Onus of proof and sex crimes

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.