Scottish woman wins £100,000 in civil action for sexual abuse

The Times reports today that a Scottish woman was awarded £100,000 by a Scottish court, in a case where she alleged that she had been sexually abused by two men in a hotel.

http://www.thetimes.co.uk/article/rapist-footballers-to-pay-victim-100-000-3snqwv9fd

The BBC also carries a report on the case.

http://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-38651041

This is described as the first case of its kind in Scotland. Her solicitor was Mr Cameron Fyfe, who is well known in Scotland for championing the rights of victims of sexual and physical abuse. She was also helped by Rape Crisis Scotland.

Civil claims for rape in England and Wales have quite a long history.

In Griffiths v Williams Unreported Court of Appeal 21st November 1995 a 32 year old female Claimant was raped by her landlord followed by harassment. The Court of Appeal confirmed a total award of £50,000 including aggravated damages.

In Lawson v Glaves-Smith [2006] EWHC 2865 (QB) a 34 year old female suffered multiple sexual assaults and false imprisonment at the hands of the deceased. She received £78,500 for general damages, and around a further £140,000 for loss of earnings and a business.

The case of A v Hoare [2008] UKHL 6 then made it a great deal easier for victims of sexual assault to sue their abusers direct, by giving the court the power to waive the limitation period under the Limitation Act 1980.  This made possible a whole raft claims made directly against abusers, which would have been impossible beforehand.

Scotland has a different a different limitation Act, namely the Prescription and Limitation (Scotland) Act 1973 as amended by the same Act in 1984. Scottish courts have the power to override limitation, but have proved less willing to do in child abuse cases.

There is now a Limitation (Childhood Abuse)(Scotland) Bill before the Scottish Parliament, which will remove the limitation barrier.

In the case just reported, the judge accepted that the "defendants 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 to giving meaningful consent...."

The pursuer (or Claimant as she would be known in England) also made use of section 14(2) of the Sexual Offences (Scotland) Act 2009. This says that "A person is incapable, while asleep or unconscious, of consenting to any conduct". 

England and Wales have their own version of that Act. Section 74 of the Sexual Offences Act 2003 states that a "person consents if he agrees by choice, and has the freedom and capacity to make that choice.". 

There are then evidential and conclusive presumptions about consent in Sections 75 and 76. One of the circumstances in which there will be no consent is where "the complainant was asleep or otherwise unconscious at the time of the relevant act."

Consequently, the two sets of laws are very similar.

The case also demonstrates the power of a civil court to give a judgment, even though there has been no criminal prosecution as happened in this case.