Why rule of law can’t be sacrificed to secure conviction
Does anything justify putting innocent people in jail? That is the big risk when we drop standards
Why do so many cases of sexual abuse fail? Many fail because they were weak cases in the first place that were pursued only for reasons of political correctness.
A case that boils down only to she says/he says should not be prosecuted but if the allegation gets publicity few prosecutors would refuse to prosecute -- lest they be accused of covering up an injustice
The Higgins/Lehrman case was an example of that, and prosecuter Drumgold was an example of a politicaly correct prosecutor. In the end, Drumgold was the only one penalized, which was justice of a sort
Improving outcomes for sexual assault victims will not be achieved by diminishing the fundamental foundations of the rule of law.
As Walter Sofronoff KC recently observed, when it comes to addressing allegations of sexual assault, there are two separate but parallel systems operating: the victim support system and the criminal justice system.
In the former, accepting without challenge what a victim asserts, using language such as “victim-survivor”, “her truth” and “believe all women” often will be necessary and appropriate in that therapeutic environment to provide the best emotional, financial and other supports needed by victims of sexual violence.
However, when an allegation of sexual assault leads to a criminal investigation or prosecution, the fundamentals of the criminal justice system must be maintained.
This includes the presumption of innocence, the obligation of the prosecution to prove a criminal allegation beyond reasonable doubt and the right of an accused to remain silent.
Much recent debate in this area has ignored the significant differences and purposes of these systems and focused on raising low conviction rates, which are often quoted as being about or below 20 per cent.
These statistics generally ignore all the allegations resolved by pleas of guilty.
Proposals have included better education (and re-education) of judges and lawyers, abandoning trial by jury and standing up specialist sexual assault courts staffed with specially trained judges and advocates where (presumably) more guilty verdicts will be returned.
Such “reforms”, even if made with good intentions, would pave the way to a drastic erosion of the rule of law in this country.
If two convictions for every 10 trials is unacceptable, what number would be deemed acceptable? Fifty per cent? Eighty per cent?
Presumably to those who subscribe to the “believe all women” philosophy in the criminal justice system as well as in the victim assistance space, anything less than 100 per cent would be unacceptable.
Which, then, of those three or eight people found not guilty in this sample should have been found guilty? And why? Because it is implicit in these proposals that if we are to achieve some arbitrary acceptable metric, like a 50 per cent conviction rate, then at least two or three more not guilty verdicts should’ve been guilty verdicts.
Eighteenth-century jurist William Blackstone wrote, “It is better that 10 guilty persons escape than that one innocent suffer.” The principle behind this statement finds voice in concepts such as the presumption of innocence, and guilt beyond reasonable doubt.
Do we as a liberal democratic society still subscribe to this principle? Or are we content to allow some innocent people to suffer the consequences of a wrongful conviction (and their loved ones and dependents necessarily as well)? Do we relax or abrogate the presumption of innocence or the standard of proof only in sexual assault prosecutions or across the board?
Is this visceral (and justifiable) desire to better recognise the failures of the past, to acknowledge and address the alarming levels of sexual and domestic violence and abuse in this country, justify us essentially adopting a warlike footing where collateral damage is an unfortunate but necessary consequence of winning the war? For some advocates the answer appears to be a resounding yes. Presumably though, qualified to the extent that they, or their partner, father, brother, relative, friend, colleague etc isn’t among the putative innocents to be subjected to this form of collective punishment.
Experienced criminal lawyers across this country lament that prosecutors will rarely (if ever) decline to prosecute an allegation of sexual assault. Recently the media has reported examples of sexual assault prosecutions that, on any objective assessment, were doomed to fail.
While there may be cases of juries deciding the case having relied on rape myths – such as a genuine victim would say no or fight back or complain immediately, or a genuine victim would not go out in those clothes or to those places – I suggest these are rare.
Modern juries give little credence to such ignorant and outdated propositions. Judges are now particularly vigilant to identify and direct juries from engaging in such reasoning.
There are certainly cases where police could and should have done more thorough investigation and where a failure to secure crucial evidence may well have led to an acquittal. But the most significant factor in explaining why we have such low conviction rates among sexual assault prosecutions is that prosecutors insist on running cases that have no reasonable prospect of succeeding.
“Let the court decide” is an all too familiar refrain from prosecutors around the country who are not prepared to make the difficult decision not to prosecute an allegation of sexual assault even when it is apparent there is no realistic prospect of proving the case beyond a reasonable doubt. Whether this is because of a fear of being criticised by a vocal complainant, interest group or the media is difficult to know.
Not proceeding to prosecute a particular allegation of sexual assault should not and does not have any impact on that complainant’s capacity to receive support from victims of crime services. It does not mean the prosecutor does not believe the complainant. It is simply a consequence of the obligation to prosecute only cases that have a reasonable prospect of succeeding. Even assuming there is a public interest in prosecuting every allegation of sexual assault, the overriding obligation remains not to prosecute any person on a charge unless there is a reasonable prospect of obtaining a conviction.
Every jurisdiction has some variation of the “reasonable prospects” test. In the ACT section 2.4 of the Prosecution Policy provides: “The decision to prosecute can be understood as a two-stage process. First, does the evidence offer reasonable prospects of conviction? If so, is it in the public interest to proceed with a prosecution.
In any 10 sexual assault prosecutions at least four of those 10 cases are pursued without any reasonable prospects.
Apart from imposing significant financial and emotional tolls on the accused person, the prosecution of these cases also means the complainant will go through an unnecessarily stressful and traumatic trial process.
In addition, it’s likely at least one of the remaining six cases might have been successful if police had undertaken a better investigation. On this analysis, three of the six cases that met the reasonable prospects test would have resulted in guilty verdicts – giving a conviction rate of 50 per cent. A more than doubling of the current rate without resorting to re-education camps for lawyers and judges, specialist tribunals or abolishing juries.
Higher conviction rates in sexual assault prosecutions can be achieved without entering into a Faustian-like pact with the devil; in this case a bargain in which the soul of the rule of law is sold into damnation on the promise of higher conviction rates.