Onus of proof and sex crimes

Innocent until proven guilty is a very noble principle which sustains our modern concept of justice. It constitutes an invincible barrier of legal protection for the innocent but, alas, also for the guilty.

It is a highly regrettable and unacceptable consequence of this principle that the worst crimes in terms of severity, frequency and lasting effects on victims escape, all too often, through the gaping holes of the ill-conceived and grossly inefficient net of justice. This includes sex-related crimes such as rape, sexual assault, incest and paedophilia, which are permanent features of all human societies, deeply imbedded in the social structures at all levels and penetrating the inner circles of the family in epidemic proportions.

The sacrosanct principle of presumption of innocence is an effective means of guaranteeing legal immunity to sex offenders and denying justice to the millions of victims it was designed to protect. In its present form justice is counter-productive. It achieves exactly the opposite result from that for which it was intended. Instead of preventing and punishing crime it encourages and facilitates it. It is headed in the wrong direction.

A Home Office Research study in the UK in 2005 highlighted the constant decline in the conviction rate for reported rape cases and noted that the government pledged to address what it termed a "justice gap". However, from what was then reported to be an "all time low" of 5.6% in 2002, the rape conviction rate in the UK fell even further to 2.6% in 2013. In Italy a 2006 National Statistic Institute survey found that 91,6% of rapes were not reported to the police. The Australian Women's Safety Survey conducted by the Bureau of Statistics in 1996 found that only 15% of sexual assaults were reported to the police. In the USA, according to the Rape Abuse & Incest National Network (RAINN), 60% of sexual assaults are not reported to police and 15 of 16 rapists (94%) never spend a day in jail.

The nature and circumstances of sex-related crimes relegate them in their large majority to zones of non-justice where they remain invisible, unrecorded and unattended. Nobody wants to know about them. Few are even prepared to admit the probability of their existence. Only a small minority of victims have the good fortune or courage to gain possession of one of the keys that grants access to justice.

Sex crimes are usually perpetrated in the intimacy and tranquility of the homes of either the victim or the aggressor at a moment when they are alone together, with no witnesses and no risk of them being disturbed. They are often members of the same family, more or less closely related, or friends or acquaintances. In most cases the victim and the aggressor know each other personally.

Unlike most other crimes, sexual aggression penetrates deep into the intimacy of its victim both physically and morally creating severe psychic trauma. It is an internal wound which never completely heals, a permanent stigma. The violation of a person's intimacy is a violation of the person's integrity and identity as a unique individual.

The perverse effect of the presumption of innocence in sex-related crimes is usually due to the lack of material evidence or the impossibility to prove that the victim had not given her consent. Any doubt is to the benefit of the offender. The victim is presumed to be lying.

Not all sex crimes are committed with the use of physical force or violence. In some cases psychological coercion is the "modus operandi". In others, particularly in the case of very young children, it is a long and patient exercise whereby the aggressor abuses his position of influence and authority in order to plant the seeds of desire in his victim, progressively bringing it to fruition until the victim finally does whatever it is the aggressor wants him or her to do, without having to take the slightest initiative himself. There is no violence or physical force, nor is there any evidence of psychological coercion. The victim is persuaded that it is she or he who is the depraved one and the sole person responsible for whatever occurred, the aggressor being the victim. It is the duty of society to protect its children from vicious predators of this nature.

According to the latest available statistics of the United Nations, the proportion of women experiencing sexual violence at least once in their lifetime ranges from a lowest of 5% in Azerbaijan to a highest of 45% in Mexico. In Australia the proportion is 35%. In the UK the National Society for the Prevention of Cruelty to Children (NSPCC) estimates that 11% of boys and 21% of girls aged less than 16 are victims of sexual abuse during childhood. In the USA the Rape Abuse & Incest National Network (RAINN) indicates that someone in the US is sexually assaulted every two minutes and 44% of victims are less than 18 years old,

Women and children have always been the victims of male violence. Assaulting wives and children, including sexually, has long been tolerated by society. Dominant males in many animal species treat their females and offspring as property. Behavioural patterns of large portions of human society are not much more evolved. Under English Common Law, prior to Enlightenment, children had the legal status of property of their father or, for some, property of the State.

Presumption of innocence

It is unclear as to who was the first to have expressed the opinion that it is better to let the crime of a guilty person go unpunished than to condemn the innocent. Somebody suggested that it has been handed down to us from Roman law which dates from the "Law of the twelve Tables" around 450 BC. François Quintard-Morénas, writing on "The presumption of Innocence in the French and American Traditions" in "The American Journal of Comparative Law" (2010),traces it back even further, to one of the oldest written codes of law, the Babylonian "Code of Hammurabi" (1792-1750 B.C.).

