False allegations and attrition

[tyr_13]

It isn't between 10 and 40%. It is about 8% on our best evidence. And the rates of allegations which get to court are very small. And the rates of convictions are very much smaller. The numbers of false allegations which get anywhere near the court are very small indeed. If you are not going to bother reading any of the evidence posted here; if you are not prepared to think about the equivalence you are trying to make; if you keep posting the same two farcical studies and ignoring the critiques of those, then how am I to believe you are honest? I am sorry tyr but this is just going round in circles. It appears that there is no possibility of moving forward and I think I will just have to accept that people want their war and they WILL have it

Did I miss where these studies were shown to be farcical? Besides, 8% is the number the FBI lists as ones that the complainant withdraws as saying it is false. That doesn't count ones that are just false that the complainant persists in. So if I eat pizza 8% of the time, I eat it rarely? Only false accusations that go to trial are counted?

You think I haven't read the evidence posted here? I've been reading a **** of a lot so forgive me for forgetting what was posted where and where I read it.

What war are you talking about?

But I guess screw me for keeping reading not only here, but other places. But hell, it isn't like this is a difficult and confusing subject or anything.

 

[PhantomWolf]

It is viewed the other way around: anonymity is to be avoided unless it is in the public interest. In general anonymous trials are (IMO) less assuredly fair than open ones. I am very surprised to be apparently the lone voice arguing this so far, and also surprised that you and others place the potential social exclusion of acquitted innocents above open justice and the public interest in justice. Is this just for rape, or for any criminal trial? And if just for rape, on what grounds?

Trial belongs in court but court procedings belong in the public domain.

I know that Gumboot covered this, but just in case it was missed. No one is suggesting that there are closed door trials (though I would note that many Sexual Assult cases in NZ ARE at least partially closed door, last time I was in Jury duty the case I was in the lottery for was a Sexual Assult case, and while I wasn't selected, we were told that we were unable to stay for the first part due to it being closed to the public), not that the defendant is anonymous in the trial, and not even that the media can't report on the trial. Merely that the media cannot name the defendant. Anything else would be perfectly fine to publish, just not the name. This isn't something that is unusual (at least in NZ) as we can often have trials where the defendant is given name superession right up until convection. Honestly I don't see this as a big deal.

 

[gumboot]

The last couple of pages are quite curious, I think. There are a number of strands though and I am trying to tease them out

In the first place those who assert that false allegations of rape ruin lives and are therefore very serious, are correct. However this is also true for anyone accused of a serious crime they did not commit. So what is the difference here? Well, underlying it there seems to be the idea that people are more often falsely accused of this crime than of others: the evidence does not seem to support that.

Posters have numerous times, in this thread, explained why being falsely accused of a sex crime is far worse than being falsely accused of other crimes.

Secondly there seems to be an assertion that the safeguards within the criminal justice system, worked out over years and relied on in every other kind of case, somehow fail uniquely in rape cases.

I don't think anyone has actually claimed there's an unusually high rate of false conviction in rape cases, have they? I certainly haven't.

The assertion is that it's wrong to remove some of those safeguards simply to gain more convictions, which is what many rape victim advocacy groups are calling for. Just the other day I read that the New Zealand government is looking at changing the rules of evidence for rape trials to make it easier to secure convictions.

In fact the rapist is very much more likely to escape prosecution and conviction than the perpetrator of other serious crimes. That this is known is perhaps reflected in the much lower confession rates for this.

This appears to be a self referencing argument. Alternatively the low confession rates could simply be because the majority of accused rapists don't consider what they did rape.

The assertion that the social stigma attaching to this kind of crime is greater than for others is probably true in the limited circumstances of violent stranger rape: but it is not clear to me that this is true for the more usual rape.

You yourself started a new thread on the very subject of the myth of the predator rapist. When most people hear "rapist" they think violent stranger brutally attacking a woman in an alley or a dark street, or breaking into her house. They don't think the more common scenario.

That's one of the very reasons a rape allegation carries such a stigma - because of distorted public perception of what constitutes most rape.

