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The Forum > Article Comments > Onus of proof and sex crimes > Comments

Onus of proof and sex crimes : Comments

By Rodney Crisp, published 4/12/2013

The sacrosanct principle of presumption of innocence is an effective means of guaranteeing legal immunity to sex offenders.

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This was a long but interesting article, and I share the author's frustration at the injustice of the court systems at times.
I can't see how anything is going to change re onus of proof and sex crimes though, until many more of those victims of sex crimes actually report it to police.

I think it is safe to say that there are far more unreported sex crimes than innocent offenders being charged.
The experience of being involved in these sort of court cases need to be made much easier on the victims.

Pericles is right about trial by media too, but in Rolf Harris' s case I very much doubt that any journalist would dare say anything against such a popular public figure unless they were extremely sure of their source?
I hope I am wrong though...
Posted by Suseonline, Wednesday, 4 December 2013 6:52:09 PM
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In NSW at the moment if one is unfortunate enough to be unlawfully attacked and one defends one's self and kills the attacker then the onus of proof is on the Prosecution to prove that one did not fear for one's life; clearly a near impossibility.
This is 'Innocent until proven guilty' and provoked a storm from the Greens when the then Shooters' Party successfully introduced the legislation.
The Greens called it a 'licence to murder'.

It remains, probably, the sole example where the Prosecution has to prove guilt and, theoretically the defendant does not have to prove innocence.
Posted by Is Mise, Wednesday, 4 December 2013 10:02:23 PM
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Antidiscrimation legislation requires the accused to prove their innocence. If an employee claims discrimination or harassment the onus is on the accused employer to prove it didnt happen.
Posted by KarlX, Thursday, 5 December 2013 9:20:45 AM
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I think you may have just illustrated my point, Suseonline.

>>...in Rolf Harris' s case I very much doubt that any journalist would dare say anything against such a popular public figure unless they were extremely sure of their source?<<

It doesn't actually work that way, though. The "source" that created the news in the first place is not the person who lays the charges, but the factual court record that Rolf Harris has been charged with indecent assault. Unless they have been specifically instructed otherwise by the Court, this is exactly what UK journalists will report.

A problem arises, however, when agencies outside the Court's jurisdiction report what is, after all, a fact. These can be foreign newspapers, blogs, tweets etc., who effectively put the information in the public domain. Once it is out there (and this is pretty much what happened in this case) then reporting it as "According to the Huffington Post/New York Times/Paris Match..." becomes legitimate, and that's that.

Obviously, complaints have been laid against Rolf Harris. But they have not been tested in court for their credibility - we have effectively "heard" only one side of the story. But actually, we have heard nothing that tells us what he has been up to.

Fact remains that innocent or guilty, Rolf Harris' reputation has been totally trashed, thanks to purely factual reporting, but without a shred of tested evidence. It is our imaginations that have filled in the detail.
Posted by Pericles, Thursday, 5 December 2013 11:03:08 AM
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I see your point Pericles, but how can this be avoided?
He would not have been charged and be fronting court without some 'proof' at least, surely?
I guess it is a price you pay for being famous.
You may be just fodder for someone else's nasty vindictiveness.

On the other hand, there are many, many other famous people who do not have these sorts of allegations levelled against them.

Look at Jimmy Saville's case.
Apparently his 'activities' were well known in certain circles.
How come it took so long for him to be investigated?
It is certainly a strange world we live in.
Posted by Suseonline, Thursday, 5 December 2013 8:47:47 PM
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I've been reading 'Night Games' by Anna Krien, which deals a bit with the politics and intricacies of consent, and details a few of the more publicised rape trials involving sportsmen, footballers in particular. She notes the low rate of convictions in cases like the ones she examines, and explores many of the reasons for this. Even as a feminist, she doesn't always come down on the side of the complainant. The legal proceedings and definitions of consent can be technical and complex. After reading this, it became more understandable as to why juries find it hard to convict those accused beyond reasonable doubt.
Posted by Dan S de Merengue, Thursday, 5 December 2013 11:00:33 PM
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