LW v HMA [2020] HCJAC 50

The appellant, LW, had been found guilty of rape of his stepdaughter and of incest under s2B of the Sexual Offences (Scotland) Act 1976 on the 31st of October 2019. The appellant sought to appeal his conviction for rape. The appellant did not seek to appeal against the conviction for incest.

The appellant argued that the allegation of rape could not be corroborated by the fact that he had fathered her child by the very nature of the familial relationship and general domestic circumstances.

The complainer had died before the trial but had given a statement to the police prior to her death. In her statement the complainer stated that the appellant began sexually abusing her when she was aged 13 and began raping her when she was 16.

The complainer and the appellant had a son together who was born in March 1992 and his paternity was established through DNA. The complainers mother had said that this was a surrogacy arrangement wherein the complainer was artificially inseminated with the appellant’s semen in exchange for financial support. A no case to answer submission was made and repelled. The complainer’s mother did not speak of any surrogacy arrangement when she was questioned by the police. The complainer’s mother spoke to how the complainer would refer to the appellant as her father. The jury appears to have not accepted this explanation and conviction followed.

The appeal submitted that although corroboration could be found by circumstantial evidence (the conception of the child) that sex took place between the appellant and complainer, there was not corroboration for the lack of consent. The appeal further submitted that the evidence of the domestic circumstances did not support or confirm the complainer’s account and it was not unknown for sexual attraction to exist between parent and child.

The crown submitted that “Evidence of the parental relationship was independent evidence which was capable of supporting the complainer’s evidence that she did not consent” and that “A jury would be entitled to hold that a girl would not choose to have sex with a man whom she considered to be, and called, her father and who was living with her mother in the family home”.

In delivering the opinion of the court Lord Carloway stated that sexual intercourse was corroborated by the signing of the joint minute which agreed that the appellant was the father of the complainer’s child.

Lord Carloway stated, in determining the question of whether there was a lack of consent, that:

“Where absence of consent is to be corroborated by circumstantial evidence, the question will be whether the circumstances are capable, in combination, of yielding an inference which supports or confirms the complainer’s testimony. When this arises as a question of sufficiency, the evidence relied upon by the Crown is to be taken at its highest. It is to be interpreted in the way most favourable to the Crown.”

“In the complainer’s situation, 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.”

As a result it was open for the jury to accept the above analysis and therefore to find corroboration. The appeal was refused.