I see much repeated that the man accused of rape is assumed to be guilty and the woman who makes the allegation is automatically believed. This is not true and a great deal of evidence has been adduced to show that it is not true: yet it is repeated as if it has been established.

Except that evidence hasn't been shown at all. In fact the evidence presented is decidedly weak. It has focused on the attitudes of police, who are not the general public, and most certainly do not have an attitude towards crime that reflects the general populace, because unlike the general populace they daily confront the actual reality of crime rather than the myths and stereotypes pumped out by the media.

People are not stupid. They know that many rapists are acquitted and thus the lack of trust in justice applies here more than to other kinds of cases.

You really just keep reinforcing the point. "many rapists are acquitted". Can't you see what you're claiming with statements like that? You're presuming guilt for people acquitted of a crime. In your eyes they must be guilty, and it's a failure of the justice system that has allowed them to walk.

This is precisely the assumption of guilt that people like myself have been talking about.

You clearly display the very social dynamic we have been describing, and yet you sit there and claim it doesn't exist. You're proof it exists.

It is suggested that trial by media is not good. Again we are agreed. There used to be either a law or an agreement (not sure which) strongly upheld in this country whereby a case could not be reported on in any way which would prejudice a trial in advance of that trial. I have the impression this has changed, though I am not aware of why that is. It was a good principle though, and if the law has altered to vitiate it then I would like to see that changed back: if the press is merely less responsible than that, too, should change

I don't think the press should be required to make the call as to what may or may not harm a trial. Firstly the obligation is with the police not to disclose information. Secondly, the court is obligated to issue suppression orders to indicate to the press what is and is not appropriate to report.

What, I think, needs to happen, is that courts need to realise that in sex crime cases particularly, releasing the names of defendants and victims can have a very negative impact, and that the pre or during trial public interest in the identity of these people is not great enough to justify disclosing that information.

However the way to deal with that is not to suppress the identity of the accused. Francesca has already explained the dangers of that and I agree with her. The principle of "innocent till proved guilty" is still in place: it serves as great protection for the accused in every type of case including rape

It's in place in a legal sense, and it gives the accused legal protection. It does not exist in a social sense and it gives the accused no social protection. Courts need to appreciate that what happens in a courtroom has enormous ramifications beyond the walls of the court. People do not live in the artificial bubble of the court room where the law alone rules. They live in the real world, where prejudice and oppression is a daily occurrence.

Similar facts evidence often comes to light because the identity of the accused is not suppressed: and this is in itself a strong argument against overturning the principle of open justice.

I don't see how you can logically say this. If the accused has previously been charged with crimes the prosecution will know this, and can gather evidence from those previous trials to use in their case (assuming they are admissible). I fail to see how preventing the media from publicly disclosing the identity of the defendant during the trial would have any bearing on this.

I have not seen anyone say that sex with a drunken partner is always rape:

I have. People have said a drunk person is incapable of giving consent, and if they are incapable of giving consent, having sex with them is rape. That's pretty clear cut.

I do not see any evidence produced that many people who are drunk but capable of consent then change their mind the morning after and cry rape: it happens but if it is very common then there are a lot of brave people on this board: I suggest it is actually very rare or the "90%" mentioned as the figure of those who would be locked up would be very much lower. It is nonsense, and I am afraid I think that you all know it is.

It goes back to the false complaint argument. You refuse to accept that false complaints are common, despite evidence presented that they are.

I do not think the parallel with drunk driving laws in inappropriate, as was claimed.

The parallel is backwards. Drunk driving laws establish that a drunk person, regardless of how drunk they are is still 100% responsible for their decision making. Thus a drunk person who consents to sex is 100% responsible for making that decision.

Why should consent to sex be so very different?

The law doesn't prohibit drink driving because drunk people make poor decisions. It prohibits drink driving because drunk people drive poorly.

Drving while drunk is a poor decision that drunk people make every day, and the court doesn't allow their drunkeness to excuse their poor decision. You seem to want to treat sex differently. So perhaps you should answer your own question.

If drunkenness is not an accepted excuse for making a poor decision like driving a car while drunk why should it be accepted as an excuse for making a poor decision like having sex with someone?

