Liberty is a Fragile Treasure

The Politics of Guilt and Pity Trump Justice

People charged with a crime have to be proved guilty beyond reasonable doubt to be convicted.  This is not a tangential, but a fundamental, component of our system of justice.  The burden of proof is on the accuser, and his agents--the police and inquisitorial agencies of the State.

Judicature is structured this way--and has been for centuries--because the power, resources, and influence of the State are so much greater than a citizen's.  There are other principles set in concrete to afford similar safeguards and protections.  The accused cannot be compelled to testify against himself.  Again the reason is the mismatch of power between the State and the accused.  The State has the power to "lean" on an accused, with threats, intimidation, even torture.  "Confessions" under even the hint of duress are thrown out immediately--which is why interviews are extensively videoed and audio-taped.  They provide evidence of no duress by the State.

It is disconcerting, however, when the politics of guilt and pity intrude.  These fundamental principles of justice set down to maintain the integrity of judicature can be tossed overboard in an emotive tsunami.  The NZ Labour Party, polling in the twenties percent range, desperate to strike some resonance amongst the few identity-orientated groups which still maintain lingering vestiges of support, has come forth proposing to dismantle "proof beyond reasonable doubt".  This from the NZ Herald:

The Labour Party's plan to reform the criminal justice system would mean that the accused in a rape case would have to prove consent to be found innocent -- a change it acknowledges as a monumental shift.  But Labour's justice spokesman Andrew Little said the current system is broken and in need of a major shake-up. The party favours an inquisitorial system, where a judge interviewed the alleged victim after conferring with prosecution and defence lawyers.  The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual.

So, let's boil this down.  In an allegation of rape, the Crown would have to prove that the accused had sexual intercourse with the alleged victim.  Easy peasie.  DNA will do it every time.  As soon as the DNA test comes back positive, the defendant would then have to prove that the rape was consensual.  How might he or she do that?  Sexual intercourse, by its very nature, tends to be a private matter.  Rapidly, the evidential basis to a case would boil down to a "he said, she said" imbroglio.  In that case, the defendant would be convicted, since he or she could not prove that the sex was consensual.

This change rests on the radical new principle that all sexual intercourse would be presumed to be rape unless proven otherwise.  Oh no, no, no said Labour's Justice spokesman, Andrew Little.  That's not what I meant at all.  That's not it at all.

He said the issue of proof would only apply where allegations of rape had been raised.  "It is pretty radical thing to say that 'all sex is rape' unless you prove consent. The reality is that in 99.9 per cent of cases, no one is being asked to prove consent."

How's that for a compelling refutation of criticism.  Since in the vast majority of cases, no-one asks you to prove consent, it's OK.  But if someone should ask, you have to prove it, and then the presumption is that it was rape.  But that's not to say that the law would proceed on the idea all sex is in principle non-consensual.  Not at all.  It's only when someone would say it was non-consensual, and then it would become non-consensual de jure and you would have to prove otherwise.  And, by the way, I come from Planet Mars.  

Why, we ask, would Little not argue that this should be applied to all criminal cases.  Take family violence, for example, which now includes verbal abuse.  In the vast majority of verbal communication there is no abuse.  Little, if consistent, would be arguing that in principle all communication between human beings would be regarded as non-abusive.  But if someone should say you have spoken abusively, you would have to prove that you did not.  Otherwise you would be held guilty.  Good luck with that. 

"I don't accept that that is creating an offence under which the defendant is guilty until proven innocent."  He acknowledged the change would be a "huge leap".

You don't say.  Oh, said Labour's Justice spokesperson, we know that this is a radical change to the justice system, but it just has to be done.  Why.  Guilt and pity, dear chap. 

"But when you look at the volume of sexual violence cases and the 1 per cent of cases that result in a conviction, there is something wrong with the way we are handling sexual violation cases. The circumstances may well justify doing something radically different.

Andrew Little--and his party--feel guilty that so few sexual violence cases end up with a conviction. That's because he and his fellow MP's have doubtless engaged in sexual intercourse, all instances of which would now be implicitly non-consensual. Little and his colleagues feel they, along with everyone else, are guilty of rape.  Under Little's "reform" they would have to prove that they didn't. 

To try to create a good impression about their own sexual activity they have concocted a "guilty until proven innocent" approach--to help create the impression that they, of all people, would not be guilty of rape.  Otherwise why would they advance such a radical measure?  They are telling us all (and themselves) that they are the good guys.  They hate rape.  They would never have committed it.  Which is to say they have an abundance of proof in each and every occasion they have participated in sexual intercourse they have documentary or scientific evidence that it was completely consensual. 

This is a mere sop to the last few identity-groups that still support them.  But for politics sake they would merrily dismantle some of the core fundamental foundations of justice and judicature which have served us well for centuries.  Little is a revolutionary, and a stupid one at that. 

We are waiting for the questions in the House:

Has the Labour Justice Spokesman engaged in sexual intercourse? Yes.

Has the Labour Justice Spokesman ever engaged in non-consensual sex?  No.

What proof can the Labour Justice Spokesman table in this House that he has never engaged in non-consensual sex?  None.

Then, we submit, Mr Speaker that the Labour Justice Spokesman is a rapist, and is unfit to sit in this House.

No doubt some readers will take umbrage at the allegation that Andrew Little has been guilty of rape.  Umbrage away.  Little wants the burden of proof to be upon the accused.  We are merely taking him at his word.  Prove away, Andrew.