Reverse the Burden of Proof in Sexual Assault Matters

[Forty Two]

http://www.independent.co.uk/news/world ... 92559.html

New Zealand’s second-largest political party wants to reverse the burden of proof in rape cases if it gets into power, making defendants prove their innocence to reduce the trauma suffered by victims.

Andrew Little, the Labour Party’s justice spokesman, has outlined plans for a monumental shift in the justice system in the run-up to the country’s general elections in September.

[laklak]

We should allow the accusers to remain anonymous, too. Hard to prove you didn't rape someone if you don't know who they are.

[Brian Peacock]

"I ask you: Did you not, or did you not not rape that sheep?"

[NineBerry]

It's actually already similar for other crimes. In the case of a theft for example. When the victim says, something was stolen from them and the person who is found with that thing says it was given voluntarily, who is the burden of proof on, then?

[cronus]

It's when they rape you with their eyes. That should be criminalised. Had it happen to me. And I'm not even pretty. Actually.

[Forty Two]

They're up to this totalitarian bullshit in Canada too --

Much of the anger has focused on the defence team’s strategy of undermining the testimony of the complainants by questioning their recall of traumatic events, and some campaigners have called for the creation of special sexual violence courts, with judges and prosecutors who have been trained in areas such as intimate abuse and trauma.

Speaking to the Guardian, the first complainant in the high-profile case called for sweeping reforms. “The whole system needs to be changed,” she said. “It can’t just be one person on the stand with a seasoned lawyer throwing darts at them.”

https://www.theguardian.com/world/2016/ ... s-approach

Oh, yes, we have to overhaul the system, because liars were found out. When the judge acquitted Ghomeshi, he wrote "The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception. The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the court to consider them to be a trusted source of the truth." Dozens of women chanting, "We believe survivors!" gathered outside the courthouse in frigid conditions, condemning the verdict and what they called the unfair treatment of sexual assault victims by the justice system. Yes, we believe the accusers, even when they flat out lie. He did it. Any lies or inconsistencies or questionable behavior, well, all of that is consistent with someone who really was sexually assaulted. So, even when accusers lie, they should be believed.

[laklak]

"I ask you: Did you not, or did you not not rape that sheep?"

She was bleetin' for it, yer Honour.

[JimC]

There are pendulum swings in this issue. In the past (and still to a fair degree), grilling of women by defence lawyers was done in a very nasty way indeed. Anything went...

Reactions to this by the women's movement were virtually inevitable, and of course it is possible for the swing to go too far. Of course there needs to be an opportunity for judge and/or jury to assess the veracity of the woman's evidence, but surely that can be done without vicious interrogation by lawyers with a take no prisoners attitude.

[Forty Two]

In the Ghomeshi cases, simply calmly presenting proof to the witness that the witness was lying is being portrayed as unfair interrogation.

The rationale coming out of the movement is that no matter what a person does or says, it's consistent with being assaulted. So, if you complain that someone raped you, and then that same night send emails or texts to the alleged rapist talking about how wonderful it was, and how you can't wait to do it again, the latest wisdom from the movement is that this kind of text is consistent with how some women behave after being raped, therefore, it ought not be allowed to be considered in assessing veracity. This is portrayed as the system requiring women to be "the perfect victim" and all that.

Obviously, there are and ought to be limits on cross examination. A woman ought not be confronted by her voluntary sexual liaisons with other men in order to prove that she likely wanted in this instance, too. That's prejudicial, not probative. However, the defense ought to be able to confront the witness with evidence which contradicts their statements and allegations. If that's uncomfortable, well, there is little to be done about that. In any court case, the veracity of witness testimony is key. Given the notorious unreliability of "eyewitness testimony", the veracity of those witnesses is crucial.

[Brian Peacock]

Do you feel men are being disproportionately wronged and/or maligned with regards to allegations of sexual misconduct or serious sexual abuse?

[Forty Two]

Do you feel men are being disproportionately wronged and/or maligned with regards to allegations of sexual misconduct or serious sexual abuse?

I'm not sure I understand the question precisely. Can you clarify what you mean by disproportionately wronged or maligned in this context? Do you mean like the assertion that blacks are disproportionately stopped by police?

However, I would say that it would be unfair to reverse the burden of proof, and it would be unfair to limit the ability of a defendant to cross-examine a witness with proof that the witness is not telling the truth. That would be a wrong.

[Hermit]

http://www.independent.co.uk/news/world ... 92559.html

New Zealand’s second-largest political party wants to reverse the burden of proof in rape cases if it gets into power, making defendants prove their innocence to reduce the trauma suffered by victims.

Andrew Little, the Labour Party’s justice spokesman, has outlined plans for a monumental shift in the justice system in the run-up to the country’s general elections in September.

The article is over three years old and nothing has come of the plan. There has been another call for it earlier this year, this time by an ordinary Labour Party MP. Nothing will come of that either.

As for Andrew Little's claim that "shifting the burden of proof on the issue of consent to the defence ... does not contradict the fundamental principle that a defendant is innocent until proven guilty", I can only ask: WTF? The bloke is totally bonkers.

There is no way in the world I'd support anything like this. Habeas corpus and the presumption of innocence until proven guilty are the keystones protecting the freedom and liberty of the individual. I will not have either of them touched. And, yeah, about 42's posts in this thread: What he said.

Take note, Animavore.

[Hermit]

It's actually already similar for other crimes. In the case of a theft for example. When the victim says, something was stolen from them and the person who is found with that thing says it was given voluntarily, who is the burden of proof on, then?

Possession of stolen goods itself is a crime if the person in possession of those goods is aware that they are stolen. It is up to the prosecution to prove that this person knew they were stolen. If they fail, he/she will not be charged with any crime, but the goods will be returned to their rightful owner.

[NineBerry]

Lol, how could the prosecution prove in any case where there are no other witnesses except the victim that there was theft and not voluntary giving?

[Forty Two]

Well, often the suspect cracks under questioning. Even though people have the right to remain silent in many places, often they don't, and they make statements which are against their interest.

Evidence might exist - when they search the guy's phone or the circumstances of the manner in which the defendant acquired the goods is brought to light.

Remember, acquittal is based on "reasonable" doubt. If the facts and circumstances suggest that the only doubt is not reasonable, then the defendant should be convicted.