Presumably you wouldn't excuse a rapist just because they were drunk, right?

It's simple. If you choose to get drunk, you know that you might make stupid decision that you will later regret. You therefore accept the consequences of those stupid decision, regardless of whether it is to drive home drunk, leap off a bridge, or have sex with your best friend.

 

[ddt]

In the limit, one could indefinitely delay every trial just in case even more "open-and-shut" evidence emerges. Sooner or later you need to actually engage the process. We just disagree where.

Of course, you have to weigh your options and how realistic it is you get new evidence. But to set the bar at only 50% seems ludicrous to me. That's like playing roulette.

In the UK the system has set the "hurdle" for which a rape case is eligible to go forward for trial, in full knowledge that the conviction rate as an outcome is lower. So by your previous comment it knowingly "wastes resources". But that is because it is in the public interest not to avoid the trial of rape simply due to its inherent difficulties. I agree with that.

It is enshrined in law what hurdle applies at what kind of cases? But why do you think that for a certain kind of cases, the hurdle should be different than in others?

You have no juries in a rape trial?

What's that, a jury? Seriously, juries hardly exist outside of the common law system. And I don't see why 12 laymen would do better than 3 experienced judges.

What you are saying is that it is not a good idea for the public to know the identity of someone that the state is trying for a criminal offence. Such a state of affairs would frighten me.

No, I'm saying it is not a good idea when his/her identity is disclosed in full for the whole nation to know in an easily accessible way. Those who want to spend their time on it, can still go to the courthouse to find it out.

In the first place those who assert that false allegations of rape ruin lives and are therefore very serious, are correct. However this is also true for anyone accused of a serious crime they did not commit. So what is the difference here? Well, underlying it there seems to be the idea that people are more often falsely accused of this crime than of others: the evidence does not seem to support that.

I don't necessarily think the incidence is higher, but that the level of ostracization is higher.

Secondly there seems to be an assertion that the safeguards within the criminal justice system, worked out over years and relied on in every other kind of case, somehow fail uniquely in rape cases. Yet the conviction rate is much lower than for other crimes, as it probably should be, given the problems inherent in this kind of crime.

Focusing only on the conviction rate gives an artificial low number, as Francesca pointed out: the threshold for going to court is set lower, so you get naturally a lower conviction rate.

You'd have to look at the whole chain from crime to police report to prosecution office to court room. The first step - which percentage of crimes is actually reported to the police - is guesstimation, but the rest can be dug up. I dug up some numbers from the Dutch statistics bureau, spread out over two tables.

First, the police investigation. In 2007, there were in total 1,214,503 crimes reported to the police, of which they considered after investigation 275,880 to be solved - which does not mean a conviction. The next row is about rape: 1,267 reported, 759 "solved" according to the police. The next is about sexual assault, and then follows "other sexual crimes" (which includes abuse of minors). Then one row for homicide, threat, and help with suicide. Then ("mishandeling") battery & assault. Then theft with violence. Then extortion. The last two are non-violent (*) crimes: simple theft, and vandalism. Thrown in to show there are other crimes where a lot less solving goes on: about 1/10 solved against roughly 2/3 for sex crimes and homicide.

(*) i.e., not violent against another person.

For the prosecution and court part, we turn to the second table. A lot of numbers here. The first row is again about all types of crimes. 272,655 crime reports ended up on the prosecutor's desk. Of those, he postponed 14,665 for insufficient evidence. 15,795 were postponed because of policy. 74,210 settled with a fine. In total, 122,275 cases ended their career at the prosecutor's office.

127,580 cases went to court. In 8,445 cases there was an acquittal. In 1100 cases, the verdict was guilty, but without punishment. In 116,720 cases, the verdict was guilty with punishment. That's 9.6% of all reported cases from table 1.

(you may notice the numbers don't add up. I left out some less interesting numbers here, but the numbers don't match with the previous table either - the prosecutor may categorize a case differently than the police did.)

Next row is rape. 850 cases came before the prosecutor; of those, 310 went to court and 230 were found guilty (with punishment). So we're at a conviction rate of 18% of all police reports from table 1.

