Covid-19 has significantly disrupted the operation of the criminal justice system in Scotland and elsewhere, causing considerable strain to the system, as well as uncertainty for those who are caught up in it as victims and alleged offenders, according to a report by The Scottish Centre for Crime and Justice Research.

However, delays in rape and sexual abuse cases are not new and waiting times have been unacceptably lengthy for some time. Long before lockdown and the disruption this caused to the criminal justice processes, the challenges faced by victim and survivors as a result of delays were well-established.

“In the Justice Journeys research, victim-survivors whose cases took between two and three years to reach any kind of outcome described themselves as ‘living in limbo, with ‘no road map’ for how to continue in the criminal justice process or in their life more generally, especially in situations marred with a lack of communication over what is happening and why,” said the report.

Sexual offences have profound and distinct impacts upon those who experience them and they pose particular challenges for the criminal justice response. For those who have endured rape or sexual assault, victims’ experiences of the criminal justice system, concerns are particularly acute. These crimes ‘fundamentally challenge a victim’s sense of dignity and autonomy’, the report says. Rape and sexual assault are acts that remove power, control and dignity from victim-survivors with many survivors describe feeling frightened and humiliated.

Victims and survivors’ sense of loss of control was often replicated within the processing of their case, not least because of the lengthy duration of the process, the requirements for sharing intimate personal details and their inability to influence what happened and when. Hence the impacts of sexual offences on victim-survivors and seeking justice interact and are cumulative across what can be a very protracted process. Survivors are often re-traumatised as a result of the whole process.

Violation

Delays in the process were attributed to delays in their case progression, poor communication, the uncertainties about trial dates and last minute changes to court locations – all of which were well-established before COVID.

The impact on victims and survivors was devastating and after enduring a complete violation, they were then forced to live with their life on pause, dealing with the burden of hope, feeling out of control and at the mercy of the process, which, taken together had profound impacts on all aspects of their lives and contributed to their lack of confidence in the criminal justice process.

Some victims and survivors referred to in the research described the delays experienced while awaiting trial as ‘being continuously let down’. They also discussed the impact that the lengthy criminal justice process, coupled with waiting for news of court dates had on their ability to function at school, college, work, or as a parent. Others noted how their ability to move on from what happened and plan for the future was negatively impacted.

But the research, which was published in July 2020 three months after the first lockdown in March 2020 highlighted that stopping jury trials for the three lockdown months resulted in lengthy delays before trials could take place. Undoubtedly, with victims and survivors facing delays of up to four years before their case is heard in court, these anxieties will inevitably be exacerbated and the stress of waiting likely to increase to breaking point.

Backlog

There were 717 High Court cases as of 10th June 2020 that have been indicted and were awaiting trial, of which 465 involve serious sexual offences.

In contrast to other types of crime recorded by the police in Scotland, the numbers of sexual crimes have been steadily increasing since the mid 1970s. Sexual offences are considered ‘core’ business for Scotland’s prosecution service, constituting around 75 percent of overall Crown Office and Procurator Fiscal High Court workload.

Yet at that stage, where courts were unable to process cases at their normal capacity but with more cases entering the system, the backlog of sexual offence cases continued to increase.

“There is little doubt that the impact on survivors’ personal circumstances and mental health will be immense. Perhaps most importantly, long delays threaten survivors’ wellbeing by preventing them from moving into a therapeutic recovery phase (Gillen, 2019; Herman, 2003) thereby postponing their psychological recovery indefinitely while also requiring them to retain the detail of distressing events in preparation for going to court and give evidence,” said the research.

Harassment and intimidation

A range of adverse consequences can be caused by length delays, impacting on the personal, domestic and professional lives of victim-survivors including:

• Difficulties working or studying
• Problems in maintaining close relationships (let alone establishing new ones)
• Developing mental and physical health problems, including anxiety, night terrors, confusion, suicidal thoughts, depression, and trauma.
• In cases where defendants remain within the family or community, safety concerns will likely be paramount, particularly given that sexual offences frequently occur within families or intimate relationships.
• The perpetrator accused may harass and intimidate them despite the imposition of bail conditions.
• Lengthy delays may potentially jeopardise community safety.

“Ensuring the long-term safety of victim-survivors, their families and potentially other witnesses in each case over the course of long delays will require close consideration,” said the report.

The report also highlighted the impact of alleged abuse on the children of the victim/survivor given their age and the proportion of their lives spent with a parent involved in criminal proceedings, and who may be called to give evidence in court.

Whilst victims and survivors often tried hard to protect their children, especially younger children, from knowledge about their cases, they nonetheless felt that their children came to know, and their abilities to effectively parent whilst navigating lengthy delays in the criminal justice process were compromised, said the research.

Disincentive

Furthermore, lengthy delays have clear implications for the administration of justice. There is ample evidence that long delays have an impact on trust and confidence in the operation of the current criminal justice system. Fears about what the court procedure would involve after a long protracted process is highly likely to contribute to the already high attrition rate in sexual offences, with many victim-survivors choosing to withdraw from the criminal justice system. The prospect that a case will be endured for years is also likely to act as a disincentive in terms of people disclosing and reporting abuse.

Delays can also have an impact on the victim/survivor’s evidence and both the survivor’s and the accused’s ability to recall the details of an alleged offence at trial can be severely affected by delay.

If a case went to trial, disclosing intimate sexual details in a room full of strangers can be extremely traumatising and distressing for survivors and when this research was published last year, there was concern that this distress could be exacerbated by changes to courtroom conditions made in response to delays created by the pandemic.

The report highlights that additional support will be crucial for victim-survivors encountering delays to their case and that advocacy support is highly effective.

“Not only did advocacy support improve victims’ experience of the criminal justice process and assist sustained engagement in this process, in some cases it also facilitated making a report of rape to the police in the first instance,” said the report.

Disappointment

However, such are the delays in cases that it will undoubtedly result in an impact on the provision of advocacy and other support services – including both the amount and intensity of service provision over a prolonged period and the duration that each survivor will require advocacy support.

The report states that sexual offences have profound and distinctive impacts and they present particular challenges for the criminal justice system. Hence, they merit distinctive responses. Reporting a crime and engaging with the ensuing criminal justice process can be a positive experience leading to a sense that ‘justice’ has been served, though it can also be an experience characterised by anxiety, uncertainty and disappointment in both the process and the outcome. This is significantly exacerbated by the prospect of lengthy delays in the case coming to any sort of conclusion.

“Identifying a means for streamlining the handling of sexual offences to minimise delays is essential, but it must also avoid further harm to the victim and give weight to those of the victim’s interests that are fundamental to their self-governance and well-being,” the report concludes.

Delays in Trials: the implications for victim-survivors of rape and serious sexual assault