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Published: Fri, 02 Feb 2018

Corroboration by distress

1. Demonstrating breadth and depth of:

a. Corroboration by distress

Corroboration by distress is defined as evidence that tends to support a proposition that is already supported by some evidence.

Corroboration by distress figures significantly in rape cases in Scotland. This is an important element in proving that a rape crime has taken place and this form of corroboration is possible. Legal sexual intercourse cannot take place without a prior active consent from the female party involved. This was, in fact, established in Lord Advocate’s Reference (No. 1 of 2001) and demonstrated in HMA v L (2007) HCJ16. In this particular case, a woman had fallen asleep on the sofa in the living room of the accused, only to wake up later to discover that the accused was having sexual intercourse with her. She left the house after that in great distress and informed her boyfriend about the incident. The accused, however, maintained that it was consensual. The main argument that figured in this case was that there was not enough evidence to prove the accused’s mens rea. On the victime’s side, it was asserted that the woman had been sleeping when the intercourse took place, therefore, rationally, there was no clear or active consent from the female party – so one may argue that there was in fact a criminal intent. The victim’s clear distress should be sufficient to support the evidence that there was a lack of consent on her part.

b. The best evidence rule

Best evidence rule is a common law rule of evidence in proving that what is said or pictured in writing, recording or photographed the original must be provided unless it is lost, destroyed or unobtainable.

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