I first blogged about a civil rape case back in 2017 when Denise Clair successfully sued two footballers for rape, despite them not having been the subject of a criminal trial. A second civil rape case followed in 2018 when Miss M was awarded damages despite a not proven verdict in a criminal trial. In the latest case, Ms AB has been awarded over £100,000 in damages despite a not proven verdict in a criminal trial.
The background to AB’s case is that she had been on a night out with a friend and they had returned to her friend’s flat with Mr Diamond and his friend. Ms AB fell asleep fully clothed, only to wake to find herself being raped by Mr Diamond. She lost consciousness. He argued it was consensual. Sheriff KJ Campbell QC found that on the balance of probabilities, Mr Diamond had raped Ms AB.
As with the previous cases, I expect this decision will divide opinion. There will be those who will say that given the not proven verdict against Mr Diamond, he should not have been found liable to pay damages to Ms AB in the civil case. They may well liken it to seeking justice by the back door. A not proven verdict does after all have the same effect as a not guilty verdict.
To that, I would pose this question. If a driver seriously injured or even killed someone whilst driving but was found not guilty or not proven of careless or dangerous driving charges by a criminal court, should the seriously injured person or the grieving relatives of the deceased no longer be entitled to make a civil claim for damages?
I am sure most people will accept that in those circumstances it is still appropriate for there to be a civil claim for damages, which may or may not be successful of course. So why should a civil claim for rape be regarded any differently? The civil and criminal systems apply different standards of proof. The civil and criminal systems also apply different punishments. Under one system, the defender will be ordered to pay money (but may in fact never pay it, as happened in the case of Miss M). Under the other system, the defender may pay for their crimes with their liberty.
So I ask again. Why should a civil claim for rape be regarded as different to any other civil claim for damages where the defender has already been found not guilty or not proven by a criminal court? In my view, there should be no difference.
A civil claim for rape is not without its difficulties. The court might have ordered Mr Diamond (and Mr Coxen in the case of Miss M) to pay damages but the question then arises as to whether the defender will actually pay that order. After all, it is unlikely that defenders in a civil rape case will have insurance that covers the damages that require to be paid unlike in other civil cases. Mr Coxen declared himself bankrupt to avoid paying Miss M.
Rape and sexual assault survivors do have the right to make an application to the Criminal Injuries Compensation Authority, a government funded scheme which pays compensation to victims of violent crimes. Ultimately, no amount of money is going to make up for what survivors have gone through and nor does it make a public finding that the defender has committed rape. A civil rape claim might not result in survivors actually receiving money but it does at least make that public finding. That can help survivors with closure.
Ultimately, Ms AB exercised her right to raise a civil action, a right which does not only arise if there is a successful criminal case. She has done nothing wrong and has simply exercised her legal right.
Caroline Kelly is a Partner and Solicitor Advocate in our specialist Personal Injury team. For further information, please contact Caroline on 01382 346282 or email email@example.com. Alternatively, you can contact any member of the Personal Injury team on 0800 731 8434 or click here for more information.