Beyond all reasonable doubt

[WhichJob]

Rape and sexual assault convictions are partly so low because of the high legal threshold for juries to convict. Anecdotally I heard this week of a jury in a case where it seemed very clear the defendant had raped the victim, but the jury clutched at so many straws to bend to the 'beyond all reasonable doubt' threshold that he was found not guilty. Which, as we on this board know, leads to 'she made it all up' allegations. When a not guilty verdict basically means 'not proved' rather than 'innocent'.

I have been ruminating on this over night and I now feel that the law is set up for women not to be believed and for men to walk free. Could a 'on the balance of probability' threshold work better as they have in Scotland?

They don't have a balance of probabilities in Scotland. They have beyond reasonable doubt as in England. However they have a not proven verdict which a jug can choose over not guilty though in practise it's no different in terms of outcomes.

Do you have a link to the case you describe?

Umm was this a civil case? If so it's the same balance of probability in England and Wales.

There won't be a link to the case because nobody records what happens in the jury room. Nobody should be discussing it with their friends and family either...

As Bungle says, they still have beyond reasonable doubt in Scotland. But there are three verdicts: guilty, not guilty and not proven. My understanding is that sexual assault cases in Scotland result in a disproportionate number of not proven verdicts. There are benefits to this (in that it provides some vindication for the victim) but it doesn't change the ultimate outcome, that the accused is legally not guilty of a crime.

A not proven verdict would be a good thing to have, though - could reduce the amount of victim blaming and idiots claiming that the victim lied.

But I think the main problem is not with the law itself but with the fact that most people are misogynist assholes.

Thieves also must be found guilty beyond all reasonable doubt, and there seems to be no widespread problem with people claiming that the thief thought he was being given someone's purse, phone or handbag as a gift.

You mean like this guy who claimed that he tripped and fell onto a teenage girl and penetrated her by accident?

Independent link

And the jury believed him.

There won't be a link to the case because nobody records what happens in the jury room.

^^This. And that is why I don't have a link and I said it was anecdotal. However, if the threshold of proof disproportionately disadvantage women then we should discuss it.

It isn't the same as convicting a thief, juries are likely to be more reluctant to convict rapists 'it will ruin his life' etc etc.

I don't think the level of proof should change but I do think the infallibility of the jury's reasoning needs a rethink. To me it makes no sense that they get to make a decision in a bubble with no accountability. How is that justice?

True. I don't have any suggestions really, but I do believe in juries I just don't think the current system works for women.

The threshold is no longer 'beyond a reasonable doubt' (and it's never been beyond all reasonable doubt).

The threshold is now that the jury must be sure. 'Sure' takes its natural meaning, and the judge may not elaborate further as to what sure means in their directions.

There is a general consensus among lawyers, although of course not all agree, that 'sure' is a slightly lower threshold than 'beyond a reasonable doubt.'

In my view, there are two main reasons why we have such low conviction rates for rape/ sexual assault:

1. Mysogynist social attitudes/ rape myths
2. The fact that, by its very nature, these crimes often have less corroborative evidence than other types of crime.

This is where the focus should be, not the standard of proof.

OneStep, I haven't been in a courtroom for a couple of years but it certainly was beyond reasonable doubt last time I was there. Can you cite the change? I found this when I did a quick Google, which does cover some issues with juries.

www.crim.cam.ac.uk/research/beyond_reasonable_doubt/

OneStepForwards wrote - "The threshold is now that the jury must be sure. 'Sure' takes its natural meaning ... There is a general consensus among lawyers, although of course not all agree, that 'sure' is a slightly lower threshold than 'beyond a reasonable doubt.'"

What do you mean by its natural meaning?

Your post surprises me because the dictionary definitions of "sure" are:
"Completely confident that one is right" or "True beyond any doubt"
(Oxford English Dictionary en.oxforddictionaries.com/definition/sure).

"certain" or "without any doubt"
(Cambridge English Dictionary dictionary.cambridge.org/dictionary/english/sure ).

To me, "sure" suggests a higher threshold that "beyond reasonable doubt" .

I wouldn't want to be on a jury in a million years. It's all so bloody infuriating, and rarely about truth or justice. I'd be playing get out of jury card!

Dervel, but the very people who want to get out of jury service should be on juries!

Ummm why? The idea of holding another human beings life in my hands is not an inviting prospect, also say it was a rape trial the effect on a potential victim? Sounds like hell especially if you get it wrong.

Because it means you will take it seriously and others who try to defer it for childcare issues/work issues etc should also be on juries too because it should reflect society, not just those who fancy it/have nothing better to do.

That's why it's important to counter rape myths on the many threads on here and irl. Disproportionate (imo!) weight is given to frankly ludicrous defences because lots of the public still hold antiquated ideas about consent. And they make up juries.

And, yes, juries should be representative of the people. It concerns me that this is becoming less so.

New Zealand is trying out some things:

www.adls.org.nz/for-the-profession/news-and-opinion/2016/2/5/sexual-violence-reform-change-at-last/

because lots of the public still hold antiquated ideas about consent.

This opens up a huge philosophical question: if the public (the guy on the omnibus) holds certain beliefs, then those beliefs are the norm. That is the core of the jury system.

Quite. Norms change, though, which was my point. Challenging those beliefs (for me, largely around the reasonable bit of a defendant's reasonable belief in consent) is part of my job as a feminist.

I was under the impression that beyond reasonable doubt was there so that the innocent don't get convicted, even if it means the guilty escape. That it is more heinous to deprive someone who is innocent of their life and liberty than it is to imprison the guilty.

As OneStep said- surely the emphasis should be on how we evaluate corroborating evidence, or the law itself. But it doesn't seem reasonable to lock people up for criminal charges on a flimsier belief in their guilt.

Maybe another way to redress it would be to introduce the possibility of suing someone for rape- that's on the balance of probabilities.

I would love to see a reversal of the burden of proof in rape cases. I'd love men to need to explain exactly what evidence they have for drawing the conclusion that a woman consented if she says she didn't. I'd love men not to have the attitude that it's perfectly OK to push and push the boundaries. I'd love men to have to exercise caution about the character and intention of women they have sex with.

You can bring a civil case now if you wanted to. In fact I've mooted a charity designed specifically to raise funding to do exactly that. Especially in all these high profile celebrity cases, as I believe it would at least change the discussion around someone being not guilty and actually being innocent.

Problem is a) lawyers are expensive and b) we'd be asking an awful lot of rape victims to go through it all again. So I think the charity would need to be inclusive of a specialist counseling support.

Could a 'on the balance of probability' threshold work better as they have in Scotland?

"Balance of probability" is the civil test for England and Wales and Scotland. A criminal case in Scotland is beyond all reasonable doubt.

Scotland and England and Wales permits civil actions for damages to be brought for hurt or loss caused by an activity which has not resulted in a conviction but a defender who loses in such a civil action is not guilty.

www.dailyrecord.co.uk/news/scottish-news/david-goodwillie-rape-victims-civil-9670311

There are benefits to this [not proven] (in that it provides some vindication for the victim) but it doesn't change the ultimate outcome, that the accused is legally not guilty of a crime

I disagree. I don't see any merit in not proven - no one seems to be clear what it means.

Thanks for the clarification around the Scottish system, apologies if my OP misled.