It was William Garrow, an English barrister known for his aggressive style of cross-examination and considered the godfather of advocacy, who was accredited in the year 1783 with having introduced the phrase "presumed innocent until proven guilty".

Commenting on the doctrine in "A Treatise on Judicial Evidence" which he published in 1825 the English philosopher and jurist, Jeremy Bentham, wrote (Book VI, Chapter II, p. 198):

At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten, a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused to be condemned, unless the evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished.

Bentham's premonition has proven to be true beyond all imagination. The scales of justice are so heavily weighted in favourof the guilty that the vast majority of sex offenders are never punished.

Not surprisingly, Bentham clearly takes the opposite position to the reigning doctrine (p.194):

Between Plaintiff and Defendant, the presumption ought to be in favourof the former, to the prejudice of the latter. The probability in favourof the former, because he voluntarily submits his right to the decision of justice; but the defendant appears in spite of himself. The case in which it is the interest of the plaintiff to litigate in opposition to his own conviction, must always be rare …

Though this may be seen as a radical departure from the sacrosanct principle of presumption of innocence, it is not quite as revolutionary as it may first appear. A number of jurists and historians affirm that the Anglo-Saxon and Latin traditions of law and justice have not always observed strict respect of the principle of the presumption of innocence.

Bruce Smith, co-director of the Illinois Legal History Program at the University of Illinois College of Law, indicates that many English criminal defendants in the late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt designed to combat various forms of misappropriation. Under these statutes, persons detected in possession of goods such as metal, rope, textile materials, or wood, who failed to "account" adequately for their possession, could be convicted by magistrates of misdemeanours.

Smith also points out that in 2001, the House of Lords considered the case of Regina v. Lambert, an appeal by a defendant convicted of "intent to supply" cocaine under the Misuse of Drugs Act 1971. The defendant, who had been detected with a bag of cocaine in his car, was convicted of drug trafficking, after he failed to prove that he did not know that the bag in his possession contained a controlled substance. On appeal, Lambert argued unsuccessfully that the Misuse of Drugs Act, by requiring a suspect to prove "lack of knowledge," violated article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

Smith adds that "in a ringing dissent", Lord Steyn, who is currently a life peer (judicial) in the House of Lords, having stepped down as a Law Lord in 2005, observed that nearly 40 percent of indictable offenses in England contain some type of statutory presumption against the defendant. Reflecting on these figures, he sharply criticized Parliament for the "arbitrary and indiscriminate manner" in which it "made inroads on the basic presumption of innocence".

Though Lord Steyn's criticisms may well have been justified, the 40 percent of indictable offenses he was referring to did not include sex-related offenses for which the overwhelming majority of perpetrators continue to enjoy judicial immunity by application of the principle "presumed innocent until proven guilty".

Justice should be brought back to the drawing board, re-examined and re-designed by a team of competent jurists and others so that it may deal efficiently with sex crimes. There has to be a major improvement in its performance. The non-justice zones must be seriously reduced if not totally eliminated. Serious consideration should be given to the adoption of Bentham's recommendation to transfer the burden of proof from the plaintiff to the defendant, at least in the case of children under the age of the legal majority who are easy prey and the prime target of sex offenders.

In addition, the statutory time limits for instituting legal actionshould be abrogated in respect of sex crimes involving children. The fact that perpetrators of child abuse have the right to dismiss court action because it is time-barred is a gross injustice. As Dr Ben Mathews, a lecturer of the School of Law, Queensland University of Technology, pointed out in his article "Limitation periods and child sexual abuse cases: law, psychology, time and justice", the adult survivor of child sexual abuse is rarely capable, psychologically, of "venturing into legal territory" until well into his or her 20s, 30s or even 40s.

If such radical reforms as reversal of the onus of proof from the plaintiff to the defendant together with the abrogation of the statutory time limits for instituting legal action were to be implemented, the suppression of this criminal outlet for libidinous energy would be bound to produce collateral damage elsewhere within the melting pot of society. That would be a problem for society as a whole to address, not just the judiciary. Society has demonstrated in the past its natural capacity to pacify and canalize energies in the aftermath of much more massive and terrible human dramas than that which would result from placing a tourniquet on the libido of sex offenders.