And Justice for Some…

I have long thought that the current adversarial system we have is unsuitable for sensitive issues such as rape trials. I much prefer a jury-less inquisitorial trial where a case can be judged on the overall merits of the evidence available rather than be the subject of media pruriency. This is why I have much sympathy for Louise Nicholas and the unenviable task of the members of the taskforce for action on sexual violence. Their report (pdf) was released yesterday and makes interesting reading. Nicholas hails it as a victory saying “the war is won“.

Most of the Report, if a little waffly and non-rigourous, is reasonably argued and makes some excellent suggestions. I particularly like the idea of specialised rape prevention and rape rehabilitation centers suggested. I do not like the idea of leaving the treatment of sexual abuse victims under the aegis of ACC. To my mind this is much more appropriately dealt with under the standard mental health services, which would, admittedly, need serious revamping to cope.

But the issue that troubles me most in the report is the one of legislative reform. The report recommends that the judge instructs the jury that they do not need corroborating evidence or forensic evidence to come to a conclusion concerning the guilt of the accused. I find this an extremely dubious idea. Essentially, it instructs the jury to decide (in the absence of any evidence) based entirely on the credibility of the victim and the accused (i.e. who do you believe the most). This is a very poor way of deciding whether to put someone in jail for a long period of time. Even in historic rape cases such as the Nicholas trial, there was corroborating evidence (just not enough to convince the jury). A trial should be about the evidence presented, not about a long procession of character references. Justice is not a popularity contest.

Worse still, the report suggests:

“…an obligation should be placed on the judge in sexual violence cases to direct the jury that the standard of beyond reasonable doubt does not mean that no doubt can exist in their minds.”

This sounds suspiciously like suggesting that the standard of evidence for conviction of rape does not have to be quite as convincing as the evidence for, say, murder. While absolute certainty is rarely on offer in any trial, the standard of beyond reasonable doubt means just that. The only doubts you are allowed to entertain are unreasonable ones. Doubts that are driven by prejudice and emotion are unreasonable. Doubts because of a lack of convincing evidence are reasonable, even the tiniest ones. I like the definition offered by the ‘Lectric Law Library (a useful site, despite it’s awful name):

“REASONABLE DOUBT – The level of certainty a juror must have to find a defendant guilty of a crime. A real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case.

“Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. However, it does not mean an absolute certainty. [emphasis mine]”

Essentially, you must be absolutely convinced before you convict, even if you can’t be absolutely certain.

Much as I would like to see everything done to make it easier for victims of sexual abuse and rape to bring cases to court, the last thing we need is to make it easier to convict. The burden of proof must remain the same or else we may as well save money and have our trials run by kangaroos…

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