Then comes sexual assault. 335 convictions with punishment, out of 2,192 police reports (15%). Other sexual crimes: 600 out of 1,971 (30%).

Then - here as separate categories - threat ("bedreiging") resp. homicide. Then battery ("mishandeling"); negligent homicide; theft with violence ("diefstal met geweld"); extortion; simple theft; and lastly, vandalism. Again compared to the initial number of police reports, the last two categories have a success rate (the combined numbers of prosecutor's settlements and court convictions) of around 5%.

That's quite a long exercise, but the point is that just looking at court conviction rates doesn't tell the whole story. The low British conviction rates are simply due to going (too/more) eagerly to court than in NL. The Dutch prosecutor also goes earlier to court in rape cases - success rate is in the 75-80% range compared to 90% in other cases.

So we have the outcome which we would expect: how does that demonstrate that the safeguards in place are ineffective? In fact the rapist is very much more likely to escape prosecution and conviction than the perpetrator of other serious crimes. That this is known is perhaps reflected in the much lower confession rates for this.

On a tangential note, why do courts still view confessions and testimonies as the ultimate proof? Confessions can easily be obtained by overzealous police, and memory is very fallible.

Well different jurisdictions have different ideas about what cases should be brought and it is clear that this is open for debate. The principle here is that a case should be brought if the state believes there is a 50% chance of conviction. That seems right to me. It is not for the state to bring a case where there is no evidence. But justice requires that where there is a case it should be properly tried: it is not good to say that cases should be almost certain of conviction before they are brought: that pre-empts the proper trial process and it puts the prosecuting authority in the position of the judge and/or jury: a separation which is essential to justice, IMO.

This touches directly on the difference between the (anglo-saxon) adversarial system and the (napoleonic) inquisitorial system. That's for another thread.

It is true that there is a balance to be struck somewhere, but a very high conviction rate does not demonstrate a better system: it demonstrates a system loaded against the victim, since many cases will be dropped though there is evidence the crime was committed: or loaded against the defendant since pressure will be brought to achieve it through confession or some other means

Not necessarily. In every step of the process, a decision must be made which cases go on to the next stage. The high conviction rate is just one stage in that.

 

[tyr_13]

It isn't between 10 and 40%. It is about 8% on our best evidence. And the rates of allegations which get to court are very small. And the rates of convictions are very much smaller. The numbers of false allegations which get anywhere near the court are very small indeed. If you are not going to bother reading any of the evidence posted here; if you are not prepared to think about the equivalence you are trying to make; if you keep posting the same two farcical studies and ignoring the critiques of those, then how am I to believe you are honest? I am sorry tyr but this is just going round in circles. It appears that there is no possibility of moving forward and I think I will just have to accept that people want their war and they WILL have it

I just figured out why this angered me so much. I thought I was on your side. I assumed that there was a rational, well reasoned response to this study, and that site, and that if I posted them up here those would be forthcoming.

How can you assume that because I missed something that argued against your point that I had been ignoring your evidence? What the hell. Why did you accuse me of being dishonest? That's so insulting.

 

[Fiona]

Yes I think we both got angry in that exchange:me because that study has been addressed already and then was raised again; and again: and you because you seem to have missed all of that. So I apologise for my part in that.


On a separate note, I have come to the conclusion that this whole thing is impossible of resolution because we have been approaching it all wrong. So I make the following modest proposal:

It is perfectly clear that the existing law is failing to secure justice for the victims of rape. And at the same time it is obvious that those accused have no recourse because the damage to them does not arise from the legal system at all; but rather from social stigma. It seems to me that we can sort this out to the benefit of both.

The legal system as it stands is assumed to be not too bad at dealing with the less usual cases of violent stranger rape: so let us leave it to deal with those cases.

