THE PSYCHOLOGIST : Why rule of law can’t be sacrificed to secure conviction

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.

https://www.theaustralian.com.au/commentary/why-rule-of-law-cant-be-sacrificed-to-secure-conviction/news-story/590b107ebe43c81f0b7007765a3a6f15

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Background

The essence of conservatism is caution. The essence of Leftism is anger

This blog is written solely by John Ray, who has a Ph.D. degree in psychology and 200+ papers published in the academic journals of the social sciences. It does occasionally comment on issues in psychology but is mainly aimed at giving a conservative psychologist's view on a broad range of topics. There are very few conservative psychologists.

The blog originated in Australia and many (but not most) posts discuss Australian matters. Australians have an unusually good awareness of events outside their own country. Australian newspapers feature news from Britain and the USA not as an afterthought but as a major part of their coverage. So Australians do tend to have a truly Western heart, which is the reason behind the old name for this blog. So events in Australia, Britain and the USA all feature frequently here, plus occasional coverage of other places, particularly Israel.

A primer in American politics for non-Americans:

SCOTUS is the Supreme Court of the United States, the highest court in the land

The "GOP" stands for "Grand Old Party" and refers to the Republican party. The GOP is at present center/Right, while the Democrats have been undergoing a steady drift Leftwards and now have policies similar to mainstream European Leftist parties.

The ideological identity of both parties has however been very fluid -- almost reversing itself over time. In the mid 19th century, the GOP was the party of big government and concern for minorities while the Democrats advertised themselves as "The party of the white man" -- an orientation that lasted into the mid 20th century in the South. The Democrats are still obsessed with race but have now flipped into support for discrimination AGAINST whites.

Was Pope Urban VIII the first Warmist? Below we see him refusing to look through Galileo's telescope. People tend to refuse to consider evidence— if what they might discover contradicts what they believe.

Global warming

Calibrated in whole degrees. Larger graph here

Climate scientist Lennart Bengtsson said. “The warming we have had the last 100 years is so small that if we didn’t have meteorologists and climatologists to measure it we wouldn’t have noticed it at all.”

The term "Fascism" is mostly used by the Left as a brainless term of abuse. But when they do make a serious attempt to define it, they produce very complex and elaborate definitions -- e.g. here and here. In fact, Fascism is simply extreme socialism plus nationalism. But great gyrations are needed to avoid mentioning the first part of that recipe, of course.

Two examples of Leftist racism below (much more here and here):

Beatrice Webb, a founder of the London School of Economics and the Fabian Society, and married to a Labour MP, mused in 1922 on whether when English children were "dying from lack of milk", one should extend "the charitable impulse" to Russian and Chinese children who, if saved this year, might anyway die next. Besides, she continued, there was "the larger question of whether those races are desirable inhabitants" and "obviously" one wouldn't "spend one's available income" on "a Central African negro".

Hugh Dalton, offered the Colonial Office during Attlee's 1945-51 Labour government, turned it down because "I had a horrid vision of pullulating, poverty stricken, diseased nigger communities, for whom one can do nothing in the short run and who, the more one tries to help them, are querulous and ungrateful."

Defensible and indefensible usages of the term "racism"

The book, The authoritarian personality, authored by T.W. Adorno et al. in 1950, has been massively popular among psychologists. It claims that a set of ideas that were popular in the "Progressive"-dominated America of the prewar era were "authoritarian". Leftist regimes always are authoritarian so that claim was not a big problem. What was quite amazing however is that Adorno et al. identified such ideas as "conservative". They were in fact simply popular ideas of the day but ones that had been most heavily promoted by the Left right up until the then-recent WWII. See here for details of prewar "Progressive" thinking.

R.I.P. Augusto Pinochet. Pinochet deposed a law-defying Marxist President at the express and desperate invitation of the Chilean parliament. He pioneered the free-market reforms which Reagan and Thatcher later unleashed to world-changing effect. That he used far-Leftist methods to suppress far-Leftist violence is reasonable if not ideal. The Leftist view that they should have a monopoly of violence and that others should follow the law is a total absurdity which shows only that their hate overcomes their reason

Franklin Delano Roosevelt was a war criminal. Both British and American codebreakers had cracked the Japanese naval code so FDR knew what was coming at Pearl Harbor. But for his own political reasons he warned no-one there. So responsibility for the civilian and military deaths at Pearl Harbor lies with FDR as well as with the Japanese. The huge firepower available at Pearl Harbor, both aboard ship and on land, could have largely neutered the attack. Can you imagine 8 battleships and various lesser craft firing all their AA batteries as the Japanese came in? The Japanese naval airforce would have been annihilated and the war would have been over before it began.

FDR prolonged the Depression. He certainly didn't cure it.

WWII did NOT end the Great Depression. It just concealed it. It in fact made living standards worse

Joe McCarthy was eventually proved right after the fall of the Soviet Union. To accuse anyone of McCarthyism is to accuse them of accuracy!

The KKK was intimately associated with the Democratic party. They ATTACKED Republicans!

People who mention differences in black vs. white IQ are these days almost universally howled down and subjected to the most extreme abuse. I am a psychometrician, however, so I feel obliged to defend the scientific truth of the matter:

The average African adult has about the same IQ as an average white 11-year-old and African Americans (who are partly white in ancestry) average out at a mental age of 14. The American Psychological Association is generally Left-leaning but it is the world's most prestigious body of academic psychologists. And even they have had to concede that sort of gap (one SD) in black vs. white average IQ. 11-year olds can do a lot of things but they also have their limits and there are times when such limits need to be allowed for.

America's uncivil war was caused by trade protectionism. The slavery issue was just camouflage, as Abraham Lincoln himself admitted. See also here

Did William Zantzinger kill poor Hattie Carroll?

Did Bismarck predict where WWI would start or was it just a "free" translation by Churchill?

Leftist psychologists have an amusingly simplistic conception of military organizations and military men. They seem to base it on occasions they have seen troops marching together on parade rather than any real knowledge of military men and the military life. They think that military men are "rigid" -- automatons who are unable to adjust to new challenges or think for themselves. What is incomprehensible to them is that being kadaver gehorsam (to use the extreme Prussian term for following orders) actually requires great flexibility -- enough flexibility to put your own ideas and wishes aside and do something very difficult. Ask any soldier if all commands are easy to obey.

A good article on Leftist hate

The real history of social Darwinism

Some personal memoirs

Memoir highlights

THE PSYCHOLOGIST

Why rule of law can’t be sacrificed to secure conviction

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