Family situation supported stepdaughter's rape account
A complainer's allegation that she was raped by her stepfather, who had fathered her child, has been held to have been corroborated by the very nature of the familial relationship and general domestic circumstances.
Lord Justice General Carloway, Lord Malcolm and Lord Turnbull in the Criminal Appeal Court gave the decision in refusing an appeal against conviction by LW, found guilty of the rape of his stepdaughter RM on various occasions between 1988 and 1992 when she was aged between 16 and 19 and he was aged between 28 and 31. He was also found guilty of incest but did not challenge that conviction.
RM had died before the trial. In her police statement she had said her mother and LW, who married when she was five, both physically abused her from an early age. LW's sexual abuse had begun when she was 13 and rape when she was 16. He had been established as the father of her child by DNA testing. At trial her mother claimed RM had artificially injected herself with LW's semen to become a surrogate in return for financial support. She had not made such a claim initially.
For LW it was argued that there was no corroboration of lack of consent. The evidence of domestic circumstances did not confirm or support RM's account, and it was not enough for it to be consistent with it. The use of general background circumstances could not assist in considering a specific allegation of sexual crime.
Lord Carloway, delivering the opinion of the court, said that whether the circumstances supported or confirmed a complainer's account inevitably depended on the particular facts and circumstances. The fact that a complainer was the accused's daughter or stepdaughter could be an important element in a circumstantial proof, and a significant difference in age might also play a part, in demonstrating the inherent unlikelihood of consent. However the mere fact that a relationship was incestuous, or that there was a significant age gap, could not in itself be corroboration.
In analysing the case it was not the likelihood of the offender's behaviour that was under scrutiny, but that of the complainer. The starting point was that incest was a cultural taboo. “In the complainer’s situation,” Lord Carloway continued, “not only had she been in a close family relationship with the appellant, which was in effect one of parent and child, she had also been in that relationship since childhood. There was a significant age gap between the appellant and the complainer, albeit not one that would cause concern in relationships involving adults. The complainer’s mother was in a continuing relationship with the appellant. It is the combination of these circumstances, which permits an inference to be drawn, that provides confirmation or support for the complainer’s account that sexual relations with her stepfather took place without her consent.”
The evidence relied on by the Crown had to be taken at its highest, and the jury must have accepted that analysis.