Few things are as frightening as the lack of due process. The idea that someone could be held responsible for an act they may not have done without any means of defending themselves brings up thoughts of the medieval Inquisition. One would think that as a society we would be past the point of denying someone a trial or any means of defending themselves. Yet a UK judge recently ruled that two men accused of rape are “rapists” despite neither men facing any charges or trial:
A former Scotland international footballer and his ex-teammate have been ruled to be rapists and ordered to pay £100,000 damages despite never facing a criminal trial.
Denise Clair, who was left “devastated” by a Crown decision not to prosecute, sued striker David Goodwillie.
She also sued Goodwillie’s then Dundee United colleague David Robertson.
She claimed they raped her at a flat in Armadale, in West Lothian, after a night out in Bathgate in January 2011.
It was the first civil rape case of its kind in Scotland.
The first question this raises is why the Crown chose not to prosecute. Rape cases are often difficult to prosecute due to lack of evidence or the accuser’s lack of credibility or the accused possessing an alibi. There are a number of other reasons that go into that decision. That the case was not prosecuted is not evidence of misconduct or disbelief. It may simply be a situation in there is no way to put on a winning case.
According to the article:
Ms Clair, who previously waived her right to anonymity, said she could not remember what happened after being in a Bathgate bar and woke up in a strange flat the following morning. […] The mother-of-one maintained she was incapable of giving free agreement to sex because of her alcohol consumption, but Goodwillie, 27, who now plays with Plymouth Argyle, and Robertson claimed that intercourse had been consensual.
Well, that explains why the Crown did not prosecute. Clair cannot recall what happened, not how she left the bar, not how she ended up at the flat, and not what occurred at the flat. Reasonably speaking, there is no evidence that she was raped. There is only evidence that she was so drunk that she cannot remember what she did.
The Crown made the correct decision. When you have a person claiming victimization who cannot recall the victimization and cannot provide any evidence of victimization, one ought not prosecute.
Yet a judge ignored this in the civil case, stating, “Having carefully examined and scrutinised the whole evidence in the case, I find the evidence of the pursuer (the woman) to be cogent, persuasive and compelling.”
How? By her own admission she does not recall what happened. How is that cogent, persuasive, and compelling? She cannot give you any information about the events unless she guesses or fabricates them. But according to the judge:
Lord Armstrong said: “In the result, therefore, I find that in the early hours of Sunday 2 January 2011, at the flat in Greig Crescent, Armadale, both defenders (the footballers) took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol and, because her cognitive functioning and decision-making processes were so impaired, was incapable of giving meaningful consent; and that they each raped her.”
Again, how did you reach this conclusion? She admits she cannot recall what happened. How do you know she was impaired? How can you determine at what point she became impaired? How do you know her cognitive functioning and decision-making processes were so compromised that she could not give meaningful consent?
And which just a weak and flippant reasoning, the judge found neither Goodwille or Robertson credible or reliable. He rejected their claims about the events, particularly their claim that Clair was no more drunk than anyone else they had been with.
Again, on what basis did the judge make this decision? There are three people involved, and based on what the news reports only two of them appear to remember what happened that night in any detail. How can any reasonable person conclude that the one who admits to possessing no memory of the events is the most credible witness, particularly this person sought £500,000 as compensation when the Crown decided not to prosecute?
Listen to the logic the judge used to justify the ruling:
Lord Armstrong said that prior to the incident the victim had enjoyed life, but her life changed following the decision not to proceed with a prosecution.
Lord Armstrong said: “She found that decision difficult to understand and had felt that she had not been believed.”
“She felt that her life had been destroyed by something which had happened although, because of her lack of memory, she was not fully aware of what it was that had caused that effect,” he said.
How is her life destroyed by something she cannot remember? In order to have something affect you, you must have some nascent recollection of it. If you cannot remember it at all, it is as if it never happened. The only thing that could affect her is her reaction to what she thinks or convinces herself happened.
It appears there is a small bit of evidence suggesting that Clair was heavily intoxicated:
However, a security firm employee working at the nightclub told the court that she had been in need of an ambulance.
Gayle McGregor said: “She wasn’t in control of herself. Her eyes were rolling in her head. She couldn’t stand up straight. She couldn’t speak to me properly. She wasn’t compos mentis.”
In the action it was said the players offered her a lift home in a taxi, but the driver was requested to drop all three at the flat in Armadale.
That is apparently the extent of the evidence from other witnesses. It is also rather curious that McGregor thought Clair needed an ambulance, yet allowed two men to take her away a taxi. If McGregor thought Clair needed medical attention, why not call the ambulance? Why allow two men to take her away? That implies that McGregor did not think the situation was that bad or that Clair could recover on her own.
The only evidence left is Clair’s claim that she would never have sex with two men at the same time:
In the civil case, Lord Armstrong judged the woman was so drunk she was ‘incapable of giving meaningful consent; and that they each raped her’.
‘She maintained emphatically that she would never voluntarily have had sexual intercourse with two men simultaneously, and that she had never ever done that before,’ he said.
The next morning she had found herself naked and in pain after the incident at a flat she didn’t recognise, with no memory of what happened, the court heard.
‘I seemed to be running about the house in a panic,’ she said. ‘I ran into every single room to see if I could make sense of my surroundings.’
‘I just felt sore. I felt sore inside as if something had happened to me, but I couldn’t say what it was. I felt a lot of pain inside.’
This is not evidence no rape happened, yet it is not evidence that any rape happened. It can just as easily be either of those situations, which is why the Crown did not prosecute.
In my opinion, this case sounds remarkably like so many false accusations in which the “victim” regrets having sex and later claims rape out embarrassment or shame. However, it could have happened. The problem again that there is no evidence pointing one way or the other. Even in a civil case, this case should be dismissed because it is equally possible that either of these scenarios is the true one.
It appears the judge ruled in Clair’s favor because he felt sorry for her. There does not appear to be anything substantiating her claim that she could not consent or was raped outside of McGregor’s testimony.
That is dangerous for several reasons. One, it sets a precedent for allowing women to o sue men for acts that would not result in prosecution. Two, it allows the civil courts to brand someone a rapist without a criminal trial or defense. Three, because of the lower standards of evidence in civil cases, it leaves the accused having to prove they did not commit the crime.
You could not ask for a clearer example of how to ignore due process than this.