For the more common instances of rape I suggest that we leave any idea of laying a complaint completely out of the question. Instead I propose that the person who is raped make sure to tell everyone in their own and in the perpetrator's social circle all about it. Naturally the victim will automatically be believed. This has a great advantage for the victim because it will avoid the pretence of disbelief which the legal system seems to find necessary to impose, and all the accompanying humiliation. It will also solve the problems of the intrinsic difficulty of meeting the evidential standards required in our respective systems, and which lead to so many false acquittals. Failure to report will be less likely and so more instances of rape will come to light as well. It is a mystery to me why victims have not realised this very simple solution to their problem and why this is not already standard practice. But there you are

This will not have any detrimental effect on the accused because we are told that that person's life is already ruined by virtue of the accusation, and so there will be no change there. But. in this new system, I propose a further change which will improve the position of anyone falsely accused from what it is now. I suggest that we introduce a new criminal offence akin to the civil matters of defamation and slander. This will give the victim of a false accusation a legal redress which is currently lacking: all he or she needs to do is to bring a charge against the person making the accusation, and then prove beyond reasonable doubt that he or she did not rape that person.

I can see there might be difficulties in securing a conviction: it is possible that many cases would be thrown out for lack of evidence before they even reached the court: and that the conviction rate might be as low as 8%. But with good practice and careful preparation we might get it up as high as 14%. And in any case nobody has lost anything and the chance of redress is a considerable improvement

 

[MattC]

I just figured out why this angered me so much. I thought I was on your side. I assumed that there was a rational, well reasoned response to this study, and that site, and that if I posted them up here those would be forthcoming.

I apologize for taking so long to offer one.

The study is very specific in noting its own shortcomings, and I must confess that it seems you have not taken these parts into account when posting the study as evidence to support your claims. Further, you seem to be doing precisely that which the study's authors caution strongly against - generalizing their findings.

Most problematic is the question of the generalizability of these findings from a single police agency handling a relatively small number of cases. Certainly our intent is not to suggest that the 41% incidence found here be extrapolated to other populations, particularly in light of our ignorance regarding the structural variables that might be influencing such behavior and which could also be responsible for wide variations among cities.

In addition, the study's authors are very clear and lucid upon the difficulties faced by researchers (such as myself) in generalizing results due to the stark differences in police agency policy regarding rape claims. The authors of the study explicitly mention this particular difficulty:

But a far greater obstacle to obtaining "true" incidence figures, especially for larger cities, would be the extraordinary variations in police agency policies; variations so diverse, in fact, that some police agencies cannot find a single rape complaint with merit, where others cannot find a single rape complaint without merit. Similarly, some police agencies report all of their unfounded rape cases to be due to false allegation, while other agencies report none of their unfounded declarations to be based on false allegation.

It seems then that it would be very very difficult to employ the 41% figure they obtained from this limited analysis into any other population not sharing the same demographics, which would seem difficult to find given the author's particular statement at the beginning of the paper:

This city was targeted for study because it offered an almost model laboratory for studying false rape allegations. First, its policy agency is not inundated with serious felony cases and, therefore, has the freedom and the motivation to record and thoroughly pursue all rape complaints. In fact, agency policy forbids police officers to use their discretion in deciding whether to officially acknowledge a rape complaint, regardless of how suspect the complaint may be. Second, the declaration of a false allegation follows a highly institutionalized procedure. The investigation of all rape complaints always involves a serious offer to polygraph the complainants and suspects. Additionally, for a declaration of false charge to be made, the complainant must admit that no rape had occurred. She is the sole agent who can say that the rape charge is false... In short, these cases are only declared false because the complainant admitted they are false.

Bolding mine for particular emphasis. I therefore feel strongly enabled to question any act of generalizing these results outside of the specific environment the study authors found (I may say that it seems their likening to it as "an almost perfect laboratory in which to study false rape allegations" seems a very accurate one.)

This does not mean that the study should be discounted, however - merely that generalizing the results it employs will run into numerous difficulties that cannot be easily answered or waved away as irrelevant. However, this is not to say that the study is completely useless.

In fact, I was driven to bring this study to the attention of several professors of mine actively engaged in projects with the local police department. The study notes often how polygraphs were used to test both complainant and suspect, the results it has acquired as enumerated here and the particularly low cost of training personnel to use lie detectors seems to merit the further use of this approach.

Perhaps the safest case one could make from this study is that false rape accusations are usually very easy to identify if resources are available to examine them. Sadly, however, this is often not the case due to the shifting nature of police resources.

