Civil action against footballers David Goodwillie and David Robertson is the first civil rape case of its kind in Scotland and has resulted in the footballers being ruled to be rapists despite never having faced a criminal trial.
I have followed with interest the case of Denise Clair, who raised a civil action against footballers David Goodwillie and David Robertson, seeking damages for rape following a night out in West Lothian in January 2011 and in particular the many comments made on social media following Lord Armstrong’s judgement, where he ordered the footballers to pay Ms Clair £100,000 in damages.
The case is the first civil rape case of its kind in Scotland and has resulted in the footballers being ruled to be rapists despite never having faced a criminal trial. The comments on social media range from suggesting that the footballers should now face criminal charges, that the footballers have been fined, and that Ms Clair would never have brought this case if it weren’t for the fact that her assailants were famous footballers, amongst many others.
The background to the case is that Ms Clair claimed that the footballers raped her at a flat in West Lothian after a night out. Lord Armstrong determined that neither defenders were credible or reliable in relation to the issue of whether they had a reasonable or honest belief that Ms Clair was consenting and found that Ms Clair had been incapable of giving her free agreement to sex because of alcohol and therefore the players raped her.
Many have asked why a judge in a civil case could make that decision when the Crown Office had already decided not to prosecute the footballers. The answer to that relates to the level of proof required in the different types of cases. As a lawyer dealing with civil cases, I know that in a criminal case, the test is proof beyond reasonable doubt whilst in a civil case, the test is that of the balance of probabilities. In other words, is it more likely that Ms Clair was unable to give consent and was therefore raped, than the opposite side, which is that she freely and willingly gave her consent? And in a civil case, there is no requirement for corroboration either unlike in the Scottish criminal courts. With criminal cases, as with civil cases, the Crown Office have to review all the evidence that they could present and consider whether that is sufficient evidence to prove their case beyond reasonable doubt. In this instance, the Crown did not feel they could. With a civil case, the same assessment is made as to whether or not there is sufficient evidence, but this time, it’s a question of balance of probabilities. On that basis, the level of evidence required is very different.
Then there are the comments about the £100,000 ‘fine’ which has been imposed. A fine is a punishment. The award of £100,000 to Ms Clair isn’t a fine to punish the footballers. It is intended to compensate Ms Clair for the impact the rape has had on her.
And would Ms Clair have pursued a case if her attackers hadn’t been footballers? In any claim for compensation, I not only advise clients on whether or not they can win the case, I also advise them on whether they will actually receive the compensation the court orders a defender to pay. Ultimately, a court order tells you what the defender has to pay – it doesn’t automatically follow that they will have the money to pay that, although in many cases, the defender will have insurance to pay the claim. It is unlikely that an individual would have insurance to pay out compensation in a case such as this. So the finances of the defenders do come into play, but that is no different to any other claim where consideration has to be given as to whether a defender can pay the court order.
Did Ms Clair have an alternative to raising a civil action? She could have made an application to the Criminal Injuries Compensation Authority a government funded scheme which pays compensation to victims of violent crimes. However, the CICA runs a tariff based scheme, rather than a scheme which considers the impact of the crime on the individual in question. Equally, the CICA as a government funded scheme, is it right to seek a payment from the CICA when the responsible parties have funds to pay an award of compensation?
Cases involving rape and sexual assault are always highly emotive, whether they are civil or criminal cases. Ultimately, Ms Clair has exercised her right to raise a civil action, a right which does not only arise if there is a successful criminal case.
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