Background History – Bad Treatment of Complainants
In the 1980s, a woman was raped. She was shocked, traumatised and took steps to try to ensure that she would not see the person ever again.
But she did not go to the police. Why not?
The main reason was that the police had a very bad reputation concerning the way that women who reported sexual assaults were treated by them. (Much worse than it is today).
The perception was not only that they were ‘disbelieved’ but that there would be little, if any, sympathy and she would not be taken seriously.
There was a perception that women who reported such crimes were made to feel that, if it happened at all, then they themselves were probably largely to blame. Furthermore, there was the impression that many men in the police thought that they should “just get over it”.
Naturally, and justifiably, women felt that this was an unacceptable attitude and an intolerable situation but we need to be more specific and ask “What exactly was wrong with the attitude of the police?”
I’ll give my answer to that question a little later but, for now, let’s move on.
Switching sides – “Believe the victim”
Women’s groups’ campaigns against this treatment; a similar trend was happening in the United States and, gradually, the self-described ‘victims’ became a powerful minority group.
Our justice system listened and responded – and made a big mistake.
In 2014, the then Director of Public Prosecutions (DPP) in the UK, Keir Starmer, changed the policy of the Crown Prosecution Service (CPS) of which he was the head, encouraging the them (and by extension the police) to start with the assumption that the complainant is telling the truth. ‘Victims’ were encouraged to come forward with the assurance “you will be believed”. One effect of this change was that complainants were called ‘victims’ from the outset and, by extension, the accused person must therefore be the ‘perpetrator’.
Genuine victims of sexual offences may understandably think that this is a great step forward. However, it creates one huge problem:
The assumption that a complainant is telling the truth which automatically creates the assumption of guilt for the accused person flies in the face of, arguably, THE FIRST Principle of British Justice – the presumption of innocence.
[See my post: The first principle of a just legal system].
Victim or Complainant?
Sir Richard Henriques, in his report of the Met Police handling of Operation Midland concluded:
“I have a clear and concluded view. All ‘complainants’ are not ‘victims’. Some complaints are false and thus those ‘complainants’ are not ‘victims’. Throughout the judicial process the word ‘complainant’ is deployed up to the moment of conviction where after a ‘complainant’ is properly referred to as a ‘victim’.
Since the entire judicial process, up to that point, is engaged in determining whether or not a ‘complainant’ is indeed a ‘victim’, such an approach cannot be questioned. No Crown Court judge will permit a ‘complainant’ to be referred to as a ‘victim’ prior to conviction.
Since the investigative process is similarly engaged in ascertaining facts which will, if proven, establish guilt, the use of the word ‘victim’ at the commencement of an investigation is simply inaccurate and should cease.”Sir Richard Henriques
Furthermore, it leads inexorably to a condition of Confirmation Bias.
Confirmation bias is the tendency to search for, interpret, favour, and recall information in a way that confirms one’s pre-existing beliefs or hypotheses. It is a type of cognitive bias and a systematic error of inductive reasoning.” – Wikipedia
In other words, the police and the CPS are likely to be led down a path of searching for and finding only evidence which confirms their belief.
So let me return to my earlier question.
Q. What exactly was wrong with the treatment of complainants in the days before the ‘believe the victim’ policy?
A. The police took sides before any investigation had taken place.
If women were correct in thinking that they were disbelieved, then what was wrong was the fact that, before any investigation, a pre-existing prejudice against the complainant led to the police already siding with the accused.
It was the prejudice that was wrong, not which side they picked.
For the police now to ‘believe the victim’ (or rather, the complainant) before any investigation, which automatically means ‘disbelieve the accused’, is to make exactly the same mistake but having switched sides.
That was wrong before and it’s still wrong now.
It is not for the police to decide in advance, before a full, impartial investigation, who is telling the truth and who is not. It is their job to investigate the facts fully on all sides and attempt, through those facts, to discover who is telling the truth.
The Correct Course Of Action
What SHOULD have happened to correct the appalling situation which existed before was for the police to show respect for the people who made allegations; to treat them with the sensitivity that a genuine victim deserves (because they may well be one).
However, at that point, they must bear in mind that no crime has yet been proven and the suspect also deserves the respect due to someone who may be innocent; in which case, they are actually the victim. That, after all, is the basis of our justice system. A person is deemed innocent until proven guilty.
This applies whether the complainant or accused is female or male and whether the alleged offence is a contemporary one or a historical one.
Therefore, the police should have taken the allegations seriously and made a full, fair and even-handed investigation, exploring all avenues which may lead them to who is actually telling the truth.
If there is sufficient evidence to support the allegations, the case should be handed to the CPS who should also behave in a fair and even-handed way. They have a duty to prosecute only those cases where there is sufficient evidence to suggest a good chance of conviction and a continuing duty to monitor that situation.
(N.B. “a good chance of conviction” is not the same as “a good chance that the accused are guilty”, but more of that in another post),
If there is not sufficient evidence to prove guilt beyond reasonable doubt, the case should NOT proceed, no matter what the pressures are to do so.
The ‘victim-centric’ justice system that we have in 2022 shows that the pendulum has indeed swung much too far in favour of complainants, which is in conflict with the fundamental principle of the presumption of innocence at the very heart of our justice system.
All complainants should certainly be treated with sensitivity and their accounts taken seriously, but a full and fair investigation of the facts must nonetheless take place, with facts in favour of the accused given as much weight as those for the complainant.
Only if and when the facts point to the truthfulness of the allegations should a prosecution take place.
That is in accordance both with the fundamental principles of our justice system and with the stated principles of the Crown Prosecution Service.
If, on the other hand, the police find sufficient evidence to believe that the complainant has fabricated the allegations, they should be charged with attempting to pervert the course of justice. As the requirement for sufficient evidence would now be applicable, it should not deter genuine victims from reporting an assault.