The Dim-Post

April 15, 2016

So I say ‘for justice we must go to Don Duncan Greive’

Filed under: Uncategorized — danylmc @ 1:09 pm

Via John Drinnan in the Herald:

Lawyers have been called in over an article on the pop culture website The Spinoff, which reports allegations about a man said to be well-known in the music industry.

The website recounts sexual harassment claims against the man, based on interviews with women who said they had dealings with him.

The allegations have been made at a time of intense concern about society’s attitude to abuse of females, and the way such claims are sometimes treated.

But ignoring for a minute the substantive issues, in my opinion the coverage raises issues over the growing trend towards trial by social media.

At this stage, police have only begun to look at the claims, but there is a risk that people might form conclusions based only on the allegations in the article.

Spinoff owner Duncan Greive says the website took a lot of time considering the issues involved in running the article, which he says was clearly displayed as the women’s view of events. Several journalists have since held up the report as an example of good journalism.

I asked Greive whether the coverage was a case of trial by internet. He said that been happening for a long time, and he was comfortable with the way the claims had been dealt with.

The man’s lawyer says he is considering his options.

The Spinoff article is here.

Firstly, as the opening scene of The Godfather points out, if the criminal justice system is broken then people route around it. These workarounds are always less optimal than having an effective criminal justice system. The solution to that, in this case, is to fix the justice system’s demonstrable inability to punish or deter the majority of sexual offenders, not to question the work-arounds. The government is always quick with ingenuous fixes and compromises to the justice system and its principles when, say, the revenue streams of copyright holders or the powers of the security services are threatened, so it would be nice to see that ingenuity put to use to protect actual living humans from sexual assault.

Secondly, I intend to start using the phrase ‘But ignoring the substantive issues . . .’ until it stops being funny and becomes annoying, and then for quite a long time after that.

115 Comments »

  1. Because sexual abuse is as easy to deal with as copyright. Sorry, there’s a big difference between something that can be objectively measured and assessed, and accusations of a “he said she said” nature where only two people were in the room. The alleged perpetrators have rights as well, and our legal system has been very careful traditionally around the concept of “beyond reasonable doubt.” You can suggest changing the standard of proof to “balance of probabilities”, but I definitely wouldn’t support that. Is there some other idea you have for how to deal with this?

    Comment by PaulL — April 15, 2016 @ 1:27 pm

  2. An awful lot of people assumed that “a prominent New Zealander” was guilty of similar offences to those described in the Spinoff article. A High Court jury decided otherwise. Does that mean the law is working correctly, or not? It depends in large part on who you believe and what evidential threshold you think should be met before we convict someone and punish them. Lowering the threshold from the current standard of beyond reasonable doubt or relaxing the rules of evidence would no doubt result in more convictions, but at the risk of convicting innocent people.

    There aren’t any “right” answers here. Rather, it is a matter of deciding what we value more: vindication of victims of sexual assault (or crime generally) or the right of innocent people not to be convicted. Currently we prioritise the latter over the former, to the detriment of victims of sexual assault.

    Comment by Nick R — April 15, 2016 @ 2:00 pm

  3. PaulL I don’t think it’s fair that you assess this situation as “he said she said”. If you read the article you’d know it’s 4 or 5 young woman telling very similar stories about 1 man, backed up with detail including screen shots of chat logs. In response the man in question issued via facebook a blanket denial, basically saying all these woman were lying about everything. There is no 50/50 balance here and there is no motivation that I can see for all of these woman, mostly around 20 years this guys junior, to just make it all up.

    Comment by Jason — April 15, 2016 @ 2:08 pm

  4. our legal system has been very careful traditionally around the concept of “beyond reasonable doubt.”

    Our legal system has carefully traditionally been built around a bunch of concepts like ‘trial by jury’ and protection against retrospective legislation which have recently been abridged without anyone caring, especially. So it seems weird that when you start talking about fixing the problems around sexual assault everyone goes ‘Whoa! The traditions of the legal system cannot EVER be compromised’, when they are compromised all the time and no one really cares.

    I’m not saying I have all the answers, but say we did move to a balance of probabilities system. That might result in a few unjust convictions. Which would be sad. But unjust convictions happen anyway, and it would also result in people being prosecuted and convicted for terrible crimes which they currently consistently get away with.

    Comment by danylmc — April 15, 2016 @ 2:08 pm

  5. Danyl, why do you think unjust convictions are less sad than not convicting people who commit sexual assaults?

    Comment by Nick R — April 15, 2016 @ 2:23 pm

  6. why do you think unjust convictions are less sad than not convicting people who commit sexual assaults?

    I think there would actually be very very few unjust convictions, and many sexual assaults punished, and many, many more prevented/deterred by a more effective justice system.

    Comment by danylmc — April 15, 2016 @ 2:41 pm

  7. why do you think unjust convictions are less sad than not convicting people who commit sexual assaults?

    I’m interested in this too, as it’s a peculiar position to take.

    It’s also silly to conflate changes in jury representation and retrospective legislation – which plenty of people were pissed about btw.
    These changes will affect a subset of the population and some specific mechanisms within the legal system. The notion of retrospective legislation is awful but likely to be politically motivated and limited in scope, and it’s not as if the restriction of juries – also awful – will realistically lead to a scenario of kagaroo courts.

    However, any changes to the evidential process will affect every single citizen who has to deal with the Police / CPS, from the smallest infringement through to major crimes – processes which are in place to protect actual living human beings from miscarriages of justice.

    Comment by Gregor W — April 15, 2016 @ 2:50 pm

  8. So a few (or a lot) more Teina Poras is a price worth paying pour encourager les autres? Yeah, nah.

    Comment by Nick R — April 15, 2016 @ 3:03 pm

  9. I think there would actually be very very few unjust convictions…

    OK, so when you are convicted on balance of probabilities rape one of your students (you were alone in the same room, your a male mentor in a position of power, limited physical evidence other than that some form of sexual connection occurred in an established 24 hour period though not definitely between you and the student etc. ) you’d be OK going to prison for a term not exceeding 20 years?

    Comment by Gregor W — April 15, 2016 @ 3:09 pm

  10. @6

    “I think there would actually be very very few unjust convictions, and many sexual assaults punished, and many, many more prevented/deterred by a more effective justice system”

    You’ve lost me Danyl. Slippery slope and all that. I couldn’t agree with you less this time.

    Comment by Joe-90 — April 15, 2016 @ 3:12 pm

  11. I think that the key is still simply priorities and resourcing.

    If the police (and other elements of the justice system) were better resourced and prioritised to deal with sexual assault cases, then there would be more successful convictions.

    Comment by RJL — April 15, 2016 @ 3:55 pm

  12. I honestly don’t get Drinnan’s point. What Grieve, et al did is called “journalism”. They identified a possible story – the repeated predatory behaviour of an individual towards younger (and simply young) women. They chased it down, with extensive interviews with the women making the claims to establish credibility (including seeing actual records of conversations with the bloke involved). They gave the bloke involved every opportunity to tell his side of the story, but he refused because he says it just didn’t happen. Then they literally put their business on the line by publishing – because if this is wrong, then the damages for defamation will flatten them.

    Had this had been the NZ Herald’s story involving (say) an All Black or (say) someone like Rolf Harris, Drinnan would be praising it to the skies as a textbook example of the media giving a voice to the voiceless. So Drinnan’s only possible complaints would then seem to be limited to two things:

    (1) This guy didn’t deserve the kind of intense public scrutiny of his behaviour because who the hell is he anyway? Which shows that Drinnan has no knowledge of the subculture involved and this bloke’s place within it. If he genuinely was a no-body, then Grieve et al wouldn’t have published and social media wouldn’t have jumped. This isn’t a Ronson-style “shaming” of some random person unlucky enough to catch twitter’s attention.

    (2) This appeared on the interweb and lots and lots of people discussing it on social media, rather than in a newspaper with people talking about it over coffee in the smoko room. That’s just not right!!!!! The media shouldn’t work that way!!!!!

    Comment by Andrew Geddis — April 15, 2016 @ 3:58 pm

  13. @9 Gregor W.

    Hypothetical situations that don’t actually happen aren’t a good argument against addressing the existing problems with justice around sexual assault. Right now, there are massive real problems happening with justice (and prevention) for sexual assault. That’s the problem. Deal with that.

    If we find that in the world there are massive problems with men being falsely accused and convicted of sexual assault, then we can deal respectfully and sensibly with that problem. But unless it is actually happening, it isn’t a problem.

    Comment by RJL — April 15, 2016 @ 4:02 pm

  14. I think there would actually be very very few unjust convictions, and many sexual assaults punished, and many, many more prevented/deterred by a more effective justice system.

    Well, that’s a prediction based on hope alone, which isn’t usually a good basis for changing things. Like Nick R said, if you’re going to go down this line you need to look Teina Pora in the eyes and tell him that he’s just roadkill on the road to road to greater societal happiness. Better do it to Peter Ellis, too.

