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.