109 women prosecuted for false rape claims in past 5 years

[AWholeLottaNosy]

This made me so angry. The thousands of women that can't get justice for being raped due to 'lack of evidence' yet the CPS thinks it's ok to pursue these women for reporting their rape to the police. We all know how incredibly hard it is to report a rape and the facts speak for themselves, aprox 85,000 rapes a year, 5-15% are reported, of those reported rapes, only 6% get a conviction. This is a fucking travesty but it seems like it's easier to get a conviction for a false rape allegation than get a conviction for a devastating, life altering crime? Something is very wrong here...

www.theguardian.com/law/2014/dec/01/109-women-prosecuted-false-rape-allegations

Oh and last thing, false rape allegations are aprox 2% of all reported allegations, similar to other types of crime.

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, why? this is the system with civil cases

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.

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.

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.

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.

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.

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.

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.

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 think the mechanisms to put principles of justice into practice that actually work are ones that reflect and are endorsed by broader cultural values. The stated principles and even the mechanisms themselves are less important than the beliefs of the people who operate the mechanisms. This is pretty evident in the US where slavery, racism and patriarchal oppression of women have all thrived despite their constitutional "rights". I'm not much of a fan of legislated human rights that put essentially political decisions in the hands of judges.

That's not to say that changes to the mechanisms and principles don't have an effect. Changes in rules against the right to silence, double jeopardy etc. definitely have impacts. In rape cases, I would favour thinking about reverse onus for certain defences, curtailed questioning by defence lawyers (which in itself would violate the adversarial system in its purest form). I don't think an inquisitorial system in itself would necessarily help if the attitudes of the inquisitor are informed by rape myths, for example.

prashad I would say that countries such as India or Thailand may appear to have adopted principles of innocent until proven guilty, justice is blind etc. however underlying cultural values (such as racism or a caste system) would always influence how they are put into practice. The English legal system is not immune to cultural values affecting the administration of justice. Whether it's "is this the type of book you would wish your wife or servants to read" (and many other examples of the white, rich, male voice in English legal judgements) or assumptions about women, consent and rape (rape myths).

In my opinion, justice is broken around rape convictions. You choose to prioritise the tiny number of men who might be falsely convicted but that is simply a political choice. Calling it fundamental justice or whatever is an attempt to appeal to a higher moral or political supposedly neutral authority which masks the political nature of the issue.

Sorry MEOD I didn't refresh before I posted. I just repeated what you said

I was just thinking, if 0.4% of rape is convicted and false allegations are 2% then that would mean 0.008% of convictions are false allegation. It would mean that for every 1,000 women who reported rape:

9,000 women didn't report it
100 cases were tried
20 rapists were found guilty
8 women faked it

Want me to put it another way?

If those 109 women really did cry rape.
122,625 women didn't report being raped
1,362 cases were tried
272 rapists were found guilty.

For anyone who thinks that it's fair for those 109 women to be tried, do you think it's fair that for those 109 women 121,263 rapists didn't even see a court room and 1090 men got off?