    Having said that, there are other alternatives to just changing the threshold at which we put people into prison for very, very long periods of time for sexual offending: http://www.radionz.co.nz/news/national/301532/'roast-busters'-drives-calls-for-sexual-violence-court

    Comment by Andrew Geddis — April 15, 2016 @ 4:05 pm

  15. hypothetical situations that don’t actually happen aren’t a good argument against addressing the existing problems with justice around sexual assault.

    RJL – the thing is, it’s not hypothetical.

    Addressing the comments above, people are wrongly being put behind bars with the existing evidential threshold. It’s an actual problem.
    Danyl’s position that sexual assault would occur less frequently if the conviction threshold were to change is not supported by any other fact base other than he reckons.

    Furthermore, how could any reasonable person conclude that conclude that by relaxing the evidential threshold for sexual assault, more false convictions wouldn’t naturally result.
    Who decides how many false convictions are ‘acceptable’ as a side affact of (presumably) putting away more rapists?
    How can you deal “respectfully and sensibly” where someone has been lawfully but unjustly deprived of their liberty, which ultimately, didn’t rely on conclusive proof?
    Also, why stop at sexual assault? Why not murder?

    Comment by Gregor W — April 15, 2016 @ 4:29 pm

  16. @ Andrew Geddis “..you need to look Teina Pora in the eyes and tell him that he’s just roadkill on the road to road to greater societal happiness. Better do it to Peter Ellis, too.”

    I would argue that those cases were ultimately to do with poor resourcing and prioritising of the police / prosecution.

    If the police / prosecution were better resourced they could have spent better skilled / more effort on finding true perpetrators, rather than trying to plough ahead with “good enough” suspects.

    Comment by RJL — April 15, 2016 @ 4:30 pm

  17. OK, so when you are convicted on balance of probabilities rape one of your students (you were alone in the same room, your a male mentor in a position of power, limited physical evidence other than that some form of sexual connection occurred in an established 24 hour period though not definitely between you and the student etc. ) you’d be OK going to prison for a term not exceeding 20 years?

    A student could do that, I guess. They could also, on any given day, drive around to my house and smash all the windows. Or kill me by poisoning my tea with a carcinogenic. But none of these things ever happen, because people tend not to to pointless destructive things for no gain.

    Here’s a slightly more developed thought on the subject. We have the Serious Fraud Office (whose suspects have no ‘right to silence’) to investigate white collar crime the police aren’t equipped to deal with. What if there was an equivalent for sexual offences? Someone complains, they probably get told ‘Sorry, there’s not enough evidence to convict’. The accused might be warned by the office of the complaint (if the victim consents). A second complaint is made against the same person. It is compared to the first, and if a pattern of behaviour exists then the authority investigates looks for more victims and prosecutes the cases together.

    Comment by danylmc — April 15, 2016 @ 4:34 pm

  18. But none of these things ever happen, because people tend not to to pointless destructive things for no gain.

    I didn’t ascribe motive. It’s a hypothetical.
    Maybe you gave her a D. Maybe she’s just plain crazy. Who knows what imaginary people are like.
    But the point still stands. You’d sleep well in your cell at night knowing that justice had been served on the balance of probabilities?

    Re your more developed line of thinking, I’m pretty sure Police are free to issues cautions now if they believe there were legitimate grounds for complaint, but that the evidence is circumstantial / there would be no chance of securing a conviction. Just because a complaint isn’t followed up on (for whatever reason) doesn’t mean it isn’t logged and later, open to correlation.

    Also, I’m fairly sure that complaint correlation is a pretty standard part of the investigative process in order to build a case against a serial offender, regardless of the crime.

    Comment by Gregor Ware grounds for a complaint. — April 15, 2016 @ 4:49 pm

  19. But none of these things ever happen, because people tend not to to pointless destructive things for no gain.

    I didn’t ascribe motive. It’s a hypothetical.
    Maybe you gave her a D grade. Maybe she’s just plain crazy. Who knows what imaginary people are like.
    But the point still stands. You’d sleep well in your cell at night knowing that justice had been served on the balance of probabilities?

    Re your more developed line of thinking, I’m pretty sure Police are free to issues cautions now if they believe there were legitimate grounds for complaint, but that the evidence is circumstantial / there would be no chance of securing a conviction. Just because a complaint isn’t followed up on (for whatever reason) doesn’t mean it isn’t logged and later, open to correlation.

    Also, I’m fairly sure that complaint correlation is a pretty standard part of the investigative process in order to build a case against a serial offender, regardless of the crime.

    Comment by Gregor W — April 15, 2016 @ 4:51 pm

  20. I think there’s a lot to like about a specialised agency that deals with sexual violence. I don’t think one of those things is prosecutions that are based on “look at all the other times he got accused of this, no smoke without fire amirite fellas”.

    Comment by Trouble Man — April 15, 2016 @ 4:52 pm

  21. “The solution to that, in this case, is to fix the justice system’s demonstrable inability to punish or deter the majority of sexual offenders, not to question the work-arounds.”

    Good idea, so let’s have a look at the numbers.

    90.7% of sexual offences go unreported. The leading actual surveyed reasons for non-reporting of sexual assault are that 43% of victims considered it a private matter and 37% of victims were shameful. Only 13% of victims were reluctant to come forward, because they thought there was a lack of evidence to allow prosecution.

    “…say we did move to a balance of probabilities system. That might result in a few unjust convictions. Which would be sad. But unjust convictions happen anyway, and it would also result in people being prosecuted and convicted for terrible crimes which they currently consistently get away with.”

    No. It would mean the huge majority of sexual offences are still unreported.

    Then there is the problem of wrongful convictions, as they increase this will provide the people who are shaming the victim with more ammunition with which to shame the victim.

    http://www.rethinking.org.nz/assets/Young_People_and_Crime/NZCASS_2009.pdf

    Comment by unaha-closp — April 15, 2016 @ 5:00 pm

  22. I didn’t ascribe motive. It’s a hypothetical.
    Maybe you gave her a D grade. Maybe she’s just plain crazy. Who knows what imaginary people are like.

    Students can also do that now though. They might not get a conviction, but they’ll still get an investigation, and inquiry, cause massive emotional and family and career turmoil. It never happens though.

    Comment by danylmc — April 15, 2016 @ 5:00 pm

  23. I guess people approve of trial by journalist or other informal justice systems if they think the cause is righteous. But one ,man or woman’s righteous is another’s grave injustice. The Southern states of the US had very effective informal justice systems alongside and also inside their formal justice systems to police interracial sexual contact. They worked well for Southern males and females, not so much for African-Americans

    Comment by Tinakori — April 15, 2016 @ 5:01 pm

  24. I’m not sure what your point is, Danyl.
    To ask the question for a third time – You’d sleep well in your cell at night knowing that justice had been served on the balance of probabilities?

    Comment by Gregor W — April 15, 2016 @ 5:09 pm

  25. People often mention the massive disparity between number of sexual offences that happen, get reported, and get a conviction. I’m curious how these compare with other offences – are most assaults or property offences reported? Most people I know only report burglaries for insurance purposes, not with the expectation that someone will be prosecuted. Basically, I’m wondering if the 90.7% of sexual offences being unreported is unusual for crimes.

    Comment by prez — April 15, 2016 @ 5:28 pm

  26. That should be “white southern males and females!”

    Comment by Tinakori — April 15, 2016 @ 5:33 pm

  27. Also, I do feel very uncomfortable with the number of people on the left, normally strongly in favour of the rights of the accused, who resort to talk-back radio ‘if they’re accused they must be guilty, no smoke without fire, bring back capital punishment’ when the accusations are sexual in nature.

    I’d like to be able to advocate for the rights of the accused without being ostracised by my online and irl left-wing communities.

    Comment by prez — April 15, 2016 @ 5:34 pm

  28. To ask the question for a third time – You’d sleep well in your cell at night knowing that justice had been served on the balance of probabilities?

    I would! Because I think the chances of my ending up in that cell are pretty close to zero. I have zero concerns that if the laws around sexual assault get changed a bunch of crazy chicks are going to jump up and falsely accuse me for no reason.

    Comment by danylmc — April 15, 2016 @ 6:11 pm

  29. I would! Because I think the chances of my ending up in that cell are pretty close to zero.

    I’m sure everyone sent down on weak evidence thinks exactly the same way.
    But the bast way to ensure that this situation is minimised is to maintain the status quo; beyond reasonable doubt.

    I have zero concerns that if the laws around sexual assault get changed a bunch of crazy chicks are going to jump up and falsely accuse me for no reason.

    Thats not my point. But you know that already.

    Comment by Gregor W — April 15, 2016 @ 6:26 pm

  30. The “but Teina Pora and Peter Ellis” argument seems off to me, given that both those people were convicted on the reasonable doubt standard, and shouldn’t, I expect, have been convicted even on the balance-of-probabilities standard. (i.e I would not convict either of them on balance of probabilities let alone or on reasonable doubt.) Surely the problem there is that miscarriages of justice happen, not the evidential standards applied?

