A woman who waived her right to anonymity to accuse two footballers of rape says she has been vindicated after a judge ruled that they were rapists and awarded her £100,000 in damages.
Denise Clair, 30, sued David Goodwillie and David Robertson in the first civil rape case of its kind in Scotland.
Ms Clair, a mother of one, said that a previous decision by the Crown Office not to prosecute the pair had left her feeling suicidal.
The footballers, who at the time were team-mates at Dundee United, raped her at a flat in Armadale, West Lothian, after a night out in nearby Bathgate, the judge ruled.
Ms Clair maintained that she was incapable of agreeing to have sex with the pair in January 2011 because she had consumed too much alcohol, but Goodwillie, 27, who now plays for Plymouth Argyle, and Robertson claimed that intercourse had been consensual.
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She had originally sought £500,000 in compensation but damages were agreed at £100,000 in the civil action at the Court of Session in Edinburgh.
Ms Clair said: “I am pleased by the verdict. However, I am bitterly disappointed that I was so badly let down by the criminal justice system and was forced to seek a remedy through the civil court.
“If it was not for the support of my lawyer, Cameron Fyfe, and the team at Rape Crisis Scotland, I do not know how I could have coped throughout this long, harrowing journey.”
Plymouth Argyle confirmed yesterday that Goodwillie had been temporarily dropped from the team after the judgment.
Lord Armstrong said: “Having carefully examined and scrutinised the evidence in the case, I find the evidence of the pursuer [Ms Clair] to be cogent, persuasive and compelling.
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“In the result, therefore, I find that in the early hours of Sunday, January 2, 2011, at the flat in Greig Crescent, Armadale, both defenders [the footballers] took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol and, because her cognitive functioning and decision-making processes were so impaired, was incapable of giving meaningful consent, and that they each raped her.”
The judge said that he found neither Goodwillie nor Robertson, 30, who is now at the League Two Scottish club Cowdenbeath, to be credible or reliable. Referring to the Crown Office’s decision not to prosecute, Lord Armstrong said that Ms Clair had “found that decision difficult to understand and had felt that she had not been believed.
“She felt that her life had been destroyed by something which had happened although, because of her lack of memory, she was not fully aware of what it was that had caused that effect.”
Simon Di Rollo, QC, senior counsel for Ms Clair, said: “It was incredibly brave of Ms Clair to have brought the action, in which, unlike in a criminal case, she did not enjoy anonymity.
“The case illustrates the importance of the 2009 Sexual Offences (Scotland) Act, which clearly spells out that free agreement to sexual activity cannot be given while a person is incapable because of the effect of alcohol. The court accepted that Ms Clair was incapable and that anyone dealing with her would have known that.”
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Mr Fyfe, her lawyer, added: “Her determination may encourage other victims who feel they have been let down by the criminal system to turn to the civil court for a remedy.”
Plymouth Argyle FC said: “We note the judgment from the Court of Session regarding David Goodwillie. We await the full report, which we will consider in detail before making any comment.
“Until such time, David Goodwillie will not be selected to play for Plymouth Argyle.”
Robertson has also been suspended by Cowdenbeath.
Rape Crisis Scotland described the ruling as a “landmark case”, which would broaden access to justice.
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However, Sandy Brindley, the charity’s co-ordinator, said: “We appreciate that the burden of proof is different in civil justice compared to criminal justice, but we do think there are questions for the Crown to answer about why they dropped this case, and their willingness to prosecute in cases where someone is so drunk they do not have the capacity to consent.”
The Crown Office, however, said that it stood by its decision six years ago not to pursue a criminal prosecution. It stated: “The decision not to proceed was based on the full facts and circumstances and after careful consideration of the evidence by Crown counsel.”
Analysis: When hearsay can be damning
Scotland is like most sophisticated legal systems in having both civil and criminal law and procedure. Criminal law is the state v the citizen, civil law is citizen v citizen. There is overlap.
In the case of Goodwillie and Robertson, rape is both a crime and a delict, or civil wrong, so someone who misbehaves may break both criminal and civil law and be subject to sanction in both courts. This is not unique or new.
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OJ Simpson was notoriously acquitted of two murders in the criminal court in California in 1995, but was found liable to the victims’ families for damages of $33.5 million after a civil suit two years later.
Francis Auld was cleared of murdering Amanda Duffy in the high court in Glasgow in 1992, but found civilly liable for £50,000 damages, though he did not contest the matter. No money has been paid.
There are some obvious differences between the two tracks. In criminal trials the Crown must prove its case beyond reasonable doubt, and we (still) have a rule that requires corroboration of all charges by multiple sources of direct evidence.
In civil law, no corroboration is needed if not available, hearsay evidence is allowed and the standard is the lower one of the balance of probabilities. Also, civil sanctions are purely financial — the Court of Session has no power to imprison in a damages action.
Austin Lafferty is a solicitor and commentator