ACCORDING to the Collins English dictionary, the definition of “heroic” encompasses not only acts of bravery, but also the great effort and determination required to make them happen. All of these, but particularly the last two attributes, apply to Denise Clair.
Ms Clair refused to accept the Crown Office’s verdict that there was not enough evidence to prosecute two footballers accused of raping her at a house in West Lothian in 2011. Instead, she waved her right to anonymity and spent years contesting the case in the civil courts. Last week she was vindicated when a judge ruled that she had indeed been raped by David Goodwillie and his former Dundee United teammate David Robertson when they had sex with her while she was too drunk to give consent.
It’s hard to imagine the stress of the last six years for Ms Clair, a young mother, particularly as in common with many victims of sexual assault she was subjected to horrendous sexist and misogynistic abuse on social media. As well as receiving threats of violence, she was casually and cruelly accused of being a gold-digger, with such bullying clearly aimed at creating even more pain, suffering and humiliation for the victim.
We found out the extent of this pain in an interview with Ms Clair where she spoke movingly about the herculean level of determination required to see this case through and the family support that kept her going when few seemed to believe or accept that she had been raped. She also revealed that she had been offered considerable amounts of money by her attackers to settle out of court – more than she was awarded by the court in damages. This was clearly never about money, however; for Ms Clair it was about justice.
But should this case have wider ramifications for the Scottish legal system and society? That is what the Scottish Government must now decide following yesterday’s calls by politicians and legal figures for a public inquiry into why prosecutors failed to bring charges against Goodwillie and Robertson. Such cases are never straightforward, of course, and we must remember that the burden of proof required in civil cases is lower than in the criminal courts.
But when you read the evidence in this case, the statements from bouncers in the nightclub where the three met stating that Ms Clair was in a terrible state when they left together, the judge’s comments that the evidence given by Goodwillie and Robertson was not credible, it is hard to understand why no criminal charges were brought. Was it simply that a misjudgement was made in this individual case or is there something more institutional at work? That is what a public inquiry would ascertain, though undoubtedly it would cost millions of pounds to do so.
My own feeling is that a public inquiry is now needed so that both the justice system and wider society are given clarity once and for all under full judicial and media scrutiny, on the law around rape and how it should be handled by the justice system.
It’s now six years since the law on rape was defined and clarified as part of the Sexual Offences Act 2010, including the addition that if a person is “incapable” through alcohol or drugs, or is asleep or unconscious, they cannot give their consent to sex. But this message and its consequences have not sunk in with either the judiciary or the public.
If they had, then surely more than the current 12 per cent of reported rapes in Scotland would make it to a court room. And surely fewer young men would find themselves accused of rape after nights out on the town where both parties consume copious amounts of alcohol, because they would be actively making sure that they were not in this position in the first place. Fewer women, too, would judge and “slut-shame” each other if they knew what actually constituted rape. A better understanding of sexual consent would benefit us all, particularly in this overly-sexualised, often brutal digital world where the “norm” has been shifted by fantasy porn.
With this in mind if the Scottish Government decides not to hold a public inquiry into this case then perhaps it should consider putting the money this would have cost into a public education campaign, primarily aimed at young people, which explains the law around consent in the clearest possible terms. Perhaps some of the money could also train prosecutors to use this law properly so victims like Denise Clair are not forced to take on the system as well as those who raped them.
I have always believed healthier gender politics can only be possible when sexual relations are healthy and equal too. But until the society understands and accepts what rape is, I fear neither will be possible.
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