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Changes to the criminal justice system - critique my ideas!(1 Post)
It seems to me that part of the reason so few rapes and sexual assaults are (1) pursued by the CPS and (2) successful at trial is the burden of proof. The Crown has to prove ‘beyond reasonable doubt’ that the defendant is guilty. Jurors are told that they 'have to be sure’ before convicting.
In rape and sexual assault cases where the defendant is known to the complainant (victim), and the issue is consent (as opposed to whether they had sex in the first place) there is often no contemporaneous written evidence of the lack of consent, and there may not be medical evidence of injuries. In such cases where it is his word against hers and both defendant and complainant appear credible when giving evidence, even the most feminist jury has to acquit, because, hand on heart, they cannot be ‘sure’. The CPS won’t proceed with a case unless there’s a reasonable chance of a conviction, so lots of cases won’t go to trial, and of those that do, lots will fail.
I have two alternative ideas:
1. Rape and sexual assault cases should be treated differently to other crimes within the criminal justice system. There should be three verdicts open to the jury: guilty, not-guilty, and innocent. The burden of proof on the Crown would be ‘on the balance of probabilities’. This is the lower civil standard, applicable for example in family law cases where there is a dispute of fact as to whether child abuse took place. If the jury find ‘not-guilty’ (as opposed to ‘innocent’) then the defendant goes on a list for a certain number of years - the list would not be the same as the Sex Offenders Register because he would not have been convicted, but it would be a record that could be taken into account if future accusations are made against the same defendant.
This system would undoubtedly disadvantage men against whom rape or sexual assault allegations are made. But under the current system the difficulty of obtaining a conviction means that rape is virtually legal. So it would be a rebalancing in favour of women. If there was a real risk of a rape case men might modify their behaviour - completely refusing to have sex with drunk or vulnerable women for example.
2. Accept that the criminal justice system is simply not set up for cases where the issue in dispute is consent. Instead create a fund to pay for legal representation to enable women to pursue civil claims against men who have raped or sexually assaulted them. The burden of proof would be ‘on the balance of probabilities’. There would be no jury, you just have to persuade a judge. The judge couldn’t jail the defendant, but could award big damages. Obviously having to pay damages doesn’t properly penalise the defendants, but this system would be aimed at those men who are currently getting away with it entirely.