The Presumption of Innocence and the Common Law of England: an Analysis


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Under English common law there is a presumption of innocence with the onus on the prosecution to prove guilt beyond a reasonable doubt, only on the basis of admissible evidence. The accused has a right to a trial by jury with legal representation. The underlying principle of the English system of law is equality for all. This is essential to protect the innocent from unjust convictions. However, in relation to sexual assault cases, the protection afforded the accused may sometimes appear to abrogate the rights of the complainant.

A Womens Safety Survey taken in 1996 claimed that sexual assault was one of the least reported crimes in this country. The survey revealed that only 15% of women who had experienced sexual assault over the previous 12 months had reported it to police. What are the reasons for people remaining silent, for not filing a report? Their silence and the high attrition rate in sexual assault cases may be attributable to several factors, including; police response, the ordeal of the trial, cross examination, and judicial attitude towards the complainants. A phone-in survey of women taken in Victoria (ABS, 1993) asked several questions of the respondents in relation to the reasons why they remained silent. Some women spoke of their fear that police would not believe them, that the perpetrator would extract retribution from them if they did lay charges; family and friends advised them not to report the assault. Those women who had called the police claimed some officers were cold and insensitive, lack of contact with police once the initial statement was made, failure to be kept informed. Police attitudes are changing however, with specialised training programs being implemented to train police and equip them with the necessary skills required when dealing with sexual assault survivors. The IROC programme, (Initial Response Officers Course) is an example of the training available. This enables police officers to react with sensitivity to their delicate physical and emotional state (Moloney 1992, p 401). The enquiry as to the true facts reveals two scenarios; either the perpetration of the most degrading, humiliating and soul destroying crime that can be committed against another human being, or a false report motivated by fear greed or pressure from those within the complainants environment. In either case the responsibility of the police is to achieve its objectives with the least amount of trauma inflicted on the complainants as they progress through the judicial process. However, according to Byrnes (1992, p62), problems may occur where there are no IROC trained officers or female police available because of unforseen circumstances.

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A study by Gregory and Lees (1996) of attrition rates in two different London police boroughs found a high attrition rate appeared to be attributable to the police practice of no-criming, where a proportion of recorded cases were categorised as no crimes committed, thus they were not recorded as offences (p2). Cases were found to be frequently not proceeded with somewhere between the filing of the report, and the committal process (Chambers and Miller 1987) In fact, according to Edwards (1989, cited Gregory and Lees, 1996, p3) out of 773 reported cases a crime report was made in only 93 assaults, and an incident report in a further 73 cases. It may be concluded from these figures that police were losing cases from records that they deemed unlikely to proceed to court, or dealt with in some other way. The inherent dangers of these practises leads to a distortion of the true figures relating to incidences involving sexual assault. The distortion effect may then be manifested in the official and community perception of the prevalence of sexual assault, the belief that it is not a major concern of the community in general. The view could then be taken that it is not a problematic enough to divert funds and resources towards addressing the issues surrounding it such as law reform, more specially trained police etc. What these practices essentially do is trivialise sexual assault to some extent.

In her paper No Real Harm Done; Sexual Assault and the Criminal Justice System (1992, p97), Donna Stuart addressed some of the issues survivors of sexual assault had identified as contributing to the crisis of confidence they felt in the legal system. According to Stuart there was a perception of a licence to rape existing in the community, sexual assault being a relatively safe crime for perpetrators to commit.

She quotes one victim as stating; Why go through all that when he will probably be acquitted anyway? (Law Reform Commission of Victoria 1991, p119, cited in Stuart 1992, p97). The notion that it is a safe crime arises from the difficulties complainants may have in legally proving no form of consent was given. A phone-in survey conducted by the Real Rape Law Coalition (1991b, cited Stuart, 1993, p97) quoted one complainant as stating:

He threatened to kill me if I told anyone about the assault. He said no one would believe me anyway, adding he would just say I was a slut and consented to it.

The assailant was well known to the complainant, having had a previous relationship with her. Given such situations, it would appear Susan Brownmillers contention concerning sexual assault, it is a conscious process of intimidation by which all men keep all women in a state of fear(1975 p114, may have some validity.

Historically the question of consent has been a major factor in reaching a verdict in sexual assault cases. However the nineteenth century concept of consent had a different meaning to the present day one. According to Anna Clark, (1987, cited Smart, 1989, p41) consent was not a matter of a womans will, or whether she resisted or not. It was about how she conducted herself, the image she portrayed to others. The implication being that by her conduct, she signalled clearly to others that she was the property of her husband or father. If she was perceived to be loose or unchaste this then labelled her as the common property of all men and as such it did not matter if she clearly resisted the assault, the premise being that by her conduct she had already consented, asked for it. Woman who complained of sexual assault were often deemed to be of loose morals. Modesty in Victorian times insisted that a pure woman could never speak of such acts in public. Magistrates had a tendency to dismiss such cases on the basis that revelations would surely corrupt public morals! Thus, if a woman was able to verbalise her ordeal it provided conclusive proof of her sexual immorality. This perception of the bad woman may still be reflected in the present day legal system.

Significant gains reforming sexual assault laws have resulted in the issue of consent having a vastly different definition in todays legal system. Consent now is widely held to mean a consent freely and voluntarily given by a person with the mental cognition to give such consent, and without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely or voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.