    Comment by Keir Leslie — April 15, 2016 @ 7:33 pm

  31. @Kier – that’s quite likely true.

    However, if your liberty was at stake, what standard of evidence would you prefer?

    Furthermore, if that standard was to be reduced, what do you deduce the outcome would be in terms of the potential for wrongful conviction in any given case?

    Comment by Gregor W — April 15, 2016 @ 7:44 pm

  32. To all those putting up appeal to emotion defenses here, would you let that certain “Prominent New Zealander” babysit your children?

    Comment by Mike — April 15, 2016 @ 7:55 pm

  33. Have you stopped beating your wife, Mike?

    Comment by Gregor W — April 15, 2016 @ 8:00 pm

  34. “A student could do that, I guess. They could also, on any given day, drive around to my house and smash all the windows. Or kill me by poisoning my tea with a carcinogenic. But none of these things ever happen”

    So I guess you’re in favour of a balance of probabilities system for murder as well?

    Comment by Ortvin Sarapuu — April 15, 2016 @ 8:10 pm

  35. Yeah. Never could happen danylmc:

    http://www.independent.co.uk/news/uk/home-news/man-falsely-accused-of-sexually-assaulting-actress-feels-like-he-has-undergone-mental-torture-a6867366.html

    Reports like above worry me greatly. Your comments and views about this only worry me further.

    Comment by Andrew M — April 15, 2016 @ 8:15 pm

  36. It is curious that sexual crime seem to be the one area of the justice system where the left – at least in its comfortable middle-class configuration – is quite comfortable to join the right-wing calls for more convictions, tougher punishments, harsher deterrence, a lower evidentiary standard. Why is it, I wonder, that this one type of crime – diverse and complex as it is – brings out all the latent hang-’em-high instincts in otherwise-bleeding-heart liberals? And why does this punitive attitude to sexual assault still prevail among the hoodie-huggers despite an abundance of empirical evidence suggesting that its assumptions are wrong and that its proposed solutions (deterrence! prevention! incarceration!) are no solutions at all?

    Comment by Higgs Boatswain — April 15, 2016 @ 9:22 pm

  37. Higgs – an over-abundance of the super-ego?

    Comment by Gregor W — April 15, 2016 @ 9:42 pm

  38. “It is curious that sexual crime seem to be the one area of the justice system where the left – at least in its comfortable middle-class configuration – is quite comfortable to join the right-wing calls for more convictions, tougher punishments, harsher deterrence, a lower evidentiary standard.

    This is about “othering” and latent (or not so latent in some cases) racism, it thrives on fear, and feeds on perceived vengeance. The Sensible Sentencing Trust and co stand for most of the things you have listed there, but they don’t stand for a “lower evidentiary standard” as such, they do for example stand for unfair lawyers and denying the accused fair representation, but not as far as I have seen a lower evidentiary standard. Ultimately they stand for getting one up on the poor, brown, “other”.

    Why is it, I wonder, that this one type of crime – diverse and complex as it is – brings out all the latent hang-’em-high instincts in otherwise-bleeding-heart liberals?

    Because we see real people around us suffering real harm at epidemic rates, and a system that fails victims by the thousands. We aren’t out for vengeance and blood lust like those referred to above, in fact you’ll find most of us would want offenders sentenced to somewhere where they will receive proper treatment.

    Comment by Mike — April 15, 2016 @ 10:00 pm

  39. “Why is it, I wonder, that this one type of crime – diverse and complex as it is – brings out all the latent hang-’em-high instincts in otherwise-bleeding-heart liberals? And why does this punitive attitude to sexual assault still prevail among the hoodie-huggers despite an abundance of empirical evidence suggesting that its assumptions are wrong and that its proposed solutions (deterrence! prevention! incarceration!) are no solutions at all?”

    I’m not sure you have been reading what most liberals and feminists have been saying, coz it’s not really the same as the hang ’em high brigade at all. Mostly, they say things like , ‘why are conviction rates so low when surveys show there is an awul lot of sexual assult going on?’. and ‘why do we blame the victims of sexual assault in ways that victims of othe crimes are not blamed?’, and ‘we should educate boys not to grow into men twho treat women as objects that owe them sex’. Stuff like that.

    But to turn it around, why is that the hang ’em high brigade are so very concerned about the rights of the accused in sexual assult cases? It’s simply not the case that the ‘left’ agree with the talkback right about secual assault. The sorts of arguments in comments on this are what you’ll get on talkback, or in kiwiblog comments. Perhaps less refined and more blatant.

    Comment by shakingstick — April 15, 2016 @ 10:08 pm

  40. Unfair I know in the context of a Dim Post discussion, but here are some good discussions on the evidence around false accusation rates

    http://www.slate.com/articles/double_x/doublex/2014/09/false_rape_accusations_why_must_be_pretend_they_never_happen.html

    http://www.slate.com/articles/news_and_politics/jurisprudence/2009/10/how_often_do_women_falsely_cry_rape.html

    Comment by Tinakori — April 15, 2016 @ 11:55 pm

  41. “I’m not sure you have been reading what most liberals and feminists have been saying, coz it’s not really the same as the hang ’em high brigade at all.”

    Maybe not mostly, but Danyl is saying exactly that, right here. Is it really unfair for commenters to respond to the point the OP is making just because his views aren’t widely shared among his ideological compatriots?

    Comment by Ortvin Sarapuu — April 16, 2016 @ 3:28 am

  42. There are people who work with sexual assault victims – Rape Crisis etc. They probably have a pretty good idea what the problems with the system are. I wonder what kind of solutions they tend to advocate??

    A.

    Comment by Antoine — April 16, 2016 @ 3:50 am

  43. I read the article, and I have to say that as it is written it indicates a ‘balance of probabilities’ that go beyond a guy who may have in the showbiz milieu, strayed or erred because he was under the impression that his musical interests gave him and his female friends some kind of licence to get romantic.

    The article indicates a series of allegedly predatory situations which have caused considerable distress for the alleged victims of this: youngsters (gender aside) who have been coerced into doing things by a more sophisticated adult for the purposes of that adult’s sexual gratification.

    If this is true, then it requires evidence to be weighed properly. So for the accused to refuse to add any other information does not equate to being an indication of his guilt, and should not be read as such. It may ‘look bad’ but he will be acting upon legal advice. If it was your own father he would get the same advice. I dare say the accusers will now be advised to keep any other information out of the public domain.

    As for ‘where there’s smoke there’s fire’ I think it is ridiculous to use that as a basis for convicting anyone, (not even witches). The person cited in the article may be able to refute the claims, provide evidence to the contrary and show that the evidence is fabricated, circumstantial and does not suggest a sequence of predation – or not.

    Any gut feelings I have that someone is a creepy borderline sociopath with paedophilic tendencies don’t count as evidence.

    Comment by leeharmanclark — April 16, 2016 @ 7:44 am

  44. @Danyl,

    I would! Because I think the chances of my ending up in that cell are pretty close to zero.

    But someone is going to wrongly end up in a cell if we introduce “compromises to the justice system and its principles” in order to increase the conviction (and imprisonment) rates of sexual offenders. You are a scientist. Lower the confidence level at which you accept a result as meaningful and you will get false positives. So, if you are happy it won’t be you who wrongly ends up in jail, who are you prepared to wrongly jail instead? Because even with a lower standard of proof, rich(ish) middle class professionals like you and me (or Mr Prominent NZer) will still have good lawyers who we can be sure will run adequate defences. Other groups in society? Maybe not so much?

    @Keir Leslie,

    Surely the problem there is that miscarriages of justice happen, not the evidential standards applied?

    Yes – but to repeat, if you lower evidential standards, then you will get more false positives (i.e. wrongful convictions). Teina Pora and Peter Ellis are then the human faces of what that means in practice – as is, I should note, David Doherty (who, we should note, was wrongfully convicted of sexual offending not due to “a bunch of crazy chicks … jump[ing] up and falsely accus[ing]” him, but simply that the girl involved misidentified him).

    I guess it may be argued that producing even more examples of such wrongful convictions is a price worth paying in order to “give justice” to women currently unable to get it through the existing trial system, but anyone who does argue that has to be upfront about the costs they are prepared to impose on some unlucky individuals to achieve this wider social good.

    @ Higgs Boatswain

    And why does this punitive attitude to sexual assault still prevail among the hoodie-huggers despite an abundance of empirical evidence suggesting that its assumptions are wrong and that its proposed solutions (deterrence! prevention! incarceration!) are no solutions at all?

    At the risk of repeating myself, there’s far more nuanced thinking about this issue going on than simply saying “make it easier to lock people up”: http://www.radionz.co.nz/news/national/301532/'roast-busters'-drives-calls-for-sexual-violence-court

    Also this: http://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/volume-45,-issue-4/11-McDonald.pdf

    Comment by Andrew Geddis — April 16, 2016 @ 9:06 am

  45. @Andrew – I don’t think that changing the burden of proof would lead to more cases like Pora or Ellis, because those cases weren’t flawed in that manner. The question of burden of proof is completely orthogonal; the problem was to do with incompetent and/or bigoted police work, not to do with comparatively technical aspects of the trial process. (The fix was in by the time the court sat, if you want to put it crudely.)

