Rape corroborated with Moorov by sexual assault evidence

Evidence of a sexual assault on one complainer was sufficient to corroborate evidence of penetration on a charge of rape of another, although the jury deleted an allegation of intent to rape from the former charge, where there were sufficient similarities in time place and circumstances between the offences.

Lord Justice General Carloway, Lord Menzies and Lord Turnbull gave the ruling in refusing the appeal of Khalid Jamal against his conviction of rape of a woman, KL.

The charge was one of three of which the appellant was convicted, these being that (1) in December 2013 he sexually assaulted CQ by seizing her, pushing her onto a bed, restraining her, handling her breasts and kissing her on the neck; (2) between April and May 2016, he assaulted KL, pushed her on to a bed, restrained her, pulled down her clothing, forced her legs apart and raped her; (3) in September 2016 he sexually assaulted KL, prevented her from leaving a house pushed her on to a bed, restrained her, handled her breasts, pulled down her clothing and touched her on the body. In charges 1 and 3 the jury deleted an allegation that he did this with intent to rape.

The appellant had met each complainer through an internet dating website. CQ was 22 at the time and KL 17. The appellant had pretended to be in his 20s when he was in his early 40s.

On appeal it was argued that it was clear that the jury did not consider that the appellant had attempted to rape CQ, and the circumstances of the behaviour and the character of the offences were therefore different and could not provide mutual corroboration.

Giving the opinion of the court, Lord Carloway said that the acceptance that rape required proof that sexual intercourse had taken place without the complainer's consent had come to be understood as meaning that the two elements ought to be looked at separately. “This has led to an assumption that the act of penetration, when spoken to by a complainer, requires corroboration by scientific or medical evidence... In some situations, in which a complainer has given evidence of penetration, it has been held that only a conviction of attempted rape was available. This is both strange and anomalous.”

However what was regarded as the “serious element” of rape had changed over time from penile penetration to violation of a person's physical and sexual autonomy, and “There is no sound reason for restricting the availability of corroboration of the act of rape to the type of scientific, medical or other evidence set out above. In relation to penetration, corroboration can be found in facts and circumstances which 'support or confirm' the direct testimony of the commission of the completed crime by the complainer”, and a broad approach should be taken.

In a mutual corroboration case, “the confirmation or support in respect of both lack of consent and penetration comes from the existence of testimony from more than one witness speaking to different incidents which demonstrate an underlying unity of conduct”. There was no principle that what might be perceived as less serious criminal conduct could not provide corroboration of an apparently more serious crime involving penetration.

Considering whether there was evidence of a course of sexual criminal conduct, in addition to the above circumstances the appellant invited each complainer into his bedroom on a pretext, then pushed them on to his bed and sexually assaulted them. He told CQ he wanted sex with her. The jury were entitled to take the view that the different outcome in charges 1 and 3 could be attributed to the presence of others in the house, and in CQ's case to her greater maturity.

Click here to access the opinion.