If disbelieving victims is the default position, how can we deliver justice?
CN: rape, the legal system.
Rape is a notoriously difficult crime to prosecute. While victims often come forward with credible testimonies and physical evidence, proof of breached consent is far harder to obtain. We know that a whopping 94% of rapes do not get the justice they deserve, and we don’t seem to be any closer to a solution. We cannot circumvent justice — everyone must be tried to the same standard, whatever their crime. And it is right that we have a very high threshold for determining guilt. But we have to do something to address the problem of low conviction rates and the effect on victims.
The path that any criminal allegation takes through the legal system is long and full of checks on the merits of the case. If a case is dropped, it is because the case is not considered strong enough to prosecute, not because the crime didn’t happen or that anyone’s making things up. But rape cases tend to be lost in the system more than others because it is difficult to demonstrate there is a case worth taking to trial. In these cases, the evidence isn’t considered sufficient to be able to convince a judge and jury that the defendant has a case to answer; it makes no inference as to whether or not the crime actually occurred.
Innocence and guilt are absolutes that the public clings onto because they provide certainty in an uncertain world. But real-life, and real court cases are not simple, and yet we apply these terms and then construct our own narrative about who’s lying, who deserves our sympathy, and what type of people the defendant and accuser must be. We base our ideas on high-profile cases that make it into the media, and not on our own experiences and understanding of our own world. This means that we have doubts about certain claims based on little more than 21st Century superstitions, that influence us before we even consider the facts of a case.
In Scotland, a number of women have used the justice system in an interesting way to seek redress for crimes committed against them. There was no change in the law, or reform of any court or process. They just used an existing system to their advantage. And they are finally winning.
These rulings took place in the civil courts. They highlight the difficulty of prosecuting those charged with rape, and raise questions about how we address this crime from a legal perspective. In the UK, rape is tried in the criminal courts, where a conviction is dependent on meeting the standard of “beyond all reasonable doubt”. Civil matters, which involve disputes between two parties, are resolved in the civil courts, which require that the defendant is found to be at fault “on the balance of probabilities”. So why are the civil courts getting involved in rape trials?
More women will seek justice through Scotland's civil courts system in the wake of a landmark case in which a woman is…www.scotsman.com
It’s important to note the precise language used in a courtroom, because these terms vary between jurisdictions and in different types of court. Legal terms like “guilty” and “not guilty” are often used interchangeably with other similar phrases in ordinary conversation, which can confuse the actual meaning and significance of the outcome of a trial. As well as the difference in procedure, verdicts and burden of proof between the civil & criminal courts; different regions of the UK do things differently as well. And so we need to talk about the different types of court and their functions.
In England and Wales, only two verdicts are possible in a criminal court: “guilty” or “not guilty”. The only other possible outcome is for the trial to be ended by the judge, which can occur if relevant evidence has not been disclosed, the jury has been prejudiced, the jury cannot reach a verdict, or the judge rules that there is no case to answer.
But in simple terms, we’re basically looking at “guilty” or “not guilty”. If a mistrial (like those examples above) occurs, a retrial may be possible. It’s important to note that “not guilty” does not mean “innocent”. “Innocent” is not a legal term, yet it is commonly used by the media and supporters of a defendant who is found “not guilty”.
“Not guilty” means that a jury could not say beyond reasonable doubt that the defendant definitely did it. They might have thought that the defendant probably, or very likely, did it, but could not say for sure.
This means that a lot of genuine criminals will walk away free from their trials — but that is how our justice system is meant to work. We consider a miscarriage of justice to have occurred if an innocent person is found to be guilty, but not if an offender is found not guilty. A lot of people that have been acquitted on “not guilty” verdicts are guilty as hell — a “not guilty” verdict does not mean that a crime did not occur.
In Scotland, a third type of verdict is possible: “not proven”. This can be used by a jury if they cannot say beyond reasonable doubt that a defendant is guilty, but they’re still sure enough that the defendant is not innocent. If the evidence isn’t strong enough to reach the high bar needed for a “guilty” verdict and the defence has not successfully proven their innocence, “not proven” is the relevant outcome. In terms of the legal consequences, “not guilty” and “not proven” are basically the same. The defendant is acquitted in both instances and they do not have a criminal record. But a “not proven” verdict is important symbolically because it acknowledges the harm done to the victim while also recognising that the evidence is insufficient to convict.
