Saturday 23 January 2021

Sturgeon has made it harder for other women to get rape convictions

When I first learned about the allegations against Alex Salmond, my immediate response was that the case was problematic. How was it possible to know beyond a reasonable doubt what happened when the alleged criminal behaviour happened a number of years ago in private?

When someone is accused of theft, physical assault or murder, there could only be a conviction if there was a confession or objective evidence that a crime had taken place. If I claimed that my house had been broken into five years ago, I would have to demonstrate that there really had been a break in, and I would have to prove that this person had committed the crime. Perhaps I would have CC TV evidence, or perhaps I could show that the criminal had possession of the goods stolen. But even then, the police might reasonably ask why I waited so long to tell them. So too with a murder. There would have to be objective evidence that someone had been killed and objective evidence this person had committed the crime. I would not be convicted of murder when there was no objective evidence that someone had been killed and merely a witness statement and nothing else stating that I was a murderer.

Sometimes sexual assault cases have similar objective evidence. Medical evidence may demonstrate a sexual assault just as much as a physical assault. If violence is used by the criminal and DNA evidence is present, then it might be quite clear beyond a reasonable doubt that a crime took place. But there are many instances when the crime that is supposed to have happened taken place happened some time ago so that there is no medical evidence and where it took place in private. In these instances, there is merely contradictory witness testimony. A woman may say she was raped. A man may say either that he wasn’t there at all or that the sex was consensual. How are we to prove beyond a reasonable doubt what happened?

In Mr Salmond’s case however, there were initially ten witnesses to the alleged crimes, later reduced to nine. The Conservative MP Charlie Elphicke was convicted in 2020 because two women accused him of sexual assault in 2007 and 2016. In each case the assault took place in private, but the jury believed the women rather than Mr Elphicke. He was sentenced to two years in prison. Harvey Weinstein similarly was convicted because of the accusations of two women relating to events in 2006 and 2013. Again, the events took place in private. The jury believed the women rather than Mr Weinstein. But if two witnesses were enough to convict Elphicke and Weinstein why were nine not enough to convict Mr Salmond?

The problem with this type of crime is that it comes down to who the jury believes. But a witness may be very convincing even when he is not telling the truth. Alternatively, a defendant may be poor in the witness box even when he is innocent. One defendant may have an excellent lawyer who succeeds in getting him off though he is guilty. Another may have an incompetent lawyer who the jury does not trust even though he is innocent. A trial becomes a matter of performance rather than truth.

We must assume that witnesses do not always tell the truth, otherwise why would we have trials at all? There is no reason to assume that men or women are more or less likely to tell lies. The likelihood of a miscarriage of justice must be high when a case depends merely on what he said versus what she said. If I were a juror in such a case, I simply do not see how I could know beyond a reasonable doubt whether Mr Elphicke groped a woman in 2007 or whether Mr Weinstein assaulted a woman in 2006.

But if large numbers of women independently come forward stating that someone sexually assaulted them, there would come a point when other things being equal it would be reasonable to believe them. Why would nine or ten women independently lie if the defendant had done nothing? Assuming that the women were reasonably convincing in giving evidence, and assuming the defence did not have an explanation for why so many witnesses would independently seek to convict the defendant, I would be inclined to convict. If I didn’t believe ten witnesses, then such trials would be pointless.

But the events since Mr Salmond was acquitted suggest that the jury was right to acquit him. We have discovered that the Scottish Government forced the case to go to trial against the wishes of the witnesses and contrary to the advice of the police to refer such cases to support services. We have discovered that the Scottish Government has paid for witnesses in the Salmond Inquiry to be coached and that these witnesses may have met each other to compare notes. It has become clear that Nicola Sturgeon and her husband Peter Murrell have been less than cooperative with the Inquiry and that there may have been a political conspiracy against Salmond. If I had known these things as a jury member, I would have acquitted Mr Salmond even if there had been one hundred witnesses against him.

Whether or not there was a conspiracy against Mr Salmond remains to be seen. But anyone following the case must conclude that there might have been. I don’t know exactly what the conspiracy might involve, because I don’t know what if anything happened in Bute House. Perhaps nothing happened and the charges against Mr Salmond were made up. Perhaps Mr Salmond sometimes behaved badly towards women, but not in a criminal way, but this behaviour was exaggerated. It may be that somehow there was an attempt to discover witnesses and they were encouraged or pressurised to testify against Mr Salmond. I simply don’t know, because I wasn’t there, and I don’t know any of the people involved.

But what I do know is that if I were ever to be a jury member in a sexual assault case in Scotland I would be less likely to convict now than I would have been if the Salmond case had never happened.

Let’s say in such a case in the future there were ten women who were intelligent and convincing in giving their evidence about sexual assaults that took place some years previously. Well why shouldn’t I believe them? But I would reflect that there might have been a conspiracy against the defendant. Perhaps the women all knew each other. Perhaps their employer wished to take revenge against the defendant. Perhaps this employer paid a consultant to advise the witnesses on their testimony and perhaps the women compared notes to make sure they had a consistent story. Perhaps the employer promised to reward them with promotion if the defendant was convicted. Previously such devious behaviour on the part of an employer would never have occurred to me. But now I have the example of the Scottish Government.

Whatever else we discover about Nicola Sturgeon, we already know that the actions of her Government have damaged the reputation of Scottish justice and have made it harder to convict men who commit sexual assaults. If the testimony of nine witnesses can reasonably be rejected because a jury might suspect a conspiracy, then the testimony of two witnesses could reasonably be rejected too.  There might have been a conspiracy against Mr Weinstein and Mr Elphicke especially if they had lived in Scotland.

If Nicola Sturgeon conspired against Alex Salmond, she will have put into the minds of all future potential juries in Scotland that women may be very convincing witnesses about sexual assault, but they may be lying or exaggerating. If that is the case, then Sturgeon will have damaged the chances of women gaining a conviction in sexual assault cases for the sake of political expediency and to get rid of a political rival. Whether Sturgeon did anything illegal, if that were the case it would be necessary to judge her as morally contemptible.