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Raising rape as a personal injury issue – why this was a landmark ruling

Cases concerning rape in a civil court are virtually unheard of in Scotland, which is why the decision on the case involving professional footballers David Goodwillie and David Robertson is a landmark ruling.

The most unusual aspect of this ruling is that a court in Scotland has determined that they committed rape but despite this they won’t be placed on the sex offenders register. Why is this? Well, such a verdict in a civil case is not the same as that of a criminal case. Due to being a civil case, neither has – in legal terms - committed a criminal offence.

Civil claims for rape and sexual offences by an individual are generally quite rare and this was actually raised by the pursuer as a personal injury issue. In most instances the accused will be someone who is not worth suing in a civil court as they won’t have the funds to meet any pay-out. However, as Goodwillie and Robertson are both professional footballers, they are exceptions to this norm.

In Scotland criminal law requires the Procurator Fiscal to establish guilt ‘beyond reasonable doubt.’ Conversely, civil law requires the pursuer to prove their case on the ‘balance of probabilities.’ This means it is more difficult to prove guilt in a criminal case. With regards to this specific case, the Procurator Fiscal decided against proceeding with criminal charges in July last year.

High-profile criminal cases involving Adam Johnson and Ched Evans resulted in both players being sentenced to prison and sacked from their clubs at the time of their conviction. Evans has since had his conviction overturned but there is no doubt his reputation has not recovered from the initial guilty verdict. Chesterfield FC was heavily criticised for signing Evans in summer 2016.

Time will tell if either player has a future in football. Will the fact this was a civil case be their saving grace? Plymouth and Cowdenbeath - the clubs which Goodwillie and Robertson play for respectively – both stated neither will play for the club until further notice. One thing is for sure – public perception of both players will be the biggest influence on how they are treated by the footballing world going forward. It may also affect whether or not they appeal the ruling.

It is unlikely that this decision will see more cases of this nature bought to the civil court in the way a personal injury claim would be. As stated, there is no criminal conviction so unless the accused is able to meet any pay-out, so it is difficult to see a rise in cases off the back of this judgement.