109 women prosecuted for false rape claims in past 5 years

I'm a legal person, though we're really not talking rocket science here. The process (adversarial versus inquisitorial) and the burden/standard of proof (innocent until proven guilty beyond reasonable doubt versus e.g. the civil test which is on the balance of probabilities) are fundamentally independent. You could have an inquisitorial process that needed to prove guilt beyond reasonable doubt or an adversarial process with a lower test (e.g. civil litigation).

I'm no legal expert either, so I could be wrong, but I've always gotten the impression that in an inquisitorial system... because the goal is to paint a picture of what happened, rather than prove or not prove a specific person's guilty... The accused is in a position that is more like 'neither innocent nor guilty... We'll see!' than they would be otherwise.

I would also think the inquisitorial style would lead to a tendency of 'the balance of probabilities' as the burden of proof instead of the 'beyond reasonable doubt' that the adversarial system has.

For sure.

I think certain cross examination strategies used by defence lawyers are intended to do nothing but harass, upset and intimidate the victim.

This is especially worrying because psychological research shows that memory recall is negatively affect when extremely emotional and therefore the harassment has an affect on the rest of the testimony. No doubt lawyers know and use this to their advantage.

I think there should be more interjection from the judges when lawyers go too far, and there should be stricter rules for cross examination like there are when child witnesses are questioned.

Some questions too, should be banned. Particularly intimate details are not necessary. I once heard from a woman who had been raped, the man was found guilty mostly due to forensic evidence, and the defence lawyers asked her how often she masturbated in an attempt to show she was a highly sexed person 'gagging for it'. That is just awful.

Anyway, the system definitely needs improving, but I don't think an inquisitorial system is suitable as a think a certain degree of an adversarial approach is needed for a system to maintain the 'innocent until proven guilty' principle that I think is so important.

Hmmm, perhaps I still haven't given a good explanation as to why I think the right to innocence until proven guilty is more important than justice for the victim. But how do you justify a subjective value judgement?

I guess I would say that I think certain rights need to be enshrined for a justice system to work probably. Innocence until proven guilty, a fair and open trial, right to cross examination, due process, etc.

I've seen what countries are like without this and it's a mess.

Well Buffy, I think Florafox is probably right in that it is a value judgement I have made.

I've lived in countries such as India (where my family is from) and Thailand where I worked for a time... And there the right to be considered innocent until proven guilty is not taken seriously. The result is that whenever there is a high profile case (usually involving tourists or people famous domestically), the police just arrest people on a whim and they invariably get jailed purely on the victims testimony which is often poor and unclear. It's not rigorous at all. They do it just to create the illusion that the victim has gotten justice, it's still safe to holiday here, and let's just all forget about it now.

Of course, this means lots of innocent people are jailed, and I've seen many mallicious accusations result in successful prosecution. Also, it means that the really culprit is still out there reoffending.

An example recently: that young couple who were murdered on Ko Tao in Thailand, and then some Burmese immigrants were arrested for it. Thai people hate the Burmese with a passion, racism like you've never seen. I doubt they did it, but the gov wants to show they've got a conviction and hope it won't affect tourism much. Same thing happens to Pakistani and Bangladeshi people in India. In the UK, those sorts of convictions are less likely.

If the innocent until proven guilty principle was more ingrained in this cultures, then people would not stand for this. I think one of the great things about the UK is the robust protections our justice system affords the accused.

the right to be consider innocent until proven guilty is fundamental to justice

It's fundamental to our criminal justice system but it's not necessarily fundamental to justice. Justice is about more than the rights of the accused person, it's also about being able to access protection under the law. Currently many, many women do not receive justice when they are raped and many men who are rapists escape justice. The right to be considered innocent until proven guilty is part of the reason for this and therefore it contributes to injustice.

I would be hesitant to overturn that principle entirely but it is worth considering adjustments that will better serve justice. There are some crimes where reverse burdens of proof are in place and some where an accused must present evidence for particular defences.

