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End
Miscarriages
Of
Justice for the
Innocent

Has the Sex Offence pendulum swung too far?

In the 1980s, a woman was sexually assaulted – an attempted rape. 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?

There were, in fact, a number of reasons, but one was that the Police had a very bad reputation concerning the way that women who reported such things were treated by them.

The perception was not only that they were ‘disbelieved’ (make a note of that word – it’s important later on), but that there would be little, if any, sympathy. 

She believed 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. And they were right.

This might seem self-evident but, in order to prevent prejudice creeping into the argument,  we have to take a step back and ask what may seem like a strange question –

If that situation was wrong, what exactly was wrong about it?

I’ll give my answer to that question a little later but, for now, let’s move on.

Women’s groups campaigned against this treatment and eventually the justice system listened and responded – and, I believe, made a big mistake.

A similar trend was happening in the United States and, gradually, the self-described ‘victims’ became a powerful minority group.

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 2 most important principles of a just legal system].

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.

What exactly was wrong with the treatment of women/complainants in the days before the pendulum swung in their favour?

I believe there were two things wrong:

  1. The Police took sides before any investigation had taken place.

The word I said you should note above was ‘disbelieved’ and this is an important distinction – it’s not that the Police did not actively ‘believe’ the women, it is that the women thought they ‘disbelieved’ them.

What should the Police have done? Believed the women? If so, why? Because they are women? Because complainants don’t lie? We know for a fact that some do. That has been proven beyond any doubt, reasonable or otherwise.

Any rational argument has to be more abstract and less personal than that.

If the women were correct in thinking that they were disbelieved, then what was wrong was the fact that the Police automatically ‘disbelieved’ one side – before any investigation.

Back then, that meant the complainants.

But for the Police now to ‘believe the victim’ (or rather, the complainant) before any investigation, which automatically means ‘disbelieve the accused’, is to do exactly the same thing.  

By following that instruction, the police are making exactly the SAME MISTAKE – all they have done is swapped sides. That was wrong before and it’s still wrong now.

It is not for the Police to decide in advance who is telling the truth and who is not. It is their job to investigate the facts fully and attempt, through those facts, to discover who is telling the truth.

  1. The complainants were not treated with respect

This is the 2nd thing that was wrong. And what it demonstrates is an example of just the kind of confirmation bias I referred to above. If you disbelieve someone, you are very likely to behave as if you believe they are telling lies and that shows up as a lack of respect.

Again, back then, that lack of respect was for the complainant. Today, the assumption of the guilt of the accused, the automatic consequence of believing the accuser, shows up as a lack of respect for the suspect. And that inevitably has repercussions for the fairness and completeness of any investigation.

An example might be that witnesses supporting the complainant are interviewed, while those supporting the accused are not. How can anyone receive a fair trial in such circumstances?

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 compassion that a genuine victim deserves (because they may well be one). In that sense – and that sense alone – they may permit the assumption that the complainants may be telling the truth. 
  • However, at that point, no crime has been proven and the alleged suspect also deserves the respect of a person who may be innocent. That, after all, is the basis of our justice system. A person is deemed innocent until proven guilty.
  • This applies whether the complainant is a 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.
  • 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.

A Full Investigation

The new DPP, Max Hill, has said that, in future, in the interest of such a full and fair investigation, that complainants must expect to be asked to hand over devices such as mobile phones. 

N.B. Contrary to melodramatic claims from certain quarters, their phones will not be ‘seized’ as those of the accused often are. They will be asked to hand them over, the data will be extracted and the items returned to the owner. (This does NOT happen for the suspect).
The complainant can refuse but must expect that it is more difficult to prosecute someone if you refuse to co-operate in assembling potentially relevant information.

Some defenders of women’s rights have complained at this suggestion, saying it adds further distress to the ‘victim’. Well, as we have now shown, at that point, whether they are a victim or not has not been ascertained but if they want justice, they must be prepared to co-operate with the investigation.

Some complaining of this policy have termed the request ‘digital rape’. Considering that many  complainants are claiming to be the victims of actual rape, I find this to be a gross and shocking devaluation of the actual offence. Even as a man I can say that being asked for your phone and being raped should not be compared.

Example Comparison

For an example, let us compare this to a murder investigation. Let us assume that a man has been killed in his home and his apparently distressed wife reports the murder to the Police and accuses the man next door of being the murderer.

Should the Police simply believe the wife, and arrest and prosecute the neighbour (who protests his innocence)?

Certainly, the Police should act with compassion and respect for the wife who, of course, may well be the devastated wife telling the truth. 

But does that mean they should not enter the house and look for evidence which may either corroborate or disprove the wife’s account?  With the knowledge that many murders are committed by apparently grieving spouses, does it mean that they should not dare to ask where she was at the time of her husband’s death in case they might upset her?

In the event of such a serious crime which is known to have happened (unlike a reported sexual assault), the Police will, without question, enter the house and look for evidence in any case and the wife would have no say in the matter. 

Police and CPS could not be expected to mount a realistic prosecution without having carried out such work. And nobody would argue that, in spite of further upset to the grieving wife, that they should not do so. Few people would have much sympathy for the wife if she resisted the Police entering the house or take her fingerprints. 

It would be correctly assumed that any innocent spouse would do whatever necessary in co-operating with the Police in order to find evidence to prosecute the culprit and rule herself out of the potential suspects, even when that means a degree of further upset and inconvenience.

The truth is that, among that evidence, they might find that, in fact, it was the wife who herself committed the murder. And if that were proven she would rightly be prosecuted for the crime. No-one would seriously suggest that she should not be.

And yet it has been proposed by women’s groups that, in the case of sexual allegations, if data is found on a complainant’s phone which shows she was lying, that she should NOT be prosecuted for maliciously attempting to wreck someone’s life, simply on the basis that it might stop other victims coming forward. 

That makes no sense. Would that prosecution of a woman who murdered her husband prevent other innocent women from reporting the murder of their husband? Of course it would not.

Similarly, if a complainant (male or female) makes a sexual allegation towards another person which is found, after investigation to be false, they should of course be prosecuted. It makes no sense to suggest that genuine victims, who have nothing to fear, would be put off by that.

False allegations destroy lives and constitute a very serious crime. Not to prosecute such a crime would be both unfair and unique in the justice system. No other crime which destroys people’s lives is so overlooked. Furthermore, false accusations make it much harder for the genuine victims to get justice. After the genuine sex offender, false accusers are the greatest enemies of genuine victims.

Conclusion

I believe that the pendulum has indeed swung much too far in favour of complainants, which has conflicted with the fundamental principle of the presumption of innocence at the very heart of our justice system.

All complainants should certainly be treated with compassion and their accounts taken seriously, but a full and fair investigation of the facts must nonetheless take place and only if and when the facts point to the truthfulness of the allegations should a protection 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.

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