If a jury reaches a “not proven” verdict in a rape trial, it indicates that they do believe the complainant, but the corroborating evidence is not strong enough for them to declare the defendant guilty beyond all reasonable doubt. This has the additional benefit of challenging the popular view that only a “guilty” verdict proves actual guilt. Whereas a “not guilty” verdict undermines a victim’s credibility in the public view, “not proven” does not.
Much is made of the inconsistencies in witness statements and cross-examination in rape trials, as if that were enough to invalidate their testimony. But criminal trials are a complex business, and conflicting accounts are normal and expected. This is why trials are so difficult, expensive and time-consuming. A jury is asked to consider all of the information before them, not just one person’s word against another’s. If it were that simple, we wouldn’t bother going through the process. But rape trials seem to be unique in the public’s thirst for a simple and unambiguous “answer”.
There is no official legal definition of “reasonable doubt”, although juries are often instructed to find the defendant “guilty” only if they are sure that the defendant is guilty. From The Crown Court Compendium Part I May 2016:
“The prosecution bears the burden of proving that the defendant is guilty. The standard of proof is to the criminal standard: the prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty… If an advocate has referred to ‘beyond reasonable doubt’, the jury should be told that this means the same thing as being sure.”
If we define “beyond reasonable doubt” as “being sure”, which is the standard most commonly used in British criminal courts, it does seem to make a little more sense.
What might reasonable doubt, or being sure, mean in a society that is biased against women, though? Institutional sexism and distrust of women has skewed our ideas about women’s character and trustworthiness so that when we judge cases like these, we already start from a place of disbelief. Is that reasonable?
We start out by believing every other person who reports a crime; why not women reporting rape?medium.com
When we look to how things are done in the civil courts, different legal terms are used, and the case is settled upon whether the defendant is found to be “at fault” or not. Civil cases usually do not involve juries, and are tried by a judge. Criminal cases cannot be tried in a civil court — the civil courts are used for settling disputes and damages between parties, whereas in a criminal court the defendant is on trial against The Crown and not the victim.
If somebody is found “guilty” in a criminal court, they can appeal it as long as they are able to present new evidence that casts doubt on the original verdict. Additionally, whatever the verdict reached in the criminal courts, one can still be taken to civil court over harm caused to another party. This can happen even if a “not guilty” verdict was reached in a criminal trial connected to the civil case.
This is because of the lower burden of proof in the civil courts. So if somebody was found “not guilty” in the criminal court, it can still be argued in the civil court that the crime did occur and was committed by the defendant — if it appears that on the balance of probabilities that they did do it. But the civil court cannot hand down prison sentences or alter criminal court verdicts. It is there to settle disputes and pay damages or monies owed. Simply speaking, it’s where you go if you want to sue someone.
The Balance of Probabilities
The different levels of proof required between the two court systems has thrown up an intriguing and relevant problem. Stephen Coxen stood trial for rape in November 2015, in a Scottish court (this is important, remember how there are three verdicts available in Scotland). The case against him was found to be not proven.
But his accuser took him to the personal injury court to sue for damages and financial losses. To be clear, he was not on trial for the original crime — the criminal courts had already found the case not proven, which results in an acquittal with no criminal record. As a result of the rape, his accuser had suffered injuries requiring surgery, a chronic form of PTSD and depression — and her claim for damages was based on this.
A woman has won £80,000 in damages from a man who had been cleared of raping her after a night out in Fife. The woman…www.bbc.co.uk
The judge in the civil trial said that the accuser’s evidence was “cogent, compelling and persuasive”, and based on the available information, ruled Mr Coxen raped the woman, and demanded he pay damages. Those damages, totalling £80,000, will mostly go towards paying the victim’s legal fees, but she is still satisfied with the outcome.
“It’s been a long journey to receive this justice and it is disappointing that it took a civil hearing following a criminal trial but I am obviously very relieved that now someone has listened and acknowledged that the actions of Stephen Coxen were wrong and unlawful.”
This leaves us with some ambiguity over the concept of “guilt”. It is possible for the civil courts to be able to establish guilt in cases that a criminal court cannot. This is a problem not only for rape trials, but for all other types of crime. In the case against Vicky Pryce for perverting the course of justice, the judge was scathing of the original jury’s inability to understand basic concepts, but some of the questions asked by that jury were clearly relevant to their background and cultural conditioning. Like all other things, the meaning assigned to them is dependent on the society in which we live and our shared understanding of common concepts.
Here are the jury's ten questions to the judge, and his answers. Q1: You have defined the defence of marital coercion…www.standard.co.uk
Burden of Proof
The criminal courts frequently fail rape victims, and unfortunately this is by design. Not to fail rape victims specifically, but in the way the criminal courts err on the side of caution in the defendant’s favour. But rape is particularly difficult to prove, more so than other crimes, which magnifies the impact on those who have been raped.