In our lifetime, there have been changes to principles that were once considered untouchable fundamental principles of justice, such as the right to remain silent and the rule against double jeopardy. I broadly agree with those changes. There have also been changes I don't agree with, such as the right to face your accuser and to have your case heard in open court (terrorism cases). In the past, we have also had principles suspended (e.g. Diplock trials without juries in northern Ireland) which I don't agree with.

It's too simplistic to simply say something is fundamental to justice and therefore untouchable. This is the key statement from your post:

more important than conviction rates or the rights of victims.

That's a value judgement based on your views, not an objective, neutral statement. You value the rights of a tiny number of men not to be wrongly convicted of rape over the rights of a large number of women not to be raped or to receive justice for rape.

Why? Because the right to be consider innocent until proven guilty is fundamental to justice and more important than conviction rates or the rights of victims.

The accused is innocent unless the accusor/prosecution can show otherwise. In a cases of 'my word against theirs', this should mean that the advantages lies with the accused.

It's a worthwhile principle that it's worse to imprison an innocent person than it is to acquit a guilty person.

No that's not how it works. There is no burden on either side to prove something - it's down to the court to discover the truth of what happened, from a starting point. So for inquests, there is an easy and obvious starting point - someone died. For sexual assaults the starting point would be 'this person has made an allegation'.

The French have a partially inquisitorial system where an investigating judge is appointed in serious cases like rape and murder. In fact they still have a prosecution and defence but it's the judge who frames the investigation of the facts. (Actually this used to be the historical role of a jury in England). It would be possible to adapt the current English system in a similar way.

Even if this only addressed the problem of complainants being cross-examined by rapists or rapists instructing their counsel to ask humiliating questions of complainants, it would be worth it in my view.

yes, why? this is the system with civil cases

The problem with an inquisitorial system is that we NEED to assume the man is innocent until proven guilty. The onus is on the prosecution, not the defence.

An inquisitorial system would surely render a situation where the burden was equal on both sides, and that would not be right.

Yes, MyEmpireOfDirt, you're right. And I can't see lawyers changing their game for anyone. Your ideas are more realistic.

So many of the problems about the way rape is treated by the criminal justice system could be solved or reduced at least if we didn't have the adversarial system.

If we had an inquisitorial system where the job of all the people in court was to arrive at the truth then we wouldn't have aggressive cross-examinations of victims. We wouldn't have a CPS whose job it is to get rape convictions and so don't take on cases where they don't have a 'realistic chance' of getting one to avoid ruining their figures. Judges or investigating magistrates could be trained in dealing with the specific issues around rape and sexual assault. Police officers might attempt to actually discover the truth of a situation rather than only trying to accumulate evidence one way or the other. Victims might begin to feel as though they were taken seriously. And the broader public would probably start to think that men who had been convicted of rape were actually rapists.

No system is perfect but the one we have now is broken.

Fiyasse "some sort of evidence" includes testimony. Testimony is pretty much essential for most prosecutions. If you were robbed on the street and you could identify the individual but he wasn't found to have your possessions on him, your testimony would be "some sort of evidence".

What other evidence are you expecting in a rape trial where the accused does not deny that sex took place?

Welcome to Mumsnet, Fiyyase. You may wish to read this for background:

www.theguardian.com/commentisfree/2013/mar/13/false-allegations-rape-domestic-violence-rare

And like I said, for a false rape accusation to be counted it must be proven to be a false accusation and the accuser must be proven to be lying (unless he/she admits to making a false report).

We actually don't know just how common false rape allegations are.

If a rape allegation goes to court and ends in a not guilty verdict, we just don't know if that was a rape that failed to end in conviction, or a false rape allegation that wasn't proven as a false allegation.

All stats are based on the assumption that all cases that end in "not guilty" are in fact genuine rape reports where the accused should be guilty, but we don't know for sure.

You should be out campaigning against men entitled to force sex on unwilling men, rather than on the false allegations bandwagon, prashad.

You're statistically more likely to be the victim of the former, rather than the latter.