The Criminal Justice Process in the Time of Covid-19

In this blog, our Advocacy Workers and the survivors they support reflect on the barriers to pursuing justice through Scotland’s criminal justice system.

Advocacy Workers within Edinburgh Rape Crisis Centre stand alongside those who have reported sexual assault and rape to the police. We neither encourage nor discourage people to report and engage with the criminal justice process. We bear witness from beginning to end, over and over again. This gives us a unique insight into how the criminal justice system serves, and fails to serve, the needs of survivors*.

The process is long, difficult for many, and statistically unlikely to result in a conviction. There are barriers to pursuing justice through Scotland’s criminal justice system. Some challenges we come up against when supporting people, others we may never see directly because they are so effective at preventing people from ever reaching out, even to us. Covid-19 is one of those barriers, but many of the inadequacies of the system existed long before the pandemic.

Choosing to report a sexual assault or rape is an intimidating decision. From questions of doubt, to fear of discrimination, there are many reasons why reporting might not seem like an option for someone, even if they believe in the version of justice offered by our courts. Consider the sex worker who was raped while working, or the trans person who knows that reporting may mean they will face the violence of misgendering. They may have a precarious immigration status and fear deportation, or worry about the impact of reporting on children they share with the person who harmed them. Race, disability, gender, migration status, age – the inequalities that blight society show up starkly in our line of work.

We know that the number of people who have experienced sexual harm is far greater than those who report to the police. Sometimes that is because people seek alternative forms of justice to address the harm or to heal. But there are undoubtedly a significant number of people who don’t believe that reporting is for them, and for those people our justice system has failed from the very beginning.

Reporting itself can be deeply re-traumatising. Although some find empowerment in being able to voice what happened to them, the nature of questioning is intrusive and difficult. Most sexual offences statements are taken by a specially trained Sexual Offences Liaison Officer (SOLO), many of whom are gentle and caring; but there is no way to make recounting the intimate details of sexual assault or rape pleasant. And there are people whose feedback around the experience of giving their police statement is entirely negative, with some feeling like they aren’t listened to, aren’t treated with compassion or are blamed for their situation. This is unacceptable and we continue to demand that those reporting to the Police are provided a service that is trauma-informed at every stage.

The impact of the pandemic on the numbers of incidents of sexual violence is understood to be devastating, with increases in the isolation of vulnerable people and decreases in access to support. For those who reported just before or during the pandemic, already intolerably long waiting times were stretched even further, with some people we’ve supported waiting six years to have their day in court. The uncertainty of waiting for the conclusion of a police investigation that may not proceed to trial (most don’t), or for the courts to announce a trial date, weighs heavily and can impact negatively on the mental health and recovery of people who have experienced significant trauma. Reporting often means signing up to being confronted with the worst thing that happened to you, with no warning, at any point over a period of years with nothing promised in return. It is easy to see why many would not choose this for themselves. But that’s what the process asks of survivors.

“The day I am writing this marks 1,321 days since I reported my case to the Police. The delays mean that by the time I see a courtroom, I will be reciting a rape from 7 years’ ago. I am frightened that I will make mistakes when giving my evidence because it has taken so long. This has been ongoing for over a decade, as I was 19 when I got in a relationship with my ex-partner. I just turned 30. I am desperate for this to be over so I can rebuild my life again and finally find a way to heal from the trauma. It’s impossible to heal from the abuse when the court case is still ongoing.”

For those whose cases do go to trial, there are a further set of barriers and exclusions including poor or sporadic communication, limited accommodations made for people with physical and mental disabilities, and confusing waiting times. Again, while many of the people working for the Crown Office and Procurator Fiscal Service are dedicated and sensitive, the experiences of the people we support vary drastically. It is difficult to see this changing without an increase in resourcing. The pandemic has not helped – aside from delays, we have seen Covid-19 and the related policies of the COPFS deny survivors the chance to read their statements in advance of the day they give evidence, have court familiarisation visits or attend sentencing hearings with a supporter.

“I was on a Rape Crisis waiting list for specialised sexual assault counselling. I feel like I’ve been in fight mode and haven’t addressed much of the trauma surrounding the sexual assaults. When I finally got to the top of the waiting list I gave up my place to go back to the bottom, as this is something which would feel more valuable to me once the court case is over.”

Of all the crimes prosecuted in Scotland, rape constitutes the lowest conviction rate (47%). Each person who reports will seek something different, and may find something else entirely. Perhaps it was enough to report, to feel like they’ve handed over responsibility to the authorities. Perhaps the opportunity to speak their truth publicly in court was a moment of triumph regardless of the outcome. However, for many we support, the not guilty or not proven verdict is still deeply demoralising.

We are receiving a large number of referrals for survivors whose case is with the Procurator Fiscal and are now starting to see movement in their case after long Covid-related delays. Delays have meant that survivors need to be supported by the advocacy service for longer than usual, negatively impacting our capacity to take on new survivors.

“I have lost count of how many times this case has been delayed. I am so grateful to my Advocacy Worker but I am aware of the consistent workload Rape Crisis have and all the survivors that need support. If one person has their case delayed it’s not just them that is affected, it affects everybody waiting for support and justice. It’s important the courts support all of us to ensure more women don’t drop out due to time delays.”

With our current resourcing and the uncertain nature of trial dates, we sometimes struggle to provide court support for all survivors, with date clashes occurring more frequently than they used to. Advocacy Workers are finding that they are providing more in-court support in their average week. The long days, the uncertainty of waiting to be called to court, the exposure to explicit trauma content – put us at significant risk of vicarious trauma impacting on our wellbeing. We’re committed, as part of ERCC and a network of Rape Crisis advocacy workers, to taking the best care we can of ourselves and each other through this work, so we can continue to stand alongside the people we support.

“I just wish the delay didn’t have to affect so much of my life: I’ve been off work for over a year signed off with PTSD and severe eczema, I have hyper anxiety when going outside, my father had a heart attack and although he denies it I know a lot of the stress he had came from this case. My brother has been with his girlfriend for over 10 years’ and wants to propose but they are waiting till after the court case. These are all personal things but it proves just how many people get affected - families get affected.”

Throughout this journey, Advocacy Workers do our best to ensure that the people we support are fully informed about the process and have realistic expectations for what the outcomes might be. We are independent from the criminal justice system and our priority is the wellbeing and empowerment of survivors. We provide emotional support, answer questions, seek answers from the police or the courts, and are there with people, for police statements, for giving evidence, for finding out verdicts.

“Imagine if I had never reported. I might have been able to recover by now, or bury it, or just move on. Instead, they've made me so tired, I'd accept anything as an ending right now. I can feel it leaving my body, all the tension and the waiting. I'm so glad it's finally over.”

With enormous gratitude to Cara, Bethan and the other survivors who shared their experiences with us. You can find out more about Edinburgh Rape Crisis Centre's Advocacy Service and seek support here.

*We use the word ‘survivor’ to refer to the people we advocate alongside in this article. However, we recognise that not everyone who uses our service identifies with this word, and we will always use the language that feels most okay for the person we are supporting.

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For support

Rape Crisis Scotland's helpline 08088 01 03 02 (6pm - midnight every night) offers free and confidential support and information. They offer support to anyone aged 13 and over, of any gender, affected by any form of sexual violence, no matter when or how it happened. They support survivors, as well as family, friends, and supporters. They can arrange for free language interpreters, including British Sign Language, to access support if your first language is not English.