(Rathus 1994, p31). A clear definition of consent is required as previously consent was assumed unless lack of consent could be proven. The comments by Judge Bland (1993, cited Rathus 1994, p32) only serve to reinforce how crucial it is for a clear concise definition of consent. The case upon which the judge commented concerned the accused being told to stop it prior to the assault taking place. During submissions Judge Bland, in his wisdom, commented to the Prosecutor that;

often despite the criticism that has been directed at judges lately about violence and women, men acting violently to women during sexual intercourse, it does happen to the common experience of those who have been in law as long as I have anyway, that no often subsequently means yes (Senate Committee 1994 p9, cited Rathus, 1993, p32). As a consequence of these comments the complainant in the case stated she had been to hell and back since the assault and the Judges remarks had made her feel as if the accused was in the right that she had been wrong in saying no. She expressed concerns that the judges comments might have in fact deterred other sexual assault victims from reporting. The complainant stated that other traumatic areas of the trial were related to the Corroboration warning and the fact that certain elements of her past sexual history

Kathy Mack (1998) cites the Corroboration caution as being of major concern. The ongoing use of this, despite being legislated against in all Australian states except Queensland, creates an impression that complainants have not been truthful in their testimonies. She explains the corroboration rule as being the practice whereby Judges direct juries in sexual assault trials that it is dangerous to convict on the uncorroborated testimony of the complainant alone (p61). According to Mack, legal research and surveys of complainants who have been through the legal process indicate that trial judges persist in administering this warning to juries. She mentioned a High Court decision whereby, although the Justices noted that the trial judge had given the legislated against warning, it did not take the opportunity to emphasise the importance of judges being aware and following the law in this area (1994, p190, cited in Easteal 1998, p62).

The admissibility of a complainants previous sexual history is another area where despite legislation, the discretion of magistrates and the cleverly constructed questioning by the defence counsel can sometimes result in certain aspects of a complainants sexual history becoming admissible during the course of the trial. Under the euphemistically titled Rape Shield Legislation (Henning and Bronitt 1998, p81), there are three principle aims in regard to the use of Sexual History Evidence. The first is the exclusion of the complainants sexual reputation; secondly the prevention of the defence using her sexual history to paint her as the type of woman who is free and easy with her favours. The third aim is to eliminate the connection between her sexual experience and the truthfulness of her testimony. However the laws do recognise that situations may arise where evidence, which discloses the complainants sexual conduct on previous occasions, may be genuinely pertinent to the facts. Accordingly the reforms are supposed to strike a balance between the rights of the accused and the rights of the complainant. Nevertheless, according to Henning and Bonitt (1998) evidence of sexual experience and reputation stills gains admission in sexual assault trials in contravention to the legislation.

Law has been perceived as a male dominated domain, with its language and practice reflecting the gender bias. Although laws and language have slowly begun to change, the attitudes and biases of some officials administering the laws have not. Judges are a good example of this; with newspapers and law books full of their judicial words of wisdom when presiding over sexual assault cases. To be fair, not all judges appear to hold identical views; some are far more enlightened than others. In recognition of the need for judges to undergo anti-bias training the Federal Labour Government granted funding to set up training schemes to assist judges in shedding their racist and sexist biases. Some said they believed judicial education was necessary and important. However, according to Scutt (1998,p170), given the endemic nature of sexism and racism within the judiciary it would be very surprising if the small steps taken so far would result in any real shift of attitude. In 1997, a retiring judge caused a public outcry when he commented that a mature worldly woman was less likely to be traumatised by rape than an 18 year old virgin (1998, p 171). The judge admitted he had never attended any training sessions and considered himself too old to be taught anything new.

In answer to the question of whether it is the rhetoric of law or its practice by state officials that cause such high attrition rates in sexual assault cases, let us look at it in the context of a complainants courtroom experience. She faces an adversarial system of justice where the outcome is a verdict of either guilty or innocent. A guilty verdict means she has been validated, an innocent verdict means she then becomes the guilty one; labelled as a liar. To reach this conclusion she has to endure almost unbearable questioning, she becomes reduced to nothing more than a set of genitalia and a pair of breasts, her body is sexualised in a courtroom full of strangers. She then has to describe in intimate detail what was done to her with the defendant sitting there listening to every word, possibly even gaining enjoyment from the recreation of his power over her. If there are multiple defendants and each has a separate legal counsel, each one will question her and she will have to tell and re-tell every last little detail. As one victim stated, It was the most hurtful, soul wrenching eventthe most embarrassing situation anyone can ever go throughlike being violated all over again (Austin 1998, p148). No other trial treats the victim as unfairly as sexual assault trials. The accused does not have to give evidence, he is not cross examined for hours on end, subjected to the same character dissection as the complainant, he is represented by legal counsel, the complainant is not, he is present during the whole proceedings, the complainant is not, he is entitled to hear all the evidence, all the witnesses, the complainant is not, unlike the accused, the complainant is never told (Stuart 1993, p96)

In conclusion it may be fair to assume the high attrition rate in relation to sexual assault cases could be attributable to a combination of all the previously held factors. Law with its black and white search for truth, and the officials that administer the laws with their inherent biases. Lynette Byrnes sums it up in her paper titled Only a Witness (1992).

What survivors of sexual assault are saying in increasingly louder voices is that the reforms made so far are not enough

What survivors say is not what legislators and the judiciary want to hear because it means a radical overhaul of the criminal justice system; a complete rethink of the way society deals with the crime of sexual assault; from reporting to prosecution, sentencing, and compensation. It also has implications for community education.

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