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"When rape accusations prove false and the defendant is acquitted, that cloak of anonymity should immediately be rescinded" 

or

"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.

17 comments:

ejh said...

last year Angela Epstein was the ghost writer of The Art of the Loophole: Making the Law Work for You by celebrity lawyer Nick Freeman

flyingrodent said...

That does put it in some perspective, yes.

Also, her most recent article was about sexual harrassment of men in the workplace by women, which suggests that her occupation might be professional trolling.

Harmain said...

Guilty until proven innocent isn't enough for you, now you want guilty regardless of innocence.

Phil said...

Amen to all of that. I'd add that our society's views on sex and reproduction are so screwed-up that women in court face a minefield of double-binds. If she says Yes (ever) she's a depraved sex beast, if she says No she's a prick-teasing seductress, and if she says No consistently and actually means it she's warped and unhealthy - unless she's a lesbian (and not admitting it, which takes us back to 'seductress'). It's amazing that more rape prosecutions don't get chucked out.

flyingrodent said...

Guilty until proven innocent isn't enough for you, now you want guilty regardless of innocence.

This isn't an ethical question, it's a fairly straightforward legal one.

"Guilty" means "The prosecution proved beyond reasonable doubt (to the jury's satisfaction) that the accused committed a specific crime".

"Not guilty" means "The prosecution did not prove beyond reasonable doubt (to the jury's satisfaction) that the accused committed a specific crime".

Both are the best we can do in an imperfect legal system, and relate only to the available evidence rather than to the literal truth of the accusation.

The alternative is to believe that nobody is ever found guilty of a crime that they didn't commit, or found not guilty of one that they did. If that was the case, we wouldn't need appeals courts, and a lot of lawyers could put their feet up.

barney greenwald said...

So, in America the standard is "Innocent until proven guilty." Does that mean that in the UK the standard is "maybe guilty until proven definitely guilty beyond a reasonable doubt?"

Gary Othic said...

This does seem to be a rather worrying cultural trend, the belief that women are always making rape accusations and manipulating. I thought it was just going to be confined to the seedier places of the internet (you know, Reddit, 4chan), but if a mainstream broadsheet is publishing such drivel then that's a concern.

flyingrodent said...

The standard is the same in the US and the UK.

This isn't difficult stuff here, or even vaguely controversial. The court is there to examine the evidence presented and to reach the best verdict that it can based upon that.

What it can't do, for obvious reasons, is look into your soul and magically divine whether you did it or not.

Anonymous said...

I served in a Jury recently and you are bang on about the shortcomings of Jurors. The lot I was with neglected the Judge's specific instructions not to speculate. During deliberation I sat and listened to each person's theory - with no relevance to the evidence presented in court - and in the end it basically boiled down to whether they liked the plaintiff or not.

I now think the Jury system is rather obviously flawed and that unqualified people shouldn't be made to make such decisions.

flyingrodent said...

A bit of credit to the Telegraph for allowing a rebuttal, and a much better one than mine: http://www.telegraph.co.uk/women/life/every-rape-accuser-deserves-anonymity---its-the-least-we-can-do/

Demerits to the Telegraph though for stashing this away in the "Women" section, so that I only found it by searching for it.

ejh said...

One point: when somebody is found not guilty we do not charge the people who testified against them with perjury. If somebody is guilty we do not charge them with perjury, and so on. There are any number of good reasons for this, including but not limited to the fact that to do so would have a chilling effect on the capacity of people to give evidence in court. Everybody understands this, including the writer of the offending article.

A second point: we do not require juries to give reasons for their decisions. If you go to court alleging that I assaulted you by punching you on the nose, and I say that I have never seen you before in my life, and I am found not guilty, it may very well be that the jury considered me a truthful witness and you an unreliable one. But it may also be that they don't believe a word I said, and yet aren't sufficiently persuaded by your account to be sure I am guilty as charged, even though they may be quite sure that you believe what you say. We simply don't know, and it's really important that because a witness's account appears to be rejected by the verdict, it doesn't follow that the jury considers that the witness wasn't telling the truth as they saw it.

I think the writer of the article understands that, too.

Chris said...

There's no good reason for people making accusations of sexual offences to have anonymity. I will name any victim I hear of.

pjt said...

ejh: "when somebody is found not guilty we do not charge the people who testified against them with perjury."

I think you do, if they committed perjury?

Perjury isn't the act that a testimony failed to secure a conviction. It is the intentional act of swearing a false oath or of falsifying an affirmation to tell the truth.

Regarding the publishing of names of the accuser and the accused, I'm puzzled by asymmetry, i.e. the British practice of allowing to publish the identity of the accused rapist when the case is far from clear, with a threshold that is much lower than where I live. There really is a problem in the UK (and elsewhere), as some tragic cases demonstrate.

Anonymous said...

[i]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[/i]

not convicting unless they're absolutely convinced of guilt is what the jury is supposed to do though, surely? or rather, if you do think this is a problem, then it IS 'legal or technical' in that the you're arguing that the burden of proof should be lowered?

should note that I agree that the telegraph article is despicable

flyingrodent said...

not convicting unless they're absolutely convinced of guilt is what the jury is supposed to do though, surely? or rather, if you do think this is a problem, then it IS 'legal or technical' in that the you're arguing that the burden of proof should be lowered?

In all criminal trials, juries are asked to decide whether a charge has been proven "beyond reasonable doubt", rather than whether they're absolutely convinced. Their interpretation of "reasonable doubt" seems to me to be far more stringent for rape/abuse cases than in other, equally serious crimes, for various reasons.

Anonymous said...

Surely the point here is the obloquy of being publicly accused, for which there is no redress.

You say that "people who do make false accusations of sexual assault are regularly prosecuted for offences". And your evidence would be...what?

Randomly, I looked at a few high-profile cases - Jimmy Tarbuck (who spent a year on bail), Jim Davidson, and Coronation Street stars William Roache and Michael Le Vell. As entertainers, their public profile is critical to their careers and to their income. So inevitably they were damaged by the accusations against them, though their cases, having been taken up by the authorities and enthusiastically reported in the press, were either never pursued or resulted in full clearance.

However, I'm unable to find any confirmation that any of their accusers were prosecuted. Maybe you can correct me on this?

Anonymous said...

In all criminal trials, juries are asked to decide whether a charge has been proven "beyond reasonable doubt", rather than whether they're absolutely convinced

Technically the instruction is that they must be 'satisfied so that [they] are sure' the accused is guilty. 'Beyond reasonable doubt' is a lovely phrase but it's not used any more.

It is deliberately left up to the jury members to decide what 'sure' means, and this may differ between types of cases or it may not — there is no way to know as jury deliberations may not be released.