Beyond Reasonable Doubt: a defence

By Sarah Fletcher

I finished reading Ollie Burrows’ reply to my initial article wondering if he had actually carefully read mine in the first place, or whether he merely wanted to flex his law degree to Palatinate readers. The few good criticisms of my initial article — notably, that sexual assault is not the only crime that lacks the material evidence to be framed as a ‘whodunits?’: manslaughter, anything involving self-defence, and some types of fraud have similar issues at the police investigation stage — were unfortunately buried in the fact he was responding at complete cross-purposes and through accusatory language.

Despite this, he still manages to blunder his legal understanding of the Universal Declaration of Human Rights and the European Convention of Human Rights. Article 6 states that one does not have the human right to be unquestionably believed post-acquittal: one has the human right to be regarded as not guilty by the state pre-conviction, which, as I mentioned in my initial article, does not equate to a right to be believed by other people. The HRA is a list of obligations on the state, not the individual. And — no matter how much sentimental value they seem to hold for Mr. Burrows— human rights are, in the end, legal concepts. As I said in my initial article — whether or not one believes these concepts should be extended beyond the courtroom is ones own prerogative. Mr. Burrows clearly believes this is the case, but implying it is legally mandated upon society is false.

He manages to miss the point again — from a legal perspective — when he writes: “If the act is proved to have happened then the defence of consent, or reasonable belief in consent, absolves the defendant of the act, but the burden of proof is on the defendant, it is a lower standard of proof, for obvious reasons, but it still exists”, but this is untrue: the burden of proof (a concept I am well aware of) is always on the prosecution to prove beyond reasonable doubt that the defendant is guilty. In cases where the crime is proved to have happened and the defence rests on proving reasonable belief in consent, it’s up to the defendant to voluntarily give evidence, but there’s no burden of proof on him. If he does give evidence then the jury would indeed need to accept he had that reasonable belief.

But the main area where he seems to ignore the crux of my initial article is that I have written nothing advocating criminal justice reform. My initial article was an exploration of how these cases are perceived by the public (in which he conveniently forgets that jury members are made up of the public as well and hence subject to the same biases and falters, no matter how many legal restraints we put upon them). Mr. Burrows admits sexual assault cases have low conviction rates because of the burden of proof. He appeals to Blackstone’s Formulation: that it is better to let ten guilty people go free than jail an innocent man — and I agree. But this means, by his own admission, that there are people who did commit the crime who are found not guilty, and the system is set up to defend the accused. He writes that “Sandra Paul is right – unsurprising for someone shortlisted for Solicitor Advocate of the year in the Law Society Excellence Awards. Louis Richardson was accused of rape, a court of law and a jury of his peers found this accusation to be ‘false’ by the standard of proof set by the court”. But my issue with Sandra Paul is her describing the false claim as a “fact” — not a “fact” from the court of law (which, as you admit, holds rape victims to a high burden of proof causing low convictions) but as a universal truth.

I talked to Julian Norman — a human rights barrister working in London — who said: “Unfortunately, it is precisely because sexual assault cases are under-convicted that an acquittal does not successfully clear doubt in people’s minds. If we were confident that the criminal justice system always achieves the right result then there would be no question of there being a cloud over the character of a person who had been acquitted. Improving outcomes is therefore desirable for both an innocent defendant and for the complainant”. This shows the binary thinking of “guilty/not guilty” — which the Scottish system manages to override by a verdict of “not proven” — is harmful for everyone involved. Perhaps if there were more faith in the system, an acquittal such as Louis Richardson’s would not hold such a damning prospect for future career opportunities.

When he speaks about the psychological effects a false claim can have on one man — something I have never denied would be psychologically harmful — I realise Mr. Burrows gives no equal time to consider the traumatic effects sexual violence — or even losing a court case — can have on a female victim. In fact, women are mysteriously silent throughout his entire article. He cites himself as ‘that guy who will defend OJ Simpson’, but in Burrows’ own defence of him and the court system, the most important facet of the case has been lost: that Nicole Brown was brutally murdered: violently sliced to the point of near decapitation. And, on a wider scale, that there are many women who will never reach the “burden of proof” needed but still live with trauma of sexual violence. If society is meant to totally accept an acquittal as an absolute value judgement of truth, are therapists supposed to take patients suffering from trauma due to sexual abuse with a grain of salt? Mandating total belief in the court on a societal level rather than a legal one places victims in a bell jar of silence.

You quote Alison Levitt’s words on false rape claims. I counter with Alison Saunders — the director of public prosecutions — who attempts to tackle juror bias as a way to increase conviction within the system: “Despite efforts to raise awareness, many people still believe a rapist is a man in a balaclava in a dark alley, and a victim is a woman who shows her fear through fight…That is very rarely the case – most rapists know their victim, many victims do not physically fight and the trauma of being raped will affect each victim differently.”

Ollie Burrows asks me weighty and accusative questions: do I reduce freedom from torture to a mere ‘legal concept’? To counter — as he defines rapists solely by their convictions — do you, Mr. Burrows, disbelieve the victims of Jimmy Savile? What about victims of sexual abuse within the Catholic church? The 40+ women accusing of Bill Cosby? You define a rapist as someone who has been convicted — so let’s work towards a world where that is synonymous with someone who factually commits rape. You create a false binary between total belief in the court and witch hunts against innocent men (something I also condemn), strawmanning my initial claim that we should extend the belief of ‘innocent until proven guilty’ to the accusers in question, and not posing the accused’s innocence as the victim’s perjury. The binary is not “increasing convictions vs. putting innocent men in jail”, but rather working within our system to tackle jury biases and encourage more women to come forward. You say “I hold rapists in as little regard as anybody else does, but I define a rapist as someone convicted of rape in the court of law”.

Luckily, because of the low convictions rates you know exist and seemed nonplussed about changing, you will not have to extend your alleged feelings of contempt very far.

Photograph: Brian Turner via Flickr

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