Dominant forces throughout the West have been pressing hard for decades to remove any distinction between an accusation of rape and conviction for rape. That is what “believe women” means. That one does not have to search too hard to find plenty of cases of egregiously false allegations of rape (e.g., here, here and here) cuts no ice with those who are determined to convict every man who is accused.

In this noble cause the Scots stand out as especially zealous. You will recall the Scots attempted to do away with juries in rape trials – because those pesky juries had the nerve to find some men not guilty. The lawyers wouldn’t wear it though, and the scheme fell through. Not to be defeated, the Scottish appeal judges have struck a decisive blow for the cause.

Readers will be aware that whether the crime of rape has been committed hinges on the consent of the penetrated party. Of course this presupposes that penetration with the accused’s penis has occurred. But in many (most?) rape cases, that there has been sexual intercourse is not disputed. The trial is therefore all about consent, or its lack, and the accused’s reasonable belief regarding consent.

Of course, if the defence denies that intercourse (penetration) took place, then forensic evidence that in fact it did will cause the whole defence position to lack credibility. But that is not the situation I invite you to consider. Rather, let us assume that the defence concedes that penetration took place, but with consent.

The Scottish appeal judges’ ruling relates to corroboration. In the (very common) situation envisaged, the only issue is consent. What is needed for corroboration is therefore corroboration of the complainant’s claim that she did not consent (or corroboration of the defence claim that she did consent). Forensic evidence of penetration is irrelevant to that question – and, indeed, irrelevant entirely since the defence concedes intercourse took place.

Quoting the account given by STV News,

“(Defence advocate Gareth Jones KC) 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.”

That statement by Gareth Jones is indisputably correct.

And yet, in a written judgement, Lord Pentland, Scotland’s most senior judge, and his appeal judge colleagues concluded that Gareth Jones’s position was “unsound”. Their Lordships’ position was that penetration is sufficient to corroborate rape.

The “argument” presented by the appeal judges is so illogical as to almost make one doubt one’s own sanity. The gist of it as presented by STV News was,

“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.”

The Law Lords were asked to address each of four questions. The fourth question asked 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. 

Their answer was “yes”.

Gareth Jones, KC, stuck to his guns and said in response, “It (evidence of penetration) 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 shortly after the assault, or toxicology to provide corroboration to the allegation”. Yes, quite.

One wonders whether those Law Lords believe their own sophistry. It seems wilfully to ignore the obvious. Or were their words just an elaborate display to give spurious justification to an ideologically-driven belief: that she did not consent if she says so. Moreover, it’s only what she says now, not what she said, or implied, at the time which matters under this interpretation.

It is not just me that is bemused by the startling illogicality of the ruling. Roddy Dunlop KC, Dean of the Faculty of Advocates, has expressed the same concern. His account includes more details of the process followed, though that does not make the reasoning any better.

In reality we know that “innocent until proven guilty” was long ago reversed in sexual assault cases. The accused man must, in effect, prove his innocence – which means proving something about the state of mind of his accuser which the accuser herself denies. This is a preposterously anti-defence bias. But this ruling has made the defence’s job even harder because the complainant’s claim can now be taken as independently corroborated by (probably undisputed) evidence of penetration.

All sectors of society, including the criminal justice system and politics, are in denial about what the sexual assault laws have brought about: for a man it is not legally advisable to have sex. To do so leaves any man extremely vulnerable to an allegation against which it has become increasingly difficult to defend himself – and failure to do so means utter destruction of his life. That society has been blind to this stark fact is just another example of male disposability.