    Both Pora and Ellis should have been acquitted on a balance-of-probabilities test. They aren’t people who were in a fuzzy middle ground, they were just stitched up.

    Comment by Keir Leslie — April 16, 2016 @ 10:42 am

  46. @Keir,

    I think we’re using the word “like” in different ways.

    I’m saying reducing the burden of proof (while leaving other aspects of the criminal justice system unchanged) will lead to more cases “like” Pora/Ellis/Docherty in that there will be more people put into jail for offences they did not commit (which is what happened to them, for whatever particular reason). To see the effect of being imprisoned when innocent, we can then see what things were “like” for them. Such experiences are then something we need to factor in when considering what criminal justice reforms to adopt in relation to sexual offences. And that is all.

    Comment by Andrew Geddis — April 16, 2016 @ 11:53 am

  47. AG @44,

    thanks, those links are very interesting

    Comment by Antoine — April 16, 2016 @ 12:09 pm

  48. Omg this work has already been done by those who work with survivors and perpetrators of sexual violence, Real Rape to Real Justice, recommendations made for alt trial methods that serve the truth more than the system and support both sides rather than retraumatise the victim. Read that and lobby govt to unshelve it if you really care about this issue.

    Comment by Renée — April 16, 2016 @ 4:24 pm

  49. Shifting the burden of proof seems a terrible idea, since it isn’t really “he said vs she said” in these cases but “the state says vs he says” and the state has vastly more resources than the average individual such that a burden of proof standard would be unfair for that reason.

    We might ask ourselves how our normal standards of sexual behaviour make it harder to believe victims of sexual assault and harder to convict offenders in many cases.

    Comment by L — April 16, 2016 @ 7:20 pm

  50. But someone is going to wrongly end up in a cell if we introduce “compromises to the justice system and its principles” in order to increase the conviction (and imprisonment) rates of sexual offenders. You are a scientist. Lower the confidence level at which you accept a result as meaningful and you will get false positives. So, if you are happy it won’t be you who wrongly ends up in jail, who are you prepared to wrongly jail instead? Because even with a lower standard of proof, rich(ish) middle class professionals like you and me (or Mr Prominent NZer) will still have good lawyers who we can be sure will run adequate defences. Other groups in society? Maybe not so much?.

    Sure. And you’d want to think more carefully about it than the ten seconds I spent blatting out my blog comment, and try to minimise injustices. But a point I’d make about the questions about innocent men being sent to prison if we change the status quo, and how many can I accept is that the status quo is not neutral. It’s a system that fails to punish or deter a large category of sexual assaults. So the flip side to that question is ‘How many rapes etc are you comfortable failing to prevent or punish by maintaining the status quo?

    Comment by danylmc — April 16, 2016 @ 7:45 pm

  51. It’s a system that fails to punish or deter a large category of sexual assaults. So the flip side to that question is ‘How many rapes etc are you comfortable failing to prevent or punish by maintaining the status quo?

    It certainly fails to punish them, and changing the law would change that. But why do you think it would deter them?

    Comment by Graeme Edgeler — April 16, 2016 @ 8:08 pm

  52. “Shifting the burden of proof seems a terrible idea, since it isn’t really “he said vs she said” in these cases but “the state says vs he says” and the state has vastly more resources than the average individual such that a burden of proof standard would be unfair for that reason.”

    Except that in court, in cases where the only witnesses are the accused and the complainant and there is no supporting evidence, it really is ‘he said she said’. The two versions of what did or didn’t happen are all the evidence there is, and the resources of the state don’t really amount to a hill of beans in changing that.

    Further to that, the complainant will be cross examined about something that, when true, is pretty traumatic. The accused however, will very often not take the stand and face that process. So while there are hard issues to consider, I’m not really sure this is one of them.

    Comment by shakingstick — April 16, 2016 @ 8:24 pm

  53. “But a point I’d make about the questions about innocent men being sent to prison if we change the status quo, and how many can I accept is that the status quo is not neutral. It’s a system that fails to punish or deter a large category of sexual assaults. So the flip side to that question is ‘How many rapes etc are you comfortable failing to prevent or punish by maintaining the status quo?”

    If you go down this road, you are more or less requiring the state to engage in both telishment and collective punishment.

    Comment by L — April 16, 2016 @ 8:34 pm

  54. I actually sat on a sex abuse jury a few years back. The first day had the victim video interview. By the end of it, we were ready to convict. The second day the defence went full ham on the girl (who never appesred in court, all video link) all the usual, explicit, grubby stuff. By the end of an hour, the girl (young, disadvantaged, Polynesian) was gone. The thing is though, it was clear from all sorts of inconsistent testimony much of her statement had been a farrago. The trial collapsed when she refused to come back. So there is the conumdrum. On the one hand, I got to see exactly the sort of questions that get asked and how easy it is break a young girl. On the other, it turned out that she had possibly made it all up to get back at a family member trying to keep her from slipping into a life of criminality.

    The thing is the consequences of conviction are catastrophic, especially in sex abuse cases. And the crown has all the resources. It pays the judges, owns the courthouse, has a powerful police force with all the extraordinary powers of investigation they ask for, it picks the brightest minds to be QCs, has skilled interviewers, a sympathetic media, and will never run out of money. All the defendant has got is the presumption of innocence, a lawyer, a jury with no vested interest in the system and some important, unalienable rights. The deck is already incredibility stacked against him or her. Just ask anyone who has ever been charged for any offence if they felt the crown was having any trouble marshalling the resources it needed. Oh even being found not guilty isn’t going to stop the plod (who assume the right to infallibility) from routinely putting it about that you only got off on a slight of wicked legal jiggery-pokery from some city slicker lawyer and “everyone in the courthouse” knew you were guilty as sin. People trust their local cops, even if they lie through their teeth all the time.

    The argument that because the SFO has been given the outrageous power to deny you the right to silence, therefore why not extend it to something is classic slippery slope. How about instead of demanding the state strip away more of our freedoms and rights to satisfy your need to get more convictions for your crime de jour, how about we regard it as an infamous attack on our ancient rights, and agitate to roll it back? Or how about we just presume your guilty, strip your right to silence and ditch habeus corpus so after a bit of waterboarding in a secret location you provide a nice, signed confession?

    Even using a special investigator to determine fact is straying to far from the common law for my taste, in our system the jury decides the facts, the judge knows the law. Long may that reign.

    Sexual crime is a social and cultural issue that needs to be dealt with a society and community level. The only good sex crime is the one that never happened. At the end of the day the legal system has all the resources it needs. It just isn’t that good with dealing with societal issues where people behave en mass in variance with the law. Surely the war on drugs has taught us that. It should not be allowed to extinguish important rights because smug middle class people like Danyl who think the criminal justice system is an abstract idea for lesser mortals demand something be done.

    Comment by Sanctuary — April 17, 2016 @ 6:02 am

  55. BTW if anyone has wondered where I have been (which I am sure you did not) I will just say I have often been curious as to how other countries public health systems compare to ours. My curiosity has been perfectly satisfied.

    Comment by Sanctuary — April 17, 2016 @ 6:07 am

  56. “BTW if anyone has wondered where I have been…”

    You’ve been in Spain. You’ve barely been able to shut up about it. Good for you, but nobody cares.

    Comment by Ortvin Sarapuu — April 17, 2016 @ 7:18 am

  57. I so often think of the old adage about when one points the finger, he should remember that three are pointing back at himself when I read some stuff here. And yup, I include myself in that…

    Comment by leeharmanclark — April 17, 2016 @ 7:44 am

  58. Can’t help wondering, Danyl, if this is first and foremost about you trying to mend fences with some of your more virulent critics on Twitter ?

    Comment by swordfish — April 17, 2016 @ 9:27 am

  59. Renée: “this work has already been done by those who work with survivors and perpetrators of sexual violence, Real Rape to Real Justice, recommendations made for alt trial methods that serve the truth more than the system and support both sides rather than retraumatise the victim. Read that and lobby govt to unshelve it if you really care about this issue.”

    Or at the very least read an account like this one.

    We presently have a system which systematically re-traumitises victims, extending and sometimes amplifying their pain for years at a time so that they can’t let go and move on from what might already have been a traumatic or unsettling experience. All of this comes with only a moderate-at-best chance that a conviction will ever be gained. It should be no wonder that so many victims simply throw up their arms and don’t bother to take part, resulting in perpetrators who continue to offend in exactly the same way again and again, supported by a system that makes it excruciatingly taxing for any of their victims to do anything about it.

    Comment by izogi — April 17, 2016 @ 2:13 pm

  60. Or at the very least read an account like this one.

    The writer of that article faced the accused in three trials. Why did three juries fail to convict? Maybe the evidence was weak.

    Better evidence will lead to more convictions.

