedure that is employed during rape or sexual offence trials.

“The rules that exist about bringing up previous sexual behaviour exist in the context of evidence and the context of an ongoing trial. But those comments were made in mitigation [after conviction] and followed on from similar comments made by the Crown Office and the Fiscal. At that point they are free from any issues.”

Cunningham acknowledges that the mechanics of prosecuting such offences are only a tiny factor contributing to the low conviction rates. Fear of police handling, intimidation and anxiety about the court procedure and the difficulty in reliving the trauma are only a very few. There are entrenched socio-cultural prejudices and attitudes to overcome, which continue to resurface, and which continually halt the progress of the debate. The recurrence of the same old arguments prevents positive progress from being achieved.

“The problem goes back to debates that took place twenty or thirty years ago that seem old fashioned. What, actually, is rape about? Is it about sex? Most studies suggest it is about power and control. What you wear or don’t wear is almost an irrelevance. Sexual assault of any kind is still seen as a bloke getting his sexual urges out of control. But why is it still used by soldiers as a terror tactic?

“I was a lawyer. Sex crimes are more problematic because the actual acts constituting the crime are, in other contexts, legal between consenting adults. It creates a difficulty. It makes evidence and corroboration difficult to establish, but there are ways to achieve that end.”

Indeed. The judicial systems of Latvia and Hungary appear to have managed it. The continually plummeting conviction rate is sending out a dangerous signal, all the way from the top of the judicial establishment.

“The situation in Scotland is such that effectively men have a green light to sexually assault women. They are being told, ‘If you do it, you are going to get off’. In reality, the justice system does not treat this seriously, and men pick up on those signals. Unless rules are laid down, any lawyer –even the ones that can see the bigger picture- when it comes to their job, they are going to do what they perceive that job to be. That is the problem.”

The flexibility of Scots Law has been more of a hindrance than a help in nailing down a workable standard for securing rape convictions. Lacking statutory definition, the common law parameters for establishing rape have been perpetually moving goalposts through the 1990s and in modern times generally. Whilst the Glasgow Rape Case of 1982 was a private prosecution, the state is effectively in universal control of which reported crimes are taken to prosecution, and the definition of the crime itself has been as nebulous and uncertain as it could be for something that should theoretically be easy to describe and prosecute.

Until recently, rape was defined as “the carnal knowledge of a female by a male person obtained by overcoming her will,” therefore ensuring that evidence of force was required for a rape to be committed in law. Aside from the moral offensiveness of this, which perversely demanded that a woman in horrendous circumstances would in effect need to be beaten up as well as violated in order to meet the legal definition, this created a very difficult technical loophole to overcome. How does one prove something as abstract and intangible as the overcoming of will?

The later decisions of the High Court in McKearney v HM Advocate and Cinci v HM Advocate suggested it would be necessary for the Crown to produce corroborated evidence both of the actus reus and mens rea of the offence before securing a conviction, with the unavoidable conclusion that a prosecution would be difficult to obtain based solely on the testimony of the victim.

New provisions have since come into effect protecting vulnerable witnesses, and the Sexual Offences (Procedures and Evidence) (Scotland) Act 2002 restricted the admissibility of “sexual history” or “sexual character” evidence. Despite the efforts at progressing the law, the arguments used in mitigation in the Tainsch case demonstrate that very little progress has been made, if the default attitude among members of the profession is simply that it is to some degree the fault of the victim.

“It is hard to believe that in a modern Scotland there are people who still think that if a woman is dressed in a certain way or has been drinking it’s her own fault if she is raped,” said Justice Minister Kenny MacAskill, announcing the increased funding for Rape Crisis.

“A person doesn’t have to use physical force to make it rape. We need to make sure that is clear. That is why we are currently consulting on changes to the legal framework to make sure it is up to date and robust. However, the very fact that, as recent research shows, over a quarter of people think a woman bears some of the responsibility if she’s wearing revealing clothing means we need to bring public attitudes into the 21st century.”

Roseanna Cunningham argues that, in addition to tackling outmoded gender attitudes, practical adjustments could easily be made to the judicial process, noting that in the United States of America, a distinction was made between ‘stranger rape’, and rape where the attacker was known –and often trusted- by the victim prior to the commission of the crime. The distinction, she argues, could operate similarly to the distinction currently made between crimes of murder and culpable homicide.

“One state in the US did that, and increased the conviction rate. I was a lawyer before I did this job. In a practical sense what can you actually do? We need to start thinking about they way arguments are put across, which load blame onto the victim, and blame is not the victim’s. If we aren’t talking about introducing hard and fast rules about what you can and cannot say, which would be quite difficult to do, then it is about the getting the profession to understand that the way they use language makes a huge difference.

More simply, she says, the Scottish system should apply the lessons from other jurisdictions that are able to successfully prosecute the rapes that are reported. Nothing would be more convincing than results.

“What have Latvia and Hungary done? Do we know? Has anybody actually gone and had a look? What we need to do is go to the places that have made the difference, look carefully at what they do, and work out which model works best for our criminal justice system, bring it back here, and set about putting it in place.”

The Crown office was asked to contribute to our analysis of the prosecution of rape offences, but the Lord Advocate Elish Angiolini declined our request for an interview. Permission was also denied to speak to a named Procurator Fiscal. No reason was given for declining these interview requests.