Guilty until proven innocent

09/07/2014

Labour wants to end the presumption of innocence in rape cases:

The Labour Party’s plan to reform the criminal justice system would mean that the accused in a rape case would have to prove consent to be found innocent — a change it acknowledges as a monumental shift.

But Labour’s justice spokesman Andrew Little said the current system is broken and in need of a major shake-up. The party favours an inquisitorial system, where a judge interviewed the alleged victim after conferring with prosecution and defence lawyers.

The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual. 

“The Crown has to prove more than just sex; the issue of consent has to be raised by the Crown, they have to prove the identity of the offender. They would have to bear that burden of proof before a switch to the defence to prove consent,” Mr Little said. . .

He said the issue of proof would only apply where allegations of rape had been raised.

“It is pretty radical thing to say that ‘all sex is rape’ unless you prove consent. The reality is that in 99.9 per cent of cases, no one is being asked to prove consent.” . .

An inquisitorial could be less traumatic for victims than the current adversarial system.

But requiring defendants to prove consent is a reversal of one of the tenets of our justice system – that people are innocent until proven guilty.

It would mean defendants would be regarded as guilty until they could prove their innocence.

Rape is abhorrent.

It is a crime which inflicts physical and mental damage and for which there is no excuse.

But that doesn’t justify reversing the burden of proof to require defendants to prove their innocence.


What would I have done?

13/04/2009

When I first heard the news of yesterday’s daylight rape I wondered why the girl hadn’t sought help. But she did.

A 13-year-old girl pleaded for help from a stranger just minutes before she was dragged into bushes and raped in a daylight attack near a busy road in west Auckland.

Police say the girl approached a woman filling her car at the BP station on Great North Rd, in Waterview, and begged for help, after being followed by a stranger for about a kilometre from Pt Chevalier.

Police want to speak to the motorist after she reportedly told the girl to keep away from the man, before driving off.

My immediate reaction was, if only that woman had done something to help. But could I be sure I’d have done anything more?

I’d like to think so. But that’s easy to say from this safe distance without knowing all the circumstances and with the benefit of hindsight.


The judge is right

13/09/2008

A judge has refused to give a man accused of rape a video tape of his alleged victim’s interview with police.

Police fear tapes of victims discussing what happened to them which are regularly made by police, could be posted on the internet for the sexual gratification of other offenders if they fell into the wrong hands.

Police opposed the application and told the court if they were forced to release such tapes, victims could refuse to be interviewed or report a crime.

This week Wellington District Court judge Bruce Davidson refused the accused rapist’s request.

Despite the ruling, the newspaper said the future security of such tapes remained unclear.

A proposed law change to block the release of such tapes intended to be used as court evidence has been withdrawn for more work.

But the Criminal Disclosure Act 2008, which has been passed but has yet to take effect, could force the courts to release tapes not intended as evidence in court but this remains untested.

Police told the court they intended to lobby to change both laws.

I have no idea whether the judge had the legal right to make this ruling but he’s certainly ethically right to do it.


Sticks and stones

07/09/2008

Sticks and stones will break my bones but words will never hurt me; when your’re dead and in your grave you’ll suffer what you called me.

That takes me back to the playground but it was a serious issue which reminded me of the schoolyard rhyme – whether or not it’s appropriate to use the term “gang rape” as an analogy for attack by words.

A post by Chris Trotter in which he used gang rape as a metaphor for the media coverage of Winston Peters led to an eloquent post by ex-expat and several heart felt comments at The Hand Mirror.

Today Deborah Coddington also used the expression:

… those bandwagon jumpers who used the article to excuse their media equivalent of gang rape. 

The Dim Post picked up on that and said:

A new cliche is trying to force its way into our political discourse. Now, as my readers know, I’m not in favor of hysterical hyperbole at the best of times. . . – but cheerfully throwing accusations of gang-rape around really is a bit beyond the pale and should be reserved for those who really are demonstrably guilty of this hideous crime.

I’m not going to go in to the difference between verbal, psychological and emotional abuse which are all serious matters and rape, gang or otherwise; nor am I going to discuss why employing the term rape in this way is offensive because I don’t think I can add anything to what the ex-expat has already said so well.

I’m going to confine myself to language and the point that a metaphor should not get in the way of what it is being used to express and the term gang-rape does. It offends and upsets people so that it obscures and distracts from the point being made.

To illustrate this look at this sentence by Karl du Fresne:

I squirmed at the brutal mauling Coddington got from people who were plainly unaware that she was present.

Gang rape versus brutal mauling – the first becomes the talking point, the second expresses clearly the strength of the attack without distracting from it.

If the purpose is for the writer to get attention then hyperbolic metaphors work. If the purpose is to add colour and clarity to a piece then it is better to employ a less offensive, less emotive but far more apt and effective turn of phrase.


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