Our adversarial legal system routinely denies vulnerable rape victims justice, writes Evan Whitton, who advocates a special Court to try rapes under a less adversarial system.
A Daily Telegraph study in 2007 found that in NSW perhaps 20 of 100 rape cases were reported, four persons were charged and one was convicted. A 1993 UK Home Office study likewise found that 99% of rapists escape justice.
The low reporting rate is partly the result of privacy, fear of stigma and a misplaced sense of guilt, and partly because victims probably suspect they will be further traumatised in the courts, and a belief that the rapist will probably get off anyway (because evidence is concealed).
The last two factors are due to a unique peculiarity of the common law used in England and its former colonies. It has operated on the basis that truth does not matter since 1219, when a few London (pop. c. 25,000) judges formally rejected the truth-seeking system recently adopted by European courts.
Over the centuries, the consequences have been profound, not least for rape victims.
The adversary system
What is now called the adversary system dates from 1460, when untrained judges began to let lawyers versed in sophistry (false arguments and so on) take over control of evidence, question witnesses and spin the process out. Judges became passive.
Some questions require an explanation in the answer ‒ such as ‘have you stopped beating your husband’ ‒ but lawyers, supported by judges, insist on Yes-No answers.
In the European system, lawyers are usually not allowed to question witnesses directly lest they pollute the truth with sophistry.
Ethics
Ethics in the adversary system require the lawyer to get the best result for the client. If he is guilty, the best result is to get him off — by lying if necessary.
Law professor Monroe Freedman, who received the American Bar Association’s highest award for his work on ethics, wrote:
‘… there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal … and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’
Professor Freedman discussed a situation in which a defence lawyer knows a rape victim is telling the truth.
His position can be summarised thus:
If the rapist privately tells his lawyer he is guilty, the lawyer can still ethically let him falsely deny his crime on oath and can back up his client’s perjury by cross-examining the girl about her sex life to falsely suggest she consented.
Former president of the NSW Law Society, the late John Marsden, admitted in 2004 that he got Ivan Milat off a rape charge in 1974 via false consent. That enabled Milat to rape and murder at least seven German, English and Australian backpackers in similar circumstances. Milat was found guilty of those rape-murders in 1996.
(Image by Yalo via www.sowetanlive.co.za)
Further trauma
Another U.S. law professor, James R Elkins, has said the adversary system has a philosophy of cruelty.
At committal hearings, there are no jurors to see the cruelty. Dr S. Caroline Taylor, AM, author of Court-Licensed Abuse, said:
‘A standard tactic … is to attack complainants with such ferocity at a committal hearing that they are too afraid to go to trial.’
Frances Andrade, an English rape victim, told a woman barrister for the accused:
“This is like being raped again.”
Andrade committed suicide before the trial was over.
Relevant evidence concealed
Low charging and conviction rates in rape cases are due to a series of truth-defeating mechanisms. Most came into being in the 19th century and later, after lawyers began to defend criminals.
They include six rules which conceal evidence.
For example:
Concealing suspects’ evidence
The “right of silence” is based on a lie by the first legal academic, a serial liar named Billy Blackstone (1723-80).
The “right” enables rapists to stay out of the witness box while their victims are being subjected to cruelty and gets off a quarter of guilty defendants who hide behind it.
Concealing a pattern of criminal behaviour
In cases of alleged rape, the rule against “similar facts” conceals evidence of the suspect’s previous rapes, if any.
The rule gives jurors the false impression that a repeat offender is a first offender. It is then his word against the victim’s, and the jury formula (see below) works in the rapist’s favour.
The rule has enabled millions of repeat offenders – organised criminals, clerics who commit sex crimes on children, as well as serial rapists – to escape justice since a dubious judge, Farrer Herschell, invented it in 1894.
Judges’ power to conceal any or all evidence
In 1914, judges on the UK appeal court led by the dubious Lord Reading gave judges a non-appealable discretion to hide evidence if they feel it may unfairly “prejudice” jurors against the accused.
The concept is irrational and unfair to victims.
Evidence pointing to guilt is not unfair — it naturally and properly “prejudices” jurors against an accused.
Power to omit such evidence is thus an invitation to corrupt judges and the loaded word “prejudice” confuses the non-corrupt.
Some evidence concealed via the discretion would amaze jurors.
Beyond reasonable doubt
A seventh truth-defeating mechanism is the jury formula “beyond reasonable doubt”.
Jurors do not know what it means and judges cannot tell them it simply means: Are you sure? The formula gets off about a quarter of guilty accused.
*****
The truth-seeking French system reformed by Napoleon does not conceal evidence. Trained judges are in charge of evidence, and let witnesses give evidence as a narrative.
An authority on the system, Bron McKillop of Sydney University law school, says in France about 95% of those charged with rape are found guilty. (It might also be noted that in France, unlike Australia, the innocent are rarely charged, let alone convicted.)
The best solution for rape victims would thus be to change to a truth-seeking system, but that will not happen. Lawyers are only one-fifth of one per cent of the population, but lawyer-politicians infest legislatures in England and the colonies and have been able to block real change since the middle of the 14th century.
However, a measure of justice can be achieved by establishing a Rape Court similar to the Family Court.
The following is drawn from the Family Court’s website [IA emphasis]:
Traditionally, the Family Court of Australia, like most Australian courts, operated within an adversarial legal system. This meant disputes often involved lengthy court battles …
The Family Court has developed a new trial process … A less adversarial trial (LAT) is more closely directed by the judge … The judge, not a lawyer, determines how the trial is run and limits evidence to what is relevant to the issues in dispute.
The judge-run LAT is at least within shouting distance of Napoleon’s system and relevance would require that evidence is not concealed at rape trials.
The task for women, women’s organisations and others with a sense of justice is thus to convince lawyer-politicians they will be voted out if they do not bring down/support legislation to extend the LAT to rape cases.
Lawyers in the Federal cabinet would be prime targets. In order of public approval, according to a McNair poll in December 2013, they are: Malcolm Turnbull, David Johnston, Mathias Cormann, Joe Hockey, Julie Bishop, George Brandis, Kevin Andrews, Tony Abbott, Greg Hunt, Eric Abetz, and Christopher Pyne.
Evan Whitton is a five-time Walkley Award winning journalist and a legal historian. He is the author of Our Corrupt Legal System: Why Everyone Is a Victim (Except Rich Criminals). You can follow Evan on Twitter @EvanWhitton1.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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