    Comment by Ross — April 18, 2016 @ 8:20 pm

  61. “The writer of that article faced the accused in three trials. Why did three juries fail to convict? Maybe the evidence was weak.”

    Yes, perhaps.

    But if “not enough evidence” was the central point to be taken from such a candid expression of her time being yanked through the criminal justice system that was, by some measures, worse and more emotionally taxing and damaging to her own self worth than the origianl experience, and why she’ll never bother to go that way again, then I think the point of her writing must have been somehow missed.

    Comment by izogi — April 18, 2016 @ 9:24 pm

  62. I think the point of her writing must have been somehow missed

    Not at all. But then I’ve also read about the experiences of John Edgar, Nick Wills, Michael Neville, Alan Rush, David Dougherty and others. Their stories are just as important as the one you linked to.

    Comment by Ross — April 18, 2016 @ 10:26 pm

  63. *Allan Rust

    Comment by Ross — April 18, 2016 @ 10:31 pm

  64. “I would! Because I think the chances of my ending up in that cell are pretty close to zero.”
    My chances of being killed on the road today are close to zero, yet it’s likely that someone will be. And we put a lot of effort into preventing this. I wonder how a death in the family from a motor accident compares with the “death” of (e.g.) your father to accusations of sexual misconduct? A road death can tear a family apart. A sexual deviancy accusation will (IMHO) tear a family apart. So we’d better get it right.

    I’m concerned that one of those Slate articles states that “studies show” that 8 to 10% of claims are false (US stats presumably). That’s a bit of a worry.
    If 10% of burglary reports are false, the direct harm is to insurance companies and indirectly our premium rates.

    Comment by Clunking Fist — April 19, 2016 @ 12:28 pm

  65. @Ross: “Not at all. But then I’ve also read about the experiences of John Edgar, Nick Wills, Michael Neville, Alan Rush, David Dougherty and others. Their stories are just as important as the one you linked to.”

    Yes, certainly. To be clear I’m not meaning to argue alongside some other statements here about lowering the requirements for evidence, which I’ve really not thought about in detail. But I do find the way that our justice system systematically re-victimises victims, to the extent that it’s making it harder to even collect that evidence, to be quite a repugnant thing.

    Is it really necessary for trials to take years? Is it really necessary for (alleged) victims, who’ve very possibly already been mentally messed with, to be put in situations where they are being aggressively judged and repeatedly told they’re making stuff up? Is it really necessary for [alleged] victims to have to face their [alleged] attackers in such an aggressive environment over incidents that were [allegedly] largely about those [alleged] attackers taking advantage of and imposing power and control over them to begin with?

    Comment by izogi — April 19, 2016 @ 12:43 pm

  66. @izogi – You raise some good points, all of which apply to defendants as well (“Justice delayed is justice denied” and all that).
    Don’t forget, defendants are also hectored about their credibility as well. It’s an inherent feature of an adversarial versus inquisitorial system.
    Also, I don’t believe that alleged victims are always compelled to face their alleged attackers. Certainly in sexual offence cases, video evidence can be presented as I understand it.
    Mr. Geddis will no doubt have a better handle on the finer points.

    Comment by Gregor Ware grounds for a complaint. — April 19, 2016 @ 3:05 pm

  67. I like how my handle has changed due to autofill….

    Comment by Gregor W — April 19, 2016 @ 3:27 pm

  68. It seems my handle has changed courtesy of autofill.
    At least it makes some for of logical sense.

    Comment by Gregor W — April 19, 2016 @ 3:28 pm

  69. if, for the sake of argument, we accept this claim that 10% of claims are lies, (bearing in mind there are other studies etc), then how would y’all suggest you get beyond ‘reasonable doubt’ in ‘he said she said’ cases?

    Wouldn’t matter how convincing the complainant is, and how shifty the defendent is really. Some poeple are good liars right? So it would reasonable to assume it’s possible the defendent is innocent, even if you have been convinced personally that they did it. All the defence has to do is put the argument that it’s possible they are lying, “as 10% are” and there you go, innit?

    How worried are youse that what you are defending is, in effect, an abusers charter?

    I’m seeing alot of ‘omg what about the times it gest wrong’ and ‘imagine it was your dad’ or whatever, but not much about the more common errors the other way.

    Comment by shakingstick — April 19, 2016 @ 7:37 pm

  70. “defendants are also hectored about their credibility as well.”

    they don’t *have* to take the stand though, and often don’t. And even by video the alleged victim will be cross examined by lawyers trying to show they are liars, even without catching them in a lie. Apply pressure, jump on and magnify any contradiction, bring up irrelevant history and what not, ignore all else; and often there’s your ‘reasonable doubt’ even for jurors who believe the defendent did it. They ‘could’ have been lying is all it takes.

    Also too, the defendent is protected, often, against their previous history being mentioned; so as not to prejudice the specifics of the current case. The victim’s personal history however is fair game, as it goes to ‘character’ or whatever, shows they really liked it, just lying now out of spite, etc.

    Comment by shakingstick — April 19, 2016 @ 7:45 pm

  71. @shakingstick

    > how would y’all suggest you get beyond ‘reasonable doubt’ in ‘he said she said’ cases?

    In short, you can’t and shouldn’t.

    You shouldn’t be putting anyone away for years purely on hearsay. You need some evidence if you’re gonna do that.

    A.

    (PS Total agreement that the current process is bad and should be improved. But ‘guilty on balance of probabilities’ is not the fix and is not gonna happen.)

    Comment by Antoine — April 19, 2016 @ 11:46 pm

  72. “In short, you can’t and shouldn’t.”

    In effect that is the abuser’s charter I mentioned. If it isn;t possible to prove beyond a reasonable doubt in he said she said cases, abusers need only ensure there is no eveidence beyond that and they cannot be convicted.

    And it’s not ‘hearsay’, it is direct testimony. The victim is an eye-witness by definition, and yet you are saying that can never be enough. So why on earth would victims ever come forward? That’s institutionalising rape culture to a massive degree.

    If the victim’s testimony is not enough to convict, if the base assumtion is that it is a lie they need to prove is not a lie, how is that not an abuser’s charter?

    Comment by shakingstick — April 20, 2016 @ 5:32 am

  73. @shakingstick

    I sympathise with where you’re coming from

    For myself, I would love for less crime to happen, and for a higher proportion of crims to get caught and punished, and there are things that can realistically be done to promote those objectives, and I hope those things are done.

    But we are simply not going to come out of this with a system where:
    – she says ‘he did’
    – he says ‘I didn’t’
    – there is no other evidence
    – he goes to jail for 8 years.

    To the extent that we, in our various roles as members of the community, can influence policy, we should aim for the achievable (such as “victims don’t have to describe their sexual history” or “victims can provide evidence by video link” or “specialist court for sexual assault claims” or “faster processing of cases” or whatever is most beneficial).

    A.

    Comment by Antoine — April 20, 2016 @ 8:45 am

  74. “For myself, I would love for less crime to happen”

    Now there’s a controversial view

    Comment by Ortvin Sarapuu — April 20, 2016 @ 8:49 am

  75. >> “For myself, I would love for less crime to happen”
    > Now there’s a controversial view

    I know, I know. But shakingstick characterises the presumption of innocence as ‘an abuser’s charter’ so I was trying to lay down some markers that, just because I don’t support ‘balance of probabilities’ for sexual assault charges, doesn’t mean I’m trying to protect rapists.

    A.

    Comment by Antoine — April 20, 2016 @ 8:52 am

  76. I guess I think back to Andrew Little’s proposal to “reverse the burden of proof” in rape cases, which served little purpose beyond losing votes.

    A.

    Comment by Antoine — April 20, 2016 @ 8:54 am

  77. @shakingstick

    a couple of points:

    if, for the sake of argument, we accept this claim that 10% of claims are lies….

    It’s not about the claimant lying.
    It’s about the presumption of innocence as a starting point for the accused. This is a core concept of our legal system.

    How worried are youse that what you are defending is, in effect, an abusers charter?

    Not at all. That’s a silly definition because a “charter” implies a granting authority / rights to legally abuse someone (which is patently ridiculous).
    What is being defended is the long established right to silence in the face of accusation (i.e. the legal right to avoid self incrimination) and that not to be construed as an admission of guilt, and, as above, the presumption of innocence.
    The State has to make a case. The accused does not have to help them.
    Otherwise, you may as well go full noise and get rid of public proceeding for criminal cases and just make do with sealed testimony, with rulings issued by a star chamber.

    If the victim’s testimony is not enough to convict, if the base assumtion is that it is a lie they need to prove is not a lie, how is that not an abuser’s charter?

    No it isn’t. It’s that on the basis of the witnesses testimony alone, the case is not proven.
    However, given we don’t have a finding of ‘not proven’ in this country, we are left with a default finding of innocence.

    Comment by Gregor W — April 20, 2016 @ 10:28 am

  78. I agree with Gregor. Several years ago a woman in the South Island ripped off her bra and scratched herself on her chest and elsewhere with her keys before falsely alleging rape. An unfortunate man subsequently faced trial and lost his job in the process, as well as incurring trial costs. Luckily the accuser’s family were willing to assist authorities and revealed the complaint was false. But for their help the accused might have been convicted.

