Can tears be proof of attack?

The Times, 30th June 2023.

In 1997, five judges handed down their judgment in Smith v Lees (Andrew Tickell writes). The context was a camping trip. Two adults accompanied a group of children.

One of the adults entered a tent and, said the Crown, sexually assaulted a girl inside. A second adult saw the girl emerging from the tent shortly afterwards, visibly distressed.

The girl reported the matter to the police. At trial, the suspect was convicted of sexual assault but appealed on the basis that there was insufficient corroboration.

The fundamental legal question at stake was: what does evidence of the victim’s distress after an alleged assault prove?

Can we use the tears to help prove she was assaulted, or do we need something more? Smith v Lees settled this question for almost 25 years.

In Scots law, you can’t be convicted on the evidence of a single witness. In criminal cases, the Crown must produce two independent pieces of evidence for each of the essential facts of a criminal case – that the crime was committed and that it was the accused who committed it.

Corroboration is any evidence that strengthens, confirms or supports a witness’s direct evidence about what happened. Because most sexual crime takes place behind closed doors, finding corroboration can be challenging.

When interviewed by the police, some suspects admit they had sex with the victim but claim it was consensual. In other cases, this evidence comes from forensic techniques. But in many cases, there is no corroboration – and these allegations cannot be prosecuted.

In 1997, the court quashed Smith’s conviction and set out a broader principle. Evidence of a victim’s distress could corroborate that something bad had happened but could not help prove it was a sexual assault.

Evidence of distress can corroborate a victim’s claim that they didn’t consent to sexual contact, but not that they were sexually assaulted. This distinction may strike you as artificial. The lord advocate thinks so. Yesterday, Dorothy Bain KC invited a full bench at the Appeal Court to overrule Smith v Lees.

She argues that independent evidence of a complainer’s distress should be sufficient to prove not only that something bad happened to them without their consent but that this was a sexual assault. Bain points to 19th-century texts and to international experience of applying corroboration rules.

If the lord advocate persuades the bench to overrule Smith v Lees, expect the decision to affect thousands of other cases in Scotland.

Hundreds of rape cases currently abandoned on corroboration grounds could be prosecuted.