What Should I Expect in Court as a Rape Survivor?
It’s been 3 years since I walked into a courtroom to give evidence in my rapist’s trial. We rarely get to see what happens in court and information about the process is often poorly advertised. So here’s a little overview of what it’s like and some answers to commonly asked questions.
First of all, as the victim, or in the language of the courts “complainer”, the case is not you versus your attacker but rather the Crown (who acts in the public interest) against your attacker. This means you don’t have your own lawyer. Instead a lawyer will represent the prosecution’s case. In Scotland they’re called the Advocate Depute (or AD for short). You will likely have very minimal contact with the AD, you can meet with them once beforehand, but do not expect much communication or direct interaction.
When it comes to giving your evidence, there’s something called “special measures” which you can request if you’re a victim of rape. These need to be approved by a judge, but include things like giving evidence via a video link or giving evidence from behind a screen. I chose to give evidence in court, as I was told juries prefer it, but from behind a screen so I wouldn’t have to see my abuser. If you feel that having to see your attacker will be too traumatic or affect your quality of evidence a screen is a good choice.
The screen dividing the witness box from the place where the accused sits.
You can arrange to get a visit of the court in advance and I would highly recommend doing this as it will help you know what to expect. Victim Support Scotland even has virtual tours of courtrooms on their website which are really useful.
On the day of the trial you’ll be given a witness room to wait in (and friends or family can join you in the room for support as long as they’re not witnesses too). These rooms are honestly pretty horrible and usually have no windows, entertainment, or phone signal. Be prepared! When it’s time to give your evidence someone called a macer will take you from the witness room down a private corridor and into the courtroom. And yes everyone will be wearing wigs and gowns! You’ll go into the witness box and you’ll then be asked to give an oath/affirmation. This is the whole “I swear by almighty God to tell the truth, the whole truth and nothing but the truth”. They read it aloud for you and you can just repeat after them. The oath is the religious version, and the affirmation is not religious. You can then either sit or stand to give your evidence, whatever you prefer.
The prosecution then asks questions, this is called “examination in chief” and then the defence asks questions or “cross-examination”. The question I always get asked is “can the defence ask anything” and the answer is no. There is a piece of legislation called Section 274 of the Criminal Procedure (Scotland) Act that prohibits the defence from asking questions about your sexual history or evidence which show you in a bad character (eg. drinking, mental health issues) etc. These questions can ONLY be asked if a special application is made (275 application) and a judge has to deem the questions relevant. Sometimes defence lawyers will ask things they’re not allowed to, and so the judge or the AD may intervene and there’ll be breaks in proceedings.
When you give evidence in a rape case the public are not allowed in. This is called “closed court” and the police will stand outside the door to make sure no one comes in. The only people allowed in will be the accused, lawyers, the judge, jury, security and police, and any court reporters. Now when it comes to media, they will not name you, photograph you, or disclose identifying details about you - and honestly in most cases reporting is very minimal. Most of the time, nothing is published until the trial is over (unless it’s a very high profile case).
After you’ve finished giving evidence, any other witnesses for the prosecution will be called. After that witnesses for the defence will be called, which can include your attacker if they decide to give evidence. It’s rare in rape cases to for the accused to do so, and they’re under no obligation to answer questions, but they can if they wish.
After all witnesses are called (and they can be questioned by both the prosecution and defence) then comes “closing speeches”. Both sides will sum up their arguments to the jury and ask them to either convict or acquit the accused. After closing speeches the judge gives instructions to the jury, they’ll deliberate, and then a verdict is returned. If they’re found guilty, usually sentencing will take place at a later date and they can either be released on bail or sent to prison (remanded) in the meantime.
You can choose to attend sentencing if you want to - it can be an empowering experience that gives closure - but remember there will be no special measures so you may have to see your attacker and their family. The choice is yours.
As a disclaimer, this information is based on the Scottish system and while there are similarities in different countries, the specifics may differ. The photos for this post were taken from my BBC documentary, ‘Convicting my Ex’ which you can watch on BBC iPlayer.
If you’re going through the justice process now, please know you’re not alone and there are people and resources who can support you. You’re brave and stronger than you know, and you will get through this.