Men Are Not Getting a Fair Trial in Rape Cases

Across the world, feminist legal academics are bullying politicians and legislators into adopting new measures aimed at increasing rape convictions which inevitably undermine the right to a fair trial for accused men.  

Scotland judges were doing well in this macabre race to the bottom, but now they have suffered a setback. A UK Supreme Court has warned that Scottish courts are violating a defendant’s right to a fair trial. Scottish lawyers claim this could mean hundreds of men in prison will seek appeals or compensation for false imprisonment.

It isn’t so much the laws which have been at fault but the way Scottish judges are choosing to interpret them – namely by denying juries critical evidence that might have been used to exonerate the accused men.

They have taken rape shield laws, designed to protect the accuser from humiliating questions about their sexual history or character, and used these to exclude evidence critical to an understanding of what actually happened between the two people.

A leading Scottish barrister, Thomas Ross KC, has been outspoken about what is going on there. He’s in a unique position to expose this injustice because, after handling over 100 rape cases, in 2022 he threw in the towel because he felt it was no longer possible to properly defend accused men.

He’s now speaking out about the ludicrous situation where defence lawyers have to submit all evidence they propose to use in court for approval prior to the trial. This includes all the questions they plan to ask, which enables complainants to adjust their own evidence to get their stories right.

In one video, Ross mentions a conversation with a father whose 18 year-old son was facing a rape trial. “The dad was looking at me as if to say, ‘What kind of lawyer are you? This is my boy; he’s going to jail. He’s going in the sex offenders register. He is never going to get a job. I want this evidence laid out and you’re telling me you’re not going to be allowed to read it. That’s on you. This is your fault. If you’re the kind of lawyer that cannot get this evidence in, then you are clearly not up to it.’”  

“I just couldn’t do it anymore,” said Ross. Many other lawyers agree with Ross that the situation has become intolerable, which is why the Law Society of Scotland sought leave to intervene in the UK Supreme Court case arguing men aren’t getting the fair trials required by Article 6 of the European Convention of Human Rights. And now, the UK Supreme Court has agreed there is something very wrong in the way these trials have been conducted.

Unfortunately, and for other reasons, the UK judges still sent to prison the two men who were the subjects of the appeal. One of these involved Andrew Keir, who was sentenced to five years in prison for raping a drunk and sleeping woman at his home. But evidence withheld from the jury included CCTV footage showing an earlier drinking session at the pub where the woman, a work colleague of Keir, kissed him and beckoned him into a disabled toilet. When they emerged, the couple were thrown out of the pub as it was assumed they had been having sex. Yet the CCTV footage was cut by the prosecutors to exclude all evidence of this earlier sexual contact.

So here we have a justice system falsifying statements, doctoring CCTV footage and tampering with the evidence, rewriting the history of what happened that evening to suit the complainant’s story.

“It’s not justice. It’s shameful that it took five justices in London to tell our judges how to do their job,” says Ross.

The other case dealt with by the UK Supreme Court involved David Daly, a man found guilty of historic child abuse. Excluded from the evidence presented to the jury was the fact that the complainant told police that the rape led to her getting pregnant and having a child – a claim which was found to be untrue. The defence was not allowed to question her about this fake pregnancy because it was not deemed relevant to the rape case.

Early last year I wrote about Marc Catelli, a Sydney gelato salesman who was accused of sexual assault by a woman had had made similar accusations about two other men in the previous two years. He was facing a jury trial where the defence team was prohibited from mentioning these false allegations under NSW rape shield laws. Luckily Catelli’s case was dropped – but only because the complainant failed to show up for various hearings.

But, at least in Australia, rape shield requirements have not yet reached the absurdities exposed in Scotland. Although evidence or questions about a complainant’s sexual history or behaviour may be excluded, we don’t have the mandatory pre-approval processes seen in Scotland.

Or Canada. The crippling effects of Canadian pre-trial hearings is a regular topic on the excellent YouTube video series Not on Record, which features criminal lawyer Joseph Neuberger and legal researcher Diana Davison. Davison explains that Canadian defence lawyers are not allowed to talk about anything of a sexual nature unless it is approved in a pretrial motion, nor can they discuss consensual sex that proceeded or followed the alleged rape. The fact the complainant gets to see all the defence evidence and questions in advance means her evidence can be tailored and sanitised.

Neuberger recently won a recent case involving a 19 year-old student who was accused of sexual assault and violence against another student. In dismissing all charges, the judge noted that the girl had tailored her evidence after learning how the defence team planned to shoot down her claims. The judge apologised to the accused: “On behalf of the administration of justice for the Province of Ontario, I wish to apologise for the significant inconvenience and expense to which you have been subjected, as a result of these proceedings.”

Across the world, wrongfully accused men deserve similar apologies.

As one of Australia’s first sex therapists, Bettina Arndt started her career talking about sex on television and teaching doctors and other professionals about sexual counselling at a time when such topics were largely taboo. Her current, even more socially unacceptable passion is exposing Australia’s unfair treatment of men with the relentless weaponisation of laws and policies that see women only as victims. Her decades of advocacy of fair treatment of men in the Family Court included serving on key government inquiries. Bettina makes YouTube videos and blogs on Substack.