~ Matt

 

[gumboot]

Perhaps the safest case one could make from this study is that false rape accusations are usually very easy to identify if resources are available to examine them. Sadly, however, this is often not the case due to the shifting nature of police resources.

Not really. In the study an allegation was only considered false if the complainant outright admitted it was false. All the study does is confirms that it's really easy to identify a false complaint if the complainant admits the complaint is false. Great. Hopefully soon someone can give us a shocking study revealing that water is wet.

We have to assume the rate of admitted false allegations is an absolute minimum rate of false allegation, because it stands to reason that some people who make false allegations will not admit it.

And it probably needs to be pointed out that the malicious fabricated complaint is as big a myth as the predator rapist.

If we accept that the majority of rapes involve people who already know each other and have some sort of existing relationship, and if we accept that the most common defense in rape cases is that consent was given, can we not also conclude that the majority of any existing false allegations would be instances in which the complainant genuinely believes they were raped, but was not?

I've mentioned a recent NZ case where a man accused of rape was acquitted because the victim consented while drunk. That ruling makes the case a false complaint. No rape occurred, yet the complainant claims a rape did occur.

Now, I have no reason to doubt the complainant believe they had been raped, and I have no reason to doubt they were greatly traumatised by the experience. But that doesn't change the fact that their complaint was false.

The false complaints that get media coverage, and the false complaints counted in that study, are willful false complaints, where the complainant knew they were lying - the sort of false complaint that results in the complainant getting charged. The majority of false complaints aren't off this nature. There's a reason the law specifies that you can only be charged with a false complaint if you knowingly lodge a false complaint.

See how grey and murky this whole topic is?

 

[MattC]

Not really. In the study an allegation was only considered false if the complainant outright admitted it was false. All the study does is confirms that it's really easy to identify a false complaint if the complainant admits the complaint is false. Great. Hopefully soon someone can give us a shocking study revealing that water is wet.

I find it nowhere specifically stated in the study that any recantation was given of the complainant's own free will or without the intervention of some police resource. Ergo, resources were important in the identification of false allegations.

~ Matt

 

[gumboot]

I find it nowhere specifically stated in the study that any recantation was given of the complainant's own free will or without the intervention of some police resource. Ergo, resources were important in the identification of false allegations.

Well, the recantations were obviously given of the complainant's own free will because the police cannot make someone say anything. The study states:

First, with very few exceptions, these complainants were
suspect at the time of the complaint or within a day or two
after charging. These recantations did not follow prolonged
periods of investigation and interrogation that would
constitute anything approximating a second assault.

But you do raise a fair and proper point that police investigation did uncover these false allegations, however minimal that investigation was. My argument is, I suppose, that there was nothing particularly in depth about these police investigations - most seem to have recanted almost immediately.

 

[LashL]

To get back to the topic, there is one thing that deeply concerns me about many of the proposed and implemented changes to how rape is treated, and that is the abolition of mens rea. Mens Rea is a Latin phrase meaning "Guilty Mind" and is one of the corner stones of the western legal system. For at least 800 years, in order for a person to be liable for a crime, it must be proven that mens rea existed. There are different levels of mens rea from direct intention - the person knew what the outcome of their actions would be and acted on the desire to produce that outcome - to criminal negligence - a reasonable person should have been aware of the likely outcome of their actions.

In the case of rape, this is problematic because the action itself - having sex - is not a crime. It is only absence of consent which makes the act a crime. Therefore, in order to establish mens rea you have to, at a minimum, establish that a reasonable person would have been aware there was probably no consent.

Many of the people pushing for changes to rape law want to see that approach scrapped - it has already happened in the UK where a defendant is required to prove what steps they took to secure consent.

This essentially argues that rape can occur without mens rea which rejects almost a thousand years of legal precedent (and probably over a thousand).

What is most worrying is that this is not based on anything more than a desire to see more rape convictions, which is itself built on a faulty and unsupported assumption that there should be more rape convictions. That's not how the law should work.