    Given the frequency of rape and sex crimes it is inevitable that some offendors will not be prosecuted. However it should not be inevitable that an innocent person is wrongly convicted of such a crime.

    Comment by Ross — April 20, 2016 @ 1:49 pm

  79. Gregor.

    “It’s not about the claimant lying.”

    There has been, through this thread, various discussions about ‘false accusations’ and hypothetical cases of people being accused out of the blue etc and how the fact of false accusations has to be front and foremost. Or at least, that false accusations are a very important consideration. Which is fair enough.

    What I was trying to get at is how this relates to the current law. I think the question underlying much of this discussion is ‘what does ‘reasonable doubt’ mean?’.

    that is where I was going with the ‘abusers charter’ comment you and Antoine so object to.

    Not at all. That’s a silly definition because a “charter” implies a granting authority / rights to legally abuse someone

    You’ll note I said ‘in effect’, that wasn’t an accident. I didn’t mean that the crown was literally and explicitly granting people a legal right to abuse. What I was saying, what ‘in effect’ means, is that the outcome is the same. that if interpret reasonable doubt in way such that he said she said can b=never meet it, then that would be in effect an abusers charter.

    I’ll go through it again, in case you, (or A) would care to address it in a way that isn’t an audition for 12 Angry Men.

    If we think that ‘beyond resonable doubt’ is a standard that cannot be met in cases where there is no evidence beyond ‘he said she said’, then abusers who take care to not leave evidence beyond that will be protected.

    I was wondering if that concerns people here at all?

    It is my belief, (contra Antoine if I read his 8:45 comment correctly), that beyond reasonable doubt can be met in ‘he said/she said cases’. That the standard is not meant to be understood to mean that ‘because people are known to lie, we need more than just testimony to meet the ‘beyond reasonable doubt’ standard’.

    So I reject the premise of that if/then proposition.

    The point I was trying to make, is that beyond reasonable doubt is not meant to be a charter. But comments here had me wondering whether people here were concerned they were raising it to that level.

    And now find that some here do think that ‘he said she said’ can never meet the standard for beyond reasonable doubt. If that is true, then how do they avoid that standard becoming in effect an abusers charter.

    Finally, to be as clear as I can. I think that it is not a ‘reasonable doubt’ to say that because people do lie, then as a matter of principle you cannot convict based solely on testimony. I think that is unreasonable doubt.

    Comment by shakingstick — April 20, 2016 @ 1:54 pm

  80. @ shakingstick

    If we think that ‘beyond reasonable doubt’ is a standard that cannot be met in cases where there is no evidence beyond ‘he said she said’, then abusers who take care to not leave evidence beyond that will be protected.

    I fundamentally disagree with this. IMO, it’s a negative right arguement involving the citizen and the State.
    What is being universally being ‘protected’ is a defendants right to assumed innocence, a fair trial and due process, irrespective of whether they are culpable or not.

    …how do they avoid that standard becoming in effect an abusers charter.

    How can you stop any ‘he said, she said’ becoming in effect a thieves / murderers / person-who-lets-their-dog-shit-on-your-lawn charter?
    It’s basically a stupid question because it reduces complex interactions of law, individual rights and evidential process to a moral judgement, which incidentally, is one of the main reasons that Courts exist.

    Comment by Gregor W — April 20, 2016 @ 2:29 pm

  81. Out of interest, what would be the negative points of shifting from an adversarial to an inquisitorial system where there allegations like rape?

    http://www.justice.govt.nz/publications/global-publications/a/alternative-pre-trial-and-trial-processes-for-child-witnesses-in-new-zealands-criminal-justice-system/appendix-b-a-comparison-of-the-inquisitorial-and-adversarial-systems

    Would it help in any way?

    Comment by izogi — April 20, 2016 @ 2:34 pm

  82. “How can you stop any ‘he said, she said’ becoming in effect a thieves / murderers / person-who-lets-their-dog-shit-on-your-lawn charter?”

    Because in thefts, murders, and dog shitting on lawn cases, there is almost always other evidence aside from testimony. But very often there are elements of cases that do come down to ‘he said she said’, and guess what? We get convictions. Juries make up their mind who to believe. That’s what they are for.

    the fact that a case is ‘he said she said’ should not automatically mean an acquital. It is not a reasonable doubt. Juries have a duty to decide who they think is telling the truth. They shouldn’t take the fact that ‘liars are a thing that exists’ as meaning ‘there is always reasonable doubt in cases where it comes down to he said she said, so we must acquit’.

    that is why the crown brings such cases. It has always been that way. the idea more than testimony is required to get ‘beyond reasonable doubt’ is not a stirring defence of our system, it’s a misrepresentation of it.

    Comment by shakingstick — April 20, 2016 @ 3:12 pm

  83. Because in thefts, murders, and dog shitting on lawn cases, there is almost always other evidence aside from testimony.

    I’m not talking about these being “almost always other evidence” cases.

    I’m positioning whether, if the evidential basis of any of these examples was restricted to “he said, she said” , would you apply the same logic of lowering the evidential bar?
    I’m betting you wouldn’t.
    And I’m also betting you wouldn’t suggest that retaining the measure of beyond reasonable doubt, leads to an effective charter for thieves, murderers and dog-shit leavers.

    the fact that a case is ‘he said she said’ should not automatically mean an acquital. It is not a reasonable doubt….

    I haven’t said it does. The definition of reasonable doubt and the guidance provided by judges in jury cases is pretty clear.
    That’s why the word “reasonable” versus “absolute” is in the test
    The test is not that the accuser is reasonably more credible than the defendant, but that a “reasonable person” acting as a juror has no “reasonable doubt” that the accused is guilty based on the evidence presented.

    So I’m not sure what your point actually is I’m afraid.

    Comment by Gregor W — April 20, 2016 @ 3:41 pm

  84. I’m not saying we should lower the evidential bar, ffs. Never said that. Not once. never implied it.

    What I have said is that the bar isn’t actually as high as some have been implying.

    Antoine explicitly said that you can’t get beyond the reasonable doubt bar where the evidence is solely ‘he said she said.

    “@shakingstick

    > how would y’all suggest you get beyond ‘reasonable doubt’ in ‘he said she said’ cases?

    In short, you can’t and shouldn’t.

    You shouldn’t be putting anyone away for years purely on hearsay. You need some evidence if you’re gonna do that.

    A.”

    If you disagree with him, why the fuck have you been arguing with me about it?

    Comment by shakingstick — April 20, 2016 @ 4:32 pm

  85. “It is curious that sexual crime seem to be the one area of the justice system where the left – at least in its comfortable middle-class configuration – is quite comfortable to join the right-wing calls for more convictions, tougher punishments, harsher deterrence, a lower evidentiary standard. Why is it, I wonder, that this one type of crime – diverse and complex as it is – brings out all the latent hang-’em-high instincts in otherwise-bleeding-heart liberals? ”

    I don’t think thats strictly speaking true. Over the past few years I’ve lots on the left tie themselves in knots trying to minimise or defend the behaviour of Julian Assange. He sounds a similar sort of creep to this guy and yet he has had plenty of support for making sure his victims never see justice.

    Comment by Cliff Clavin — April 20, 2016 @ 6:45 pm

  86. “what would be the negative points of shifting from an adversarial to an inquisitorial system where there allegations like rape?”

    France uses an inquisitorial system and doesn’t seem to have better conviction rates in rape cases.

    Comment by Ortvin Sarapuu — April 20, 2016 @ 7:58 pm

  87. He sounds a similar sort of creep to this guy and yet he has had plenty of support for making sure his victims never see justice.

    Assange has never been charged with any crime, and Swedish prosecutors could have interviewed him in the UK or elsewhere at any time. They’ve chosen not to. So the reference to “victims” is a little premature.

    Comment by Ross — April 21, 2016 @ 7:42 am

  88. The story I referred to above:

    Otago Daily Times
    September 2, 1998

    Woman faked attack injury
    NZPA

    Wellington: A woman ripped off her own bra and scratched her breasts, chest and neck with a key before laying a false complaint of indecent assault, Lower Hutt District Court has been told.

    The woman (20) pleaded guilty to perjury and having made a false declaration at the trial of the man she had accused of attacking her. [She was subsequently sentenced to two years in prison.]

    Police prosecutor Sergeant Tony Rickard-Simms said the man she had accused had lost his job, been held in custody for 15 days and put to the expense of a trial.

    The woman, who wept in court as the facts of the case were read out, had name suppression continued until sentencing in the High Court at Wellington on September 18.

    Mr Rickard-Simms told the court the woman had gone to Hutt Valley Polytechnic on August 14 last year, claiming she had been dragged from her car and attacked by a man who had approached her a week earlier.

    She had sworn statements about the alleged attack and had given evidence at the man’s trial earlier this year. It was only after police received a call from a member of her family that she had admitted her statements had been false.

