Scottish judges issue landmark ruling that penetration is enough to corroborate rape

Appeal judges have concluded that the act of penetration alone is enough to corroborate the crime of rape.

Lord Pentland, Scotland’s most senior judge, and colleagues Lord Beckett and Lord Matthews made the ruling in a landmark opinion on Friday.

The Court of Criminal Appeal in Edinburgh had made the finding in a case which was brought to it by the Lord Advocate Ruth Charteris KC.

Her colleague, the Solicitor General Brian Gill KC had addressed the court earlier this year.

He had gone to the court after a question about the law had emerged following a trial which was heard before judge Lord Harrower at the High Court in Dundee in late 2024.

A man, who has been identified in legal papers as being called PK, lodged a special defence of consent in relation to sexual assault and rape charges.

During proceedings, Lord Harrower gave a series of legal directions to jurors about the law in sexual assault cases.

In his directions about some of the charges facing PK, Lord Harrower said that forensic scientific evidence led or agreed between defence lawyers could corroborate the evidence given by a complainer in the case.

This has prompted Crown lawyers to lodge four questions with the appeal court, which they want answered. They believed the questions could influence how sexual assault cases could be prosecuted in Scotland for years to come.

Defence advocate Gareth Jones KC told the court that answering yes to the questions could be problematic.

He said that forensic scientific evidence is able to show that sexual intercourse took place with a certain individual.

But it doesn’t show that sex had taken place without a complainer’s consent.

However, in a written judgement issued on Friday, Lord Pentland and his colleagues concluded that Mr Jones’s position was “unsound”.

The judges concluded that the legal requirement of corroboration could be met.

They also concluded that safeguards against wrongful conviction could be maintained because jurors would still have to consider the case as a whole and find the accused guilty beyond a reasonable doubt.

Lord Pentland wrote: “If it is proved as a fact that the accused penetrated the complainer with his penis, this fact provides corroborative support for the complainer’s evidence that the accused raped her.

“The evidence of penetration fits with her account of being raped. There are thus two sources of evidence which, when taken in combination, point towards the commission of the crime of rape.

“One source is the complainer’s direct evidence. The other is the circumstantial evidence that the accused penetrated her with his penis.

“The latter supports the former. There are two witnesses, the complainer and the witness who speaks to the evidence of penetration.

“The requirements for corroboration are thereby satisfied, and there is a sufficiency of evidence to prove the commission of the crime as a matter of law.

“Of course, it remains for the jury to decide whether they accept the direct evidence, and that relied on as corroboration, and determine that it does confirm, support or fit with the direct evidence.

“Even then, the ultimate protection for the accused is that before the jury convict, they must conclude beyond reasonable doubt that the accused committed the crime.”

Legal papers lodged in the reference tell of how the case was heard at the high court between October 22, 2024 and November 8, 2024.

The complainer gave evidence that the accused had penetrated her vagina with his penis without her consent. She also said that he also felt her body, tried to pull down her underwear and kiss her.

The accused was eventually given a ten-year sentence and lodged an appeal against his conviction, which he later abandoned.

Legal papers lodged in the case state the fist question as being: “Can forensic-scientific evidence of penetration of the complainer’s vagina by the accused’s penis corroborate the complainer’s account of rape?”

The second question asks whether evidence of the accused’s DNA on the complainer’s clothes or breasts corroborates the complainer’s account of sexual assault/assault with intent to rape.

The third question asks any piece of “direct or circumstantial evidence of penetration of the complainer’s vagina by the accused” corroborate the complainer’s evidence.

The final question asks whether “direct or circumstantial evidence” which previously could only corroborate one element of the crime against the accused now prove the entire case against them.

Earlier this year, Mr Gill told the judges: “I would ask your lordships to answer yes to each question.”

In response, Mr Jones said: “It provides identification and is able to show that the act has taken place.

“However, it doesn’t show that a crime has taken place, and the act has taken place without consent being given.

“You need other sources of evidence – like an injury or a statement made after shortly after the assault, or toxicology to provide corroboration to the allegation”

In the decision issued by the court on Friday, Lord Pentland and his questions answered yes to each of the questions put before the court by Mr Gill.

He added: “Each of the questions falls to be answered in the affirmative, with a qualification of the fourth answer to make clear that both the commission of the offence and the fact that the accused committed it must be proved by corroborated evidence.

“The modern law is, therefore, as follows.

“(1) Forensic-scientific evidence of penetration of the complainer’s vagina by the accused’s penis can corroborate the complainer’s account of rape.

“(2) Forensic-scientific evidence of the accused’s DNA on the complainer’s clothes or breasts can corroborate the complainer’s account of sexual assault/assault with intent to rape.

“(3) Any piece of circumstantial evidence of penetration of the complainer’s vagina by the accused can corroborate the complainer’s account of rape.

“(4) Both the commission of the offence and the fact that the accused committed it must be corroborated.”