As well as the knowledge that justice is very unlikely to occur, rape victims are dissuaded from coming forward due to the stigma and myths around rape, and the mistreatment of victims by the legal system. But if victims choose to pursue the matter in the civil courts, we need to consider why this is occurring, and what we should do about it.
We know that “reasonable doubt” and being sure of guilt in a criminal court is the highest standard of proof required in any proceedings, even though there is no formal definition of this standard. In some cases, juries have asked the judge to clarify what this actually means, and all that can be said is no more than a reiteration of the original phrase. In the case against Vicky Pryce, the jury requested that the judge define what was meant by “reasonable doubt”. His response was:
“a reasonable doubt is a doubt that is reasonable. These are ordinary English words that the law does not allow me to help you with”.
It appears that a lexicographer would have been a better help than the judge — but it isn’t their fault. “Reasonable doubt” has been accepted as the standard for centuries, based on what we commonly mean in ordinary speech. It has remained unchallenged until recently, perhaps because of changing cultural knowledge of factors that might lead one to question one’s own sense of doubt (like, for example, the knowledge that justice is not served on 94% of all rapes).
The notion that we don’t really know what reasonable doubt is, and how it compares to the balance of probabilities, causes a problem for jurors. For some people, these two terms could mean exactly the same thing, or in different circumstances we might define them differently to how we would view them in another situation. But there is the possibility, no, the likelihood, that jurors have acquitted defendants whose guilt they were confident of, due to a lack of clarity over which doubts are reasonable.
It’s certainly been at the forefront of recent coverage of several allegations made against high-profile men. Speculation over a victim’s intent when making allegations has dominated the conversation, but is it reasonable to think in these terms? There are numerous examples of accusers coming forward and having their lives destroyed, while the accused suffers little more than a momentary glitch in their career. The outpouring of support for men in already high places has been overwhelming, and based on the belief that women routinely lie about rape — a belief that has no basis in fact.
There’s a lot of talk among Good Men™ at the moment regarding so-called false allegations. So-called because a lot of…medium.com
As a society we are reconsidering if our doubts and beliefs about rape, and rape victims, are reasonable. Until women began speaking up en masse, there was no questioning of these cultural assumptions. Before women spoke out en masse, there was no-one holding powerful men accountable. And these powerful men did as they pleased with no reproach, and we held them in high esteem and obeyed their every word — because to do otherwise would result in our detriment.
But now that enough people, in a coordinated effort, have been held to account, and their deceit exposed, we are questioning what we thought was universally true. There is resistance, of course, from those who stand to lose out if they cannot maintain their control and dominance over women’s bodies and lives. But we’re beginning to see that such a demand, such entitlement, is actually pretty unreasonable itself.
It is likely that more rape cases will end up in the civil courts, and not just in Scotland. There have been a handful so far, and it seems to provide a means of delivering justice when the usual option has failed. But rape trials fail for many reasons, with mistakes and deficits all the way from the initial report through to the verdict.
The “not proven” verdict that can be reached in Scottish courts goes some way to validating a victim’s claim when there is not enough evidence to meet the necessary standard of proof, but it does look like the crime was real. For the victim, and for observers, it demonstrates that they were believed. For the defendant, the outcome is the same as if a “not guilty” verdict was given. There is no difference in consequences for them.
Because most rape trials hinge on the question of whether or not consent was given, it is extremely difficult to gather evidence that can prove that. It can be proven that sex occurred; that is rarely disputed. But we don’t seem to have found a way to record this agreement, or lack of it. Maybe we never will be able to.
We come back to the reliability of a victim’s testimony — do we believe them on the balance of probabilities, or do we believe them beyond all reasonable doubt? Of course it varies from case to case, but we must acknowledge the wrongful assumptions that have led us to exercise undue caution when examining claims of rape. Instead of looking for reasons to discredit accusers, maybe we should examine our own beliefs about perpetrators and victims, and ask whether our doubts are reasonable or not.
By extension, we should also consider if we are being reasonable in assuming there are dire consequences for being accused of rape. The amount of airtime given to those who claim to worry about wrongful convictions is disproportionate to both the actual number of wrongful convictions, and the coverage devoted to concern over wrongful convictions for other crimes.
While we stress the importance of reasonable doubt in a courtroom, we would do well to consider whether our own personal doubts are reasonable. Because if those doubts are dependent on the current narrative around rapists and their victims, we need to do a lot of self-examination.