    She said she had made the accusations to gain the love and attention of her family. She showed no remorse for the man she had accused, Mr Rickard-Simms said.

    Police had spent 250 hours on the inquiry at a cost of more than $17,500. The trial had cost $5000 and witnesses’ expenses $4500.

    He urged the lifting of name suppression as the man’s family was very concerned that no media attention had been given to the case.

    However, Judge Chris Tuohy accepted defence counsel Lynda Stevens’ argument for continued suppression.

    He said imprisonment was likely and psychiatric reports indicated that the woman was at risk of impulsive actions.

    The matter would be dealt with shortly and he did not want to pre-empt the High Court on sentencing issues.

    Comment by Ross — April 21, 2016 @ 8:04 am

  89. If you disagree with him, why the fuck have you been arguing with me about it?

    I disagree with both of you in various ways, but with Antoine less so.

    1. I disagree with Antoine where he suggests that you can’t get beyond the ‘reasonable doubt’ bar where the evidence is solely. I think though that this is mostly down to his misinterpretation of hearsay versus direct testimony.

    2. I disagree with you when you say that that the bar of ‘reasonable doubt’ isn’t actually as high as “some have been implying”. See my point #81.

    3. I disagree with your proposition that in effect, an “abusers charter” exists on the basis that direct testimony isn’t always enough to convict ‘beyond reasonable doubt’.
    I have no concerns at all that there is a perception that this charter is in effect, just as I have no concern that a “murderers charter” exists if the evdential basis is direct testimony alone.
    This seems to be down to a differing opinion re negative rights. Where you infer that a defendant only needs to ensure no other evidence exists to secure an acquittal, my view is that the defendant is under no obligation whatsoever – either to assist police with their inquiries or refute statements/evidence. There is a presumption of innocence. The Crown needs to prove otherwise.

    Hope that clears everything up.

    Comment by Gregor W — April 21, 2016 @ 10:40 am

  90. Not really.

    In 3, you kinda get closer to what I have been saying, but still miss the point.

    My propostion is a conditional statement. You disagree with the antecedent, (as do I). Thus you have no problem saying the consequent is false.

    The question however is what about people who agree with the antecedent. I was asking if those people are comfortable with the consequent that seems to follow from the antecedent they accept.

    As to whether or not it is a problem, sit on a jury with three people who accept that antecdent, and watch them say ‘I agree with you all that he probably did it, I believe the victims testimony, but I cannot give a guilty verdict because reasonable doubt exists because she could‘ be lying’. Even after judge’s comments etc. Not fun.

    Comment by shakingstick — April 21, 2016 @ 12:08 pm

  91. @shakingstick

    I get that your proposition is a conditional statement.
    And yes, I disagree with the antecedent. I just don’t agree that your framing of the consequent statement is valid. Hence the contention.

    Having sat on a number of juriesmyself (though admittedly, not for anything particularly serious) I have seem what you describe on two occasions.
    The failure however is not in the legal system or in instructions to the jury.

    It’s also a failure in the individual not understanding the judges guidance (thus falling back on false-negative reasoning), and also in the Foreperson not understanding there responsibilities to clarify the judges instructions or seek guidance in order to facilitate a correct finding.

    Comment by Gregor W — April 21, 2016 @ 3:15 pm

  92. Ortvin Sarapuu: “France uses an inquisitorial system and doesn’t seem to have better conviction rates in rape cases.”

    Is it demonstrably worse? Because my inadequately superficial understanding of the inquisitorial system suggests to me that it’d be highly preferable from a victim’s perspective than the status quo for many reasons besides the likeliness of getting a conviction.

    Comment by izogi — April 21, 2016 @ 3:20 pm

  93. “I just don’t agree that your framing of the consequent statement is valid. ”

    Yeah, well, given you think I said something that means:

    “I disagree with your proposition that in effect, an “abusers charter” exists on the basis that direct testimony isn’t always enough to convict ‘beyond reasonable doubt’.

    no doubt. But seeing how you seem insistent on misrepresenting what I said (the bit in italics is not framed the way I said it, and means something very different), and seeing how you seem locked in to not actually bothering to consider if you misunderstood, I’m gonna drop it.

    What I actually said, for the record, is that direct testimony can be enough to get to reasonable doubt. Not always, but it *can* be.

    The point of my conditional, is that if you don’t accept that, then it implies something none of us would want. A pretty basic Modus Tollens argument

    But it’s all there upthread, in the multiple times I repeated it.

    Comment by shakingstick — April 21, 2016 @ 4:04 pm

  94. but I cannot give a guilty verdict because reasonable doubt exists because she could‘ be lying’

    Well, that could apply in any trial with any key witness. It’s not only in rape trials that jurors are going to assess the reliability/credibility of witnesses. But remember that to get an acquittal, all jurors (or a large majority) must agree. One juror who refuses to convict under any circumstances isn’t sufficient for an acquittal.

    Comment by Ross — April 21, 2016 @ 4:25 pm

  95. Yes Ross, it could be inn any trial.

    the problem has been called the ‘CSI effect’, and it partly relates to how many people in the public, (who could become jurors) believe that testimony must be supported by other evidence. ie, they believe that testimony alone can never get beyond ‘reasonable doubt’. they are quite sincere in this belief. It is not even about whether or not they believe the witness, but rather that they think that even though they believe the witness, because they ‘could’ be lying, reasonable doubt exists.

    this is a mistaken belief about what ‘reasonable doubt’ is, and given various comments in this thread, I thought I’d test the waters to see if people around these parts were leaning towards that mistaken belief.

    Comment by shakingstick — April 21, 2016 @ 4:34 pm

  96. this is a mistaken belief about what ‘reasonable doubt’ is

    If I recall correctly, the biggest concern in this space is the general inability of jurors to understand the difference between ‘beyond reasonable doubt’ and ‘the balance of probabilities’

    Comment by Phil — April 21, 2016 @ 4:46 pm

  97. The point of my conditional, is that if you don’t accept that, then it implies something none of us would want. A pretty basic Modus Tollens argument

    I get it. I just think your implication is invalid.
    To go back to your point #70 if I don’t agree with your antecedent (in bold) I can’t possibly accept your consequent statement.
    There is only a presumption that the accused is innocent.

    “If the victim’s testimony is not enough to convict, if the base assumtion is that it is a lie they need to prove is not a lie, how is that not an abuser’s charter?”

    The point I tried to make in #77 is that in the judicial process, there is no assumption that the witnesses are lying.
    There is only a presumption that the accused is innocent.
    The prosecutions job is to make the accuser look credible. The defences job is to make them not look credible.
    But there is no direction from the Court to the jury that holds a witness to the standard of ‘prove you aren’t a liar’.

    Comment by Gregor W — April 21, 2016 @ 5:05 pm

  98. “I get it.”

    No, you don’t.

    “I just think your implication is invalid.”

    You don’t understand the argument.

    To go back to your point #70 if I don’t agree with your antecedent (in bold) I can’t possibly accept your consequent statement.

    This is backwards. I am not asking you to accept the consequent if you deny the antecedent.

    I am saying that IF, (IF ) you accept the antecedent, then the consequent follows. That is all. Obviously if you reject the antecedent the consequent is irrelevent. I am not saying you should accept the antecedent. I am certainly not saying I accept it.

    Apparently people think the fact that people lie is very important, (it was brought up repeatedly) some think it’s so important it amounts to reasonable doubt without other evidence. I was just saying that if you believe the antecedent, then the consequent follows.

    It works like this:

    1)If A is true, then B is true.

    2)’B is not true’,

    therefore

    3) ‘A is not true’

    Comment by shakingstick — April 21, 2016 @ 8:01 pm

  99. “The point of my conditional, is that if you don’t accept that, then it implies something none of us would want.”

    the ‘that’ in this statement refers to the following, (from directly above it), not the antecedent from 70 you quote (I flipped it from 70 in an attempt to clarify).

    ‘What I actually said, for the record, is that direct testimony can be enough to get to reasonable doubt. Not always, but it *can* be.”

    so we get :

    “The point of my conditional is that if you don’t accept that direct testimony can be enough to get to reasonable doubt, then it implies something none of us would want.”

    Comment by shakingstick — April 21, 2016 @ 8:17 pm

  100. That’s an overwrought and tortuous way of stating the obvious.

    Wouldn’t it have been simpler to say “If you believe that, in the absence of supporting evidence, direct testimony cannot ever meet the bar of beyond reasonable doubt, then the justice system is irredeemably broken”.

    Laid out that way – and notwithstanding his mix up between hearsay and direct testimony – Antoine would probably agree (though he might surprise me!) In fact, I think you’d be hard pressed to find anyone who doesn’t.

    It’s all this florid talk of an effective “abusers charter” – which I read as the State, in effect, explicitly condoning abuse [that is, legislatively assisting in its commission by according abusers certain rights and privileges] – that clouds your point. Your phrase assigns a hypothetical agency/malicious intent to the State’s actions in order to deliberately protect criminals and persecute victims.

