Thursday, January 14, 2016
Name And Shame
We're only two weeks into the year, and already we have a candidate for The Most Shameful And Irresponsible Opinion Column of 2016 - take a bow, everyone at the Telegraph involved in producing this one on the anonymity of victims of sexual offences:
Name and shame the bogus victims - Why should innocent men... be put through hell to salve the conscience of two-timing "booze hounds"?
We have a two-for-one deal here - a failure to understand the difference between "Not guilty" and "Innocent of a particular crime", with the added assumption that a failed prosecution must logically be the result of a false accusation, maliciously made.
Well, let me put it this way. If I punch you in the head, and am later acquitted of punching you in the head, I still punched you in the head. That still happened, regardless of a jury's view on the matter.
The fact that I was found not guilty of the charge means only that the Crown couldn't prove to a jury's satisfaction that I was guilty.
It might sound like an obvious distinction but it's vital to bear it in mind when considering contentions such as:
"When rape accusations prove false and the defendant is acquitted, that cloak of anonymity should immediately be rescinded"
"The law fails to take into account... the manifest injustice to men in the approximately 40 per cent of rape cases where they are acquitted".
The difficulty of proving guilt in sexual offences cases is commonly understood, so I think I'm on safe ground to declare that we can say with absolute certainty that there's no way in hell that justice is done 100% of the time, or even close to it. That being the case, demands for the removal of anonymity post-trial are the same as demanding that we name actual rape victims, if they can't provide enough evidence to secure a conviction.
And that might not be so problematic, if it weren't for the way that the woman in this particular case is depicted by the Telegraph and other papers:
"...a (self-described) 'booze-hound', acknowledging her love of a drink... a boozy young woman, remorseful at playing away from a jealous boyfriend, (who) salves her conscience by going after the innocent young man with whom she had consensual sex..."
And who knows? This may even correct in this case, although you'll struggle to establish the truth of the matter from this article or from others about the same trial. The full evidence presented for the complainer's malfeasance is that
a) The jury didn't believe her,
b) She likes a drink, and
c) The defence lawyer claimed that she was "manipulative", "dangerous" and an "attention-seeking liar".
Well, a) juries disbelieve people who tell the truth every day of the week in courts throughout the land; b) pretty much everyone likes a drink, and c) if we took the statements of defence lawyers as gospel, the only places emptier than newspaper offices would be prisons.
And this is all before we get to the real howlers, too:
"The inequity (of victims' anonymity) is mind-blowing. The system as it stands makes a mockery of the central tenet of criminal law - the presumption of innocence. The honourable notion that it is for the prosecution to prove guilt rather than the defendant to prove innocence..."
...Which would be a remarkable claim in itself, even if it wasn't bang in the middle of a lengthy complaint about a high-profile case in which the defendant plainly did benefit from the presumption of innocence, and in which the prosecution actually did fail to prove guilt.
"As such it means that women who make false accusations will never be held to account - regardless of the cost".
Another remarkable assertion, given that people who do make false accusations of sexual assault are regularly prosecuted for offences, and while perjury itself remains very illegal. To return to an earlier point though, the author is - whether wilfully or through ignorance - asserting that unsuccessful prosecutions are the result of false allegations, when this is patently not so.
Anyway, here's why I find all of this particularly alarming. In my (limited) experience, the most difficult obstacle to overcome in prosecutions for rape often isn't legal or technical.
The biggest problem is usually the damn jury, because the people on it bring all manner of unpredictable preconceptions about people and sex offences into court with them. The same problems come up repeatedly:
- Jurors appreciate the severity of branding a person as a sex offender, and are thus extremely reluctant to do so unless they're absolutely convinced of guilt;
- Some jurors tend to assume that anyone telling a garbled story, or a story that features contradictions, is lying; they also tend to dislike victims who are angry or inarticulate, or both. You can imagine why this would be problematic in rape trials, when the defence are doing their damnedest to tear victims' testimony to shreds; and
- Jurors can be surprisingly prissy, frowning on behaviours that they themselves would never indulge in, such as e.g. getting drunk, being on drugs or acting in an overtly sexual manner.
All this is bad enough, so the very last thing that will assist in the deliberations of jurors who may already be looking for an excuse to acquit are assertions that people - and women in particular - make malicious rape allegations as a matter of routine.
It's staggering to me that this type of stuff can make it into a broadsheet newspaper in 2016. I'm presuming here that this piece had to go past both editorial and legal oversight before publication. The fact that it did so in this form, is a bit like a bloodstained serial-killer with a shotgun being waved through airport security - it should just never, ever happen, if anyone involved takes any pride in or responsibility for their work.
Still, congratulations to the Telegraph. I hadn't realised that the paper was actively trying to make Britain a worse place for its citizens to live but, since it clearly is, we should all recognise that it's doing a bang-up job so far.
*For context here: Consider what you would have to do, in order to pursue a false accusation of rape. You'd have to give the police a convincing story, and then stick to it with almost no deviation through repeated interviews over a period of months; you may have to endure highly invasive medical examinations; you might have to fake injury, and you'd have to tell a credible story in a packed courtroom under threat of prosecution.
Christ, giving evidence in court is nerve-wracking even if you're just a witness, and even when you're telling the truth. It would be very difficult indeed to pull off a scam of this magnitude without being prosecuted or facing explicit censure from a judge, unless you are a narcissistic psychopath on the level of Amy from Gone Girl.
That being so, you can probably imagine how credible the idea that anything like 40% of accusations may be false is.
**There is an "inequity" in this particular case which has gone unaddressed, and it's this - if you or I were accused of this type of crime, we'd have to fund our defence out of our own pockets. Which would mean that we'd be far more likely to be defended by Lionel Hutz than the Queen's Counsel who actually appeared - they cost thousands, tens of thousands, to hire. Which is fine, but the accused's access to shit-hot legal representation lessens the supposedly terrible nature of this trial even further.
Additionally, if you or I were accused of such a crime and were found not guilty, the nation's right-wing press definitely would not flock to hear our tale of woe and to repeat it to the nation as an outrageous scandal, as has happened in this case.
Reading between the lines, the reason why the hacks are all over this case is that the accused is posh; because he has access to lots of money, and is quite well-connected. I may be wrong about that, but I suspect that I'm right.