Independent Legal Representation in Rape Cases: Meeting the Justice Deficit in Adversarial Proceedings

The criminal justice response to rape complainants in adversarial proceedings is a continuing source of concern. Despite improvements in the way that rape allegations are investigated and prosecuted, recent literature affirms that significant problems remain. This article argues that affording independent legal representation (ILR) to rape complainants would help to safeguard their rights and interests. It considers many of the objections typically raised against the introduction of ILR, and challenges the perception that third party representation is incompatible with adversarial criminal procedures, and in particular, the right of the accused to a fair trial. The article outlines a model of ILR that could be introduced in Scotland, a common law jurisdiction deeply committed to its adversarial heritage. Such a model could have wider significance for other common law countries, given the generic nature of many of the criticisms of rape prosecutions.