With all due respect, what you've written above is wrong. The mens rea of sexual assault offences has not been abolished at all. That you personally do not understand the various criteria for establishing mens rea is not in any way, shape or form evidence that it has been abolished. It has not been. You are completely wrong when you assert that rape convictions can be procurred without the requisite mens rea being proven. In fact, it has to be proven beyond a reasonable doubt, as does the actus reus (and every single element of both the actus reus and the mens rea of the offence).

As a corollory: Two people punching either other out in a consensual fight does not = assault for purposes of criminal law (except in certain circumstances that are not relevant to this post or this discussion). Does it "worry" you that two people can punch each other out and that it isn't a crime at all unless one of them doesn't consent? Are you "deeply concerned" that the law requires evidence of such consent? Are you "most worried" that the law permitting one of the parties to the fight to claim that he or she did not consent is not based on anything but a desire to see more assault convictions? Do you think that the rationale for same is "itself built on a faulty and unsupported assumption that there should be more assault convictions"?

 

[gumboot]

With all due respect, what you've written above is wrong. The mens rea of sexual assault offences has not been abolished at all.

Okay well technically what I was referring to was an assumption of mens rea unless the defendant proves otherwise, but the end result is the same.

However you missed this post:

UK case law has set a precedent that a defendant must prove what steps they took to acquire consent. This is what I am referring to.

ETA. Never mind... they appear to be proposed changes, not yet implemented. I had my wires crossed.

 

[Francesca R]

Okay well technically what I was referring to was an assumption of mens rea unless the defendant proves otherwise, but the end result is the same.

However you missed this post:

I almost missed it too, but thanks. So let's confirm for the thread that mens rea has not been abolished in the UK for the trial of sexual offences and there is absolutely no overturning of innocence until guilt is proven.

 

[gumboot]

I almost missed it too, but thanks. So let's confirm for the thread that mens rea has not been abolished in the UK for the trial of sexual offences and there is absolutely no overturning of innocence until guilt is proven.

Well it was an edit to a post, so you probably read the post before I amended it.

Yus, we are in agreement.

 

[Ivor the Engineer]

Gumboot,

With respect to consent and alcohol intoxication, do you think a physician should or could rely on the consent of a drunk patient before carrying out an invasive medical procedure on the patient if the procedure is not essential for the patient's well-being?

 

[gumboot]

Gumboot,

With respect to consent and alcohol intoxication, do you think a physician should or could rely on the consent of a drunk patient before carrying out an invasive medical procedure on the patient if the procedure is not essential for the patient's well-being?

No. But neither do I think a doctor performing an invasive medical procedure on a person is anywhere remotely similar to two persons mutually agreeing to have sex together.

 

[Francesca R]

I haven't suggested anonymous defendants or closed door trials. I said there should be name suppression. Name suppression does not constitute a secret trial.

No one is suggesting that there are closed door trials (though I would note that many Sexual Assult cases in NZ ARE at least partially closed door, last time I was in Jury duty the case I was in the lottery for was a Sexual Assult case, and while I wasn't selected, we were told that we were unable to stay for the first part due to it being closed to the public), not that the defendant is anonymous in the trial, and not even that the media can't report on the trial. Merely that the media cannot name the defendant. Anything else would be perfectly fine to publish, just not the name. This isn't something that is unusual (at least in NZ) as we can often have trials where the defendant is given name superession right up until convection. Honestly I don't see this as a big deal.

Suppressing the name of the defendant in a trial is a movement away from open justice. It has been pointed out that this can act against justice in cases of similar evidence, in which example it would be contrary to public interest to suppress names. It has also been pointed out that the naming of someone charged with an offence can be instrumental in bringing forward additional reports from other victims. That is in the public interest too. Both of these things would be lost with defendant name suppression. I assume you both think that they are of sufficiently low value relative to the privacy of a defendant that they can be dispensed with. As you know I disagree.

I can appreciate the idea that public knowledge of defendant identity--in any criminal case--represents a loss of privacy for the individual and if the case is a rape case and the defendant is acquitted then the effects can be very damaging. And a reasonably wide body of opinion thinks that this does justify suppression of names. In fact when the UK Sexual Offences Bill was passing through the House of Lords, it did contain an amendment (Sexual Offences Bill [HL] Amendment No. 14) which would re-grant defendant anonymity. The Lords narrowly voted in favour of this (HL debate 2 June 2003) and the points that you make were discussed extensively. The government rejected anonymity after the point of charging with the offence.(See page 22 "E. Anonymity").

