I think these comments are relevant to this discussion, albeit indirectly.

I observe many instances of so called 'abuse' in the news.
In almost every case, I think the 'abused' contributes to the abuse.
Sometimes by being negligent, sometimes by being unreasonably indifferent to developing circumstances.
Or perhaps by actively contributing to those circumstances.
Rarely is just one person entirely to blame for harmful events.
It always takes two to tango?

When we censure the so-called 'aggressor', we are contemplating only one of the wrong-doers?
Both 'sides' contributed to the event?
The actions of both should be considered, and blame apportioned appropriately?
Children, the elderly, the incapacitated, will, of course, have little or no blame attached to them.
But at the present time I see it as absurdly one-sided when one party is censured, and the other not.

We cannot expect our society will protect us at all times.
We must actively contribute to our own safety.
We cannot wander round with 'a head in the clouds'.
We must remain sensibly aware of potential danger and harm at all times.
And if we don't, we should not expect blame to fall exclusively on other shoulders.
It is time for us to take responsibility?

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At the latest count, only 1.5% of sexual assaults in Australia resulted in a conviction, and 97% of offenders were male.

Only 57% of offenders found guilty of perpetrating sexual assault were sentenced to custody in a correctional institution.

Our justice system is heavily weighted in favour of the accused who are all presumed innocent. Victims are all presumed guilty of lying.

The scales of justice need to be rebalanced.

I suggest that :

1. sex-related offences be tried behind closed doors to preserve the anonymity of both accused and accuser

2. there be no presumption in advance of innocence or guilt of either party

3. each case be judged on the basis of the balance of probabilities

I doubt that that would fix the problem, but it might nudge the pointer of the scales in the right direction and, hopefully, have the dissuasive effect of cooling the ardour of some.
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References :

http://www.aihw.gov.au/reports/domestic-violence/sexual-assault-in-australia/contents/summary

http://www.marieclaire.com.au/criminal-convictions-sexual-violence-australia

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Hi Banjo

I agree, the stats are shocking – probably even worse if you consider that most sexual assaults are not even reported. I’m not sure that abandoning the principle of presumed innocence is the right response though. It is a core plank of our justice system, and while I’m not normally a fan of “slippery slope” arguments, it could set a dangerous precedent.

I’d agree, though, that sex-related offences should be tried in camera with the accused and accuser remaining anonymous. I think there might also be merit in having judge-only trials for these offences.

Hi Ipso

You say that in almost every case of sexual abuse, the abused contributes to the abuse. Can you give some examples? Your argument seems a lot like the victim-blaming “see what you made me do” rationalisations that men have used for centuries to excuse or downplay sexual and domestic violence.

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Dear Rhian,

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You wrote :

« … most sexual assaults are not even reported … »
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Though the general principle of the presumption of innocence may rightly be considered a sound moral basis for judging most crimes, this is not true for sex-related crimes. These include rape, sexual assault, incest, and paedophilia, which are permanent features of all human societies, deeply embedded in our social structure at all levels, and penetrating the inner circles of the family in epidemic proportions.

The sacrosanct principle of presumption of innocence is an effective means of guaranteeing legal immunity to sex offenders and denying justice to the millions of victims it was designed to protect. In its present form justice is counterproductive. It achieves exactly the opposite result to that for which it was intended. Instead of preventing and punishing crime it encourages and facilitates it. It is headed in the wrong direction.

The offenders are declared innocent and acclaimed by society as the victims of totally unfounded, heinous accusations.

The victims are seen as the offenders and punished by their assaulter, justice, and society.

Sex crimes are usually perpetrated in the intimacy and tranquillity of the homes of either the victim or the aggressor at a moment when they are alone together, with no witnesses and no risk of them being disturbed. They are often members of the same family, more or less closely related, or friends or acquaintances. In most cases, the victim and the aggressor know each other personally.

No witness, no material evidence, and no way of proving lack of consent on the part of the victim. It all boils down to “my word against yours”.

As you rightly observe, Rhian, unlike other major crimes, most sex crimes are never brought before justice. It is ill-adapted and powerless to deal with them. There is a grave error of conception. Justice must be sent back to the drawing board. Its principles and practices must be re-designed to deal effectively with the specific characteristics of sex crimes that attack society in quasi-impunity and destroy so many innocent lives.

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Hi Banjo

thanks for your considered response. You might find this article from the UK interesting. I tend to agree with some of its conclusions - weakening the presumption of innocence could be seriously problematic, and judge-only trials may work better. It suggests changes in jury processes could also be beneficial. That may help, but I don't think it will be enough to solve the problem.

https://www.publicethics.org/post/sexual-crimes-and-low-conviction-rates

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Dear Rhian,

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I read Lewis Ross’s article in the Public Ethics blog of the Stockholm Centre with interest. Many thanks. I agree with much of his analysis.

It's a welcome contribution to my reflection on how best to reform our justice to ensure greater efficiency and fairness to all concerned.

In addition to the three measures indicated in my penultimate post, the following would also appear appropriate :

4. Special courts should be set up to deal with sex-related crimes and offenses. They should be hybrid courts open to alternative processes that depart from normative adversarial and inquisitorial processes, employing nuanced ways of dealing with sex crimes, free from the restraints of existing systems

5. One to three professional judges (their number depending on the seriousness and complexity of each particular case) should be commissioned by the courts, based on their experience and aptitude to deal with sex crimes

Allow me also to point out on this occasion that the presumption of innocence is the law in Australia. The role of justice is to establish the truth.

Truth is indisputably superior to presumption and must systematically take precedence.

Failure to establish the truth is a failure of justice – not a presumption of innocence. This should be clearly noted in the final verdict.

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