    Which is dumb.

    Comment by Gregor W — April 21, 2016 @ 9:13 pm

  101. Apparently people think the fact that people lie is very important

    Well, it is important. I’m assuming you read 86.

    Comment by Ross — April 22, 2016 @ 6:34 am

  102. “I think you’d be hard pressed to find anyone who doesn’t”

    I found three of them in a jury room. And Antoine was the one who mentioned hearsay. If you look at what he said, then yes, he got the term wrong, but he was saying that testimony needs support from other evidence. He stated that quite clearly.

    So Like I said, and you rejected, your disgreement is with him, not me.

    Comment by shakingstick — April 22, 2016 @ 9:31 am

  103. “Is it demonstrably worse?”

    No, it’s about the same. My point is simply that an inquisitorial system isn’t a solution to lower-than-desired conviction rates.

    Is it a better experience for the victim? I don’t know, but it’s worth noting that the difference between an inquisitorial system and an adversarial system is more theoretical than practical. The main difference is that, in an adversarial system, if defense and prosecution counsel agree on something, the court has no power to find otherwise. In an inquisitorial system the court can find fact on its own account. But for the experience of a sexual assault survivor who doesn’t want to relive the event, that’s mostly irrelevant. They will still be pressured to testify (the pressure will come from the judge not from their counsel – but does that make it easier?), they will still face attempts to undermine their testimony by the defense counsel. An inquisitorial judge will still want to know about the extenuating circumstances surrounding an assault, the kind of circumstances many survivors find it traumatic to talk about.

    It’s not a solution. Nobody who’s familiar with it would think it was a solution. The concept that inquisitorial systems would be better seems to come simply from the idea that there is a different system and that because our system is bad, the other one must be better.

    Which isn’t to say the inquisitorial system is bad, it just doesn’t address this particular problem.

    Comment by Ortvin Sarapuu — April 22, 2016 @ 9:57 am

  104. I found three of them in a jury room.

    No. You found three people in the jury room who didn’t understand their obligations.
    That’s not any particular indictment on the system IMO. It just means a proportion of the population people don’t pay attention to instructions / are a bit thick.

    Comment by Gregor W — April 22, 2016 @ 10:02 am

  105. specifically, they didn’t understand that ‘reasonable doubt’ can be cleared by testimony. Even following instruction etc. Hung jury.

    What they didn’t understand, is what ‘reasonable doubt’ means.

    I have no doubt that those people, to this day, believe that they carried out their duty correctly. They were sincere. Though I realise I should take your word for what happened for some reason.

    So, amazingly, if there is a whole bunch of people who don’t get that, when they need to get that for the system to work as it should, then maybe the system isn’t working as it should.

    Another conditional there. Modus Ponens this time (affirming the antecedent), I hope it’s not too ‘florrid’ for you to understand it this time.

    Comment by shakingstick — April 22, 2016 @ 10:30 am

  106. have no doubt that those people, to this day, believe that they carried out their duty correctly. They were sincere.

    I’m sure they do.

    So, amazingly, if there is a whole bunch of people who don’t get that, when they need to get that for the system to work as it should, then maybe the system isn’t working as it should.

    There’s a bunch of research that suggests that jurors don’t understand either “balance of probabilities” or “beyond reasonable doubt”.
    Within that research, there are a suggestions that a huge part of the problem is as a result of pre-trial bias and social attitudes of jurors.

    All this is entirely predictable I guess – and is the reason there is the opportunity to challenge jurors – but it doesn’t mean that “the system isn’t working as it should” . It just means that people are people – bias prone and fairly irrational.

    It also depends on what you want to measure “working” as. More convictions? More just convictions (presumably quite hard to calculate unless the accused admits guilt after the fact)?

    Comment by Gregor W — April 22, 2016 @ 11:33 am

  107. “There’s a bunch of research that suggests that jurors don’t understand either “balance of probabilities” or “beyond reasonable doubt”.”
    I’ve been on a couple of juries where a small number didn’t understand this, but the rest of us were able to break it down for them, particularly when we were going through the process: it made sense to them at that point. Both jury experiences reinforced for me how seriously people can take the process. Which was reassuring, even though I doubt (hope) I’ll never need to rely on the process.

    Comment by Clunking Fist — April 22, 2016 @ 1:26 pm

  108. @CF – that’s the problem with small samples and anecdata I suppose. You had a good experience as part of a jury. Shakingstick, not so much.
    And yes, it is reassuring that even if some people don’t quite understand the nuances, they take it seriously and are willing to accept guidance from their fellow jurors (though that in of itself poses some hazards).
    IMO it also reinforces why we shouldn’t look to change the process as opposed to looking at ways of educating jurors more effectively.

    Comment by Gregor W — April 22, 2016 @ 3:41 pm

  109. Exhibit A,

    “Assange has never been charged with any crime, and Swedish prosecutors could have interviewed him in the UK or elsewhere at any time. They’ve chosen not to. So the reference to “victims” is a little premature.”

    “Victims”? Really Ross? They couldnt have interviewed him as you well know because he’s been hiding from them in an embassy for years.

    Like I said some on the left have tied themselves in knots trying to defend this creep . If it was someone from the other side of the political spectrum they’d be holding candlelight vigils outside the embassy and calling for boycotts of whatever exports the country hiding him made.

    “Victims” ffs, Even by your lowly standards Ross thats pretty bad.

    Comment by Cliff Clavin — April 23, 2016 @ 8:50 am

  110. They couldnt have interviewed him as you well know because he’s been hiding from them in an embassy for years.

    Swedish authorities have admitted they could’ve interviewed him. How on earth do you think criminals are questioned when they flee a country in which they’ve committed a crime? Police in the home country liaise with their foreign counterparts to arrange an interview.

    “Former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs, Hans Corell, has stated that he ‘does not understand why the prosecutor had not questioned Julian Assange during all the years he has been at the Ecuadorian Embassy’. A spokesperson for Marianne Ny, the prosecutor in the case, said she was waiting for formalities to be completed before conducting the interrogation, which is a necessary step towards formal charges’. (sic) Notwithstanding, the Swedish authorities have not availed themselves of the less restrictive option of interviewing Assange in other ways, and the stalemate in this regard continues.

    Whether or not you believe Mr. Assange is guilty of a sexual offence, whether or not you think he is a self-publicist deliberately resisting arrest, the fact remains that the authorities could use less restrictive means without compromising the initial investigation into the allegations regarding his sexual conduct in Sweden.”

    https://ukconstitutionallaw.org/2016/02/09/liora-lazarus-is-the-united-nations-working-group-on-arbitrary-detention-decision-on-assange-so-wrong/

    Comment by Ross — April 23, 2016 @ 9:49 am

  111. “…a Swedish professor of international law [has] stated that the reason why the prosecutor will not question Julian Assange in London is that it has become ”a matter of prestige” not to do so.”

    http://www.friatider.se/swedish-ministry-of-foreign-affairs-explains-why-assange-is-not-questioned-in-london-you-do-not-dictate-the-terms-if-you-are-a-suspect-get-it

    Comment by Ross — April 23, 2016 @ 9:52 am

  112. Thats all well and good Ross but you’re ignoring the fact the creep has been holed up in an embassy for years avoiding the charges in court and lets not forget you calling those women “victims”.

    Like I said, plenty on the left have tied themselves in knots minimising the allegations against him and avoiding the 10000 pound elephant in the room-that he might actually be guilty.

    But if it suits you to believe he’s behaved like an innocent man and those women are liars knock yourself out.

    Comment by Cliff Clavin — April 23, 2016 @ 5:04 pm

  113. “Like I said, plenty on the left have tied themselves in knots minimising the allegations against him and avoiding the 10000 pound elephant in the room-that he might actually be guilty.”

    Who?

    I’m sure they’re out there but I’m equally convinced of the likeliness that there are many of a “leftist” persuasion who don’t fit what you’re saying at all. It really doesn’t seem reasonable to set up the entire “left” with a straw man and write it all off, when you could actually be specific enough so it’d be possible to consider and comment on what was actually said by those people.

    Comment by izogi — April 23, 2016 @ 8:35 pm

  114. you’re ignoring the fact the creep has been holed up in an embassy for years avoiding the charges in court

    It’s good to see you’re keeping an open mind.

    Comment by Ross — April 24, 2016 @ 9:27 am

  115. he might actually be guilty

    Well, obviously he might be. Naomi Wolf is an ardent feminist and has supported victims of rape. She supports Assange. And remember that Swedish prosecutors could have interviewed him years ago. As a result of their failure to do so, several possible charges have now expired. That suggests prosecutors are not convinced that his accusers are victims.

    http://www.disclose.tv/news/Naomi_Wolf_Eight_BIG_PROBLEMS_with_the_case_against_Assange/85838
    http://www.theguardian.com/media/2015/aug/13/julian-assange-cases-dropped-but-rape-claim-investigation-continues

    Comment by Ross — April 24, 2016 @ 9:35 am


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