I don't agree with suppressing defendant names during a trial, for the reasons already given. Name suppression of the complainant is not practised for individual privacy reasons so much as public interest reasons (even fewer reports of the crime of rape would come forward if the name of the complainant was publicised, this is not in the public's interest). No such argument applies to suppressing the name of the accused party. There is also an argument (see links) against only suppressing the names of rape defendants but not doing the same for other criminal offences--which is that it may be taken to imply that there is a greater presumption of doubt about the credibility of the prosecution in rape cases than there is in other criminal prosecutions, and this could also deter genuine reports. The public interest is served by encouraging victims of crime to use the system, and by court proceedings and the identities of defendants being known as a trial is taking place.

The problems of social exclusion of acquitted defendants--for rape and potentially any crime--are real and not to be ignored. My position is however that these should not be handled by the legal system itself by departing further from open justice. I think you have seized on an expedient way to handle the problem, but regrettably it is the wrong one.

 

[Ivor the Engineer]

No. But neither do I think a doctor performing an invasive medical procedure on a person is anywhere remotely similar to two persons mutually agreeing to have sex together.

How do you think the two situations are significantly different as far as ensuring informed consent can be and has been obtained?

 

[Professor Yaffle]

I posted something about that 40% fallse allegations figure, but it might have been on one of he other threads.

ETA: Found it:
http://www.internationalskeptics.co...234127&highlight=false+allegation#post4234127

 

[gumboot]

It has been pointed out that this can act against justice in cases of similar evidence, in which example it would be contrary to public interest to suppress names.

It has already been pointed out that suppressing the name of the defendant does not affect similar evidence because the prosecution and the court know the identity of the defendant and so can bring up similar evidence.

Please explain how suppressing the name of the defendant could possible interfere with the use of similar evidence.

It has also been pointed out that the naming of someone charged with an offense can be instrumental in bringing forward additional reports from other victims.

Once the trial is over they can be named, and other victims can come forward then. People coming forward during the trial with their own allegations could prejudice the case before the courts.

One of the major problems with the child daycare cases was how appallingly the authorities handled the investigations, notifying all parents that accusations had been made against specific people, and asking about further accusations. This resulted in an influx of additional false accusations.

At worst, the coming forward of other potential victims would be delayed, not lost.

I can appreciate the idea that public knowledge of defendant identity--in any criminal case--represents a loss of privacy for the individual and if the case is a rape case and the defendant is acquitted then the effects can be very damaging.

Not only that, but if media interest in the case is strong enough it can result in the judge dismissing the case due to the inability to form an impartial jury. I am sure you'll agree that is not in the public's interest.

Name suppression of the complainant is not practised for individual privacy reasons so much as public interest reasons (even fewer reports of the crime of rape would come forward if the name of the complainant was publicised, this is not in the public's interest).

Actually the primary reason the name of victims is suppressed in New Zealand courts (and it happens very, very often) is to protect the privacy of the individual, not for the public interest. The courts rule that the victim's individual right to privacy outweighs the public interest in their identity. Name suppression is something that the court offers to a victim, or alternatively something that the victim requests. Were it genuinely about the public interest in having victims come forward, the courts would issue name suppression as a matter of course, whether the victim wanted it or not.

Of course you have to appreciate that New Zealand has a much stronger commitment to the right to individual privacy than most countries around the world, so this may have something to do with it. The Privacy Act is a very robust and uncompromising piece of legislation (some would in fact argue that it is too uncompromising).

For what it's worth, the New Zealand Law Commission has recommended that all accused have automatic name suppression until such time as the totality of the case against them has been presented to the court. They first recommended this in 1977, at which time the Government of the Day rejected their advice and instead decided to apply name suppression to everyone except those convicted of crimes. This was met with rather vocal protest from many corners of society (understandably) and the Government dropped the matter entirely.