Legal Procedure in Sexual Assault Trials

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“Law is the worst of the bunch…. I had no idea how deep the corruption in law had gotten until last year. ” Jordan Peterson.

Calls have been made to radically change the procedure in trials where rape or sexual assault is alleged.  The Minister for Justice has already announced a review of such procedures. A report prepared by an “expert group”, convened by Rape Crisis Network Ireland (RCNI), has said more “radical solutions” than trial-based procedures are needed.

The report, by the Vulnerable Witnesses Multi-Agency Group also calls for the pre-recorded evidence and cross-examination of vulnerable witnesses to be allowed on a much more widespread basis. It points to what it says are “outdated statutory provisions and rules of evidence, as well as accepted custom and practice” which “have not been adapted to any great extent to take account of the specific needs of individual vulnerable witnesses”.

“In many countries, it is normal to have victims of sexual crime give evidence by pre-recorded statement, by video link, or both, from outside court and in some, the practice is to pre-record the witness’s testimony and play the video in court, instead of obliging the victim to give live evidence”, the report says.

This would mean that a complainant’s evidence would not be tested in the courtroom in the light of conflicting evidence from other witnesses

This would mean that a complainant’s evidence would not be tested in the courtroom in the light of conflicting evidence from other witnesses or from the accused. Points of detail which have not previously emerged and germane to the case may require a witness to be recalled. If this is not allowed the possibility of a fair trial may be fatally compromised.

Note the use of language above. It refers to the “victim” or “victims of sexual crime” several times as though the case was already proven beyond reasonable doubt.

That this is part of an orchestrated international drive to radically change procedure in cases of sexual assault is supported by an article in  Quillette  in April 2018 which sets out in great detail the legal/philosophical background stretching back decades.

The article traces the history of critical legal theory and its roots in postmodernism and asserts that core legal concepts such as the burden of proof, presumed innocence and legal certainty are under attack.

Critical legal theory steadily grew in influence in the 80s and 90s until it became integrated into many law schools and, in the words of Cornell Law School, it “permanently changed the landscape of legal theory.”

Critical legal theory and especially its substrata Critical Race, Gender and Feminist Legal Theory, have been integrated into legal education at schools such as Harvard, Boston, Colombia, UCLA, Georgetown, Melbourne, Glasgow and Kent.

Core legal concepts such as the burden of proof, presumed innocence and legal certainty are under attack

The article goes on: Old-fashioned concepts such as due process are thought to be so imbued with systemic oppression that they can be safely set aside. This mind-set is perhaps best exemplified in the design of the kangaroo court system created to adjudicate allegations of sexual misconduct at American universities, so-called Title IX offences.

As part of the Title IX process, the lowest possible burden of proof was adopted, and severe restrictions were placed on the ability of the accused to question the account of the accuser. Ignoring due process, many schools appointed a single staff member to act as detective, prosecutor, judge and jury.

The intention is to abandon the tried and tested procedure of due process and abolish the fundamental principle of our law that an accused person is presumed innocent until proven guilty.

There is also the notion that certain procedures are old fashioned: “outdated provisions and rules of evidence” and requiring the witness to be present in court.

There have been continuous calls in recent years from groups such as the RCNI to change the laws on evidence in order to increase the conviction rate in sexual assault cases. The claim is that the conviction rate remains at around 5%. But this is based on the number of cases which result in conviction compared to the total number alleged in a given year, some of which are later withdrawn, and most of which never go to court. Commenting on this “repeated myth”, a UK barrister notes that once rape cases reach court nearly 60% result in convictions.

Janice Fiamengo, a professor at the University of Ottawa, has commented on the radical feminist notion of Affirmative Consent, which is now being aggressively pushed on legislators in western countries. Indeed, Fiamengo claims that the feminist theory of “affirmative consent”, cited many times by the judge in a recent case in Canada, turns almost all types of sex into rape. Affirmative consent requires a verbal yes, must be ongoing throughout a sexual encounter, and can be revoked at any time.

The intention is to place the consent burden on the accused; the accused will have to prove the other person consented.

But silence or lack of resistance does not demonstrate consent. According to Fiamengo this means the man can never be sure that he is acting correctly. The intention is to place the consent burden on the accused; the accused will have to prove the other person consented.

The article comments on a further ominous development in relation to “hate crime”: Elsewhere legislation against crimes intended to protect the “oppressed”, such as “hate speech”, are poorly defined, leading to concerns about free speech since it is difficult to know what can be said.

Meanwhile in Canada, under Bill C-16 the law is used to compel speech (the law compels people to use the preferred pronouns a transgender person says should be used).

Any one of these demands taken on its own would give cause for real concern; taken together they portend a future of unparalleled bleakness.