How do prosecutors decide whether sexual-offence complainants are credible

political analyst · 21-08-2019 01:38PM #1

How does a public prosecutions office in a common-law jurisdiction (e.g. Ireland, Northern Ireland, England and Wales, Canada or Australia) determine the issue of whether or not a person who accuses another of a sexual offence (whether it's alleged sexual abuse of children from 2 or 3 decades ago or a recent alleged rape) is a credible witness?

How would prosecutors know that the alleged offence actually took place if the alleged victim is the only witness to the alleged sexual abuse?

How can prosecutors be certain that the alleged victim is not telling a lie?

Claw Hammer · 21-08-2019 04:54PM

political analyst wrote: »

How does a public prosecutions office in a common-law jurisdiction (e.g. Ireland, Northern Ireland, England and Wales, Canada or Australia) determine the issue of whether or not a person who accuses another of a sexual offence (whether it's alleged sexual abuse of children from 2 or 3 decades ago or a recent alleged rape) is a credible witness?

How would prosecutors know that the alleged offence actually took place if the alleged victim is the only witness to the alleged sexual abuse?

How can prosecutors be certain that the alleged victim is not telling a lie?

The prosecutors don't have to know or be certain that an alleged offence took place. The prosecutors are deciding if there is sufficient evidence to go to trial. It is a matter for the jury to decide whether or not they are sure the offence took place. Prosecutors look at the totality of the evidence gathered and decide whether not there is a case to be made which is likely to succeed. They may in fact believe the witness to be highly credible but yet be of the opinion that the defence would succeed in creating doubt in the minds of the jury such that the jury would not convict. In many rape cases the defence of consent is raised. The burden on the prosecution is therefore to negate beyond reasonable doubt that defence. It can be very difficult to do so if there are no witnesses to the act of rape itself but surrounding circumstances show that the two individuals, the victim and the alleged perpetrator, were together and friendly in the period before the alleged rape

CIARAN_BOYLE · 21-08-2019 05:58PM

Same way they do for any other crime.

Usually they ask the defendent questions and hope they crack in some way or make a mistake.

While it's a horrible thing there are jurisdictions where rape has to be resisted with force in order for a charge of rape to be raised.

If its defendent against victim's word they will try and look at people they communicated with.

So if the victim tells a friend they had consensual sex then reports for rape they won't be listened too.

Peregrinus · 22-08-2019 02:42AM

What Claw Hammer said. The question the prosecutors are asking themselves is not "Did X commit a rape?" It's "will a jury be convinced, on the evidence that we can present, that X committed a rape?" As regards the credibility of witnesses, they do not ask "Is A telling the truth?" but "will a jury find A's evidence persuasive?"

Of cousre, the two questions are related; what A says may be contradicted by, or supported by, other evidence. If contradicted, this makes it more likely that they will think A is not telling the truth, and that they will think A will not succeed in persuading a jury (who will of course also see the other evidence). Aand the other way around, if other evidences supports what A is saying.

If there is no other evidence, the prosecutors will ask themselves whether a jury will find A credible and compelling (remember, the jury has to be persuaded beyond reasonable doubt before they can convict), and they will do this based on their own experience of what juries have found credible and compelling in the past.

In general, the prosecution won't prosecute unless they expect to secure a conviction. It's regarded as oppressive, and an abuse of prosecutorial power, to prosecute somebody when you don't think the evidence is strong enough to prove guilt beyond reasonable doubt.

Dave_The_Sheep · 22-08-2019 03:02AM

I get the impression that your answers, while wholly correct, are not what our dear OP was hoping for.

Peregrinus · 22-08-2019 03:09AM

What answer do you think was wanted?

political analyst · 25-08-2019 11:00PM

Peregrinus wrote: »

What answer do you think was wanted?

What I'm trying to get to the root of is why one person's accusation of child sexual abuse has been enough in some cases to convince juries to convict - wrongfully, as proven in some cases, e.g. Michael Feichín Hannon. Here's an example from the other side of the Irish Sea.

https://www.bbc.com/news/uk-england-dorset-43048086

Peregrinus · 26-08-2019 01:08AM

The thing about sex offences, and particularly child sex offences, is that they tend not to be committed in front of witnesses. So the doubts that you may have when faced with the uncorroborated evidence of the complainant may be allayed by asking yourself the question, "Well, what other evidence would you expect, if the crime was committed as described?" If the answer is "probably no other evidence", then the absence of any other evidence doesn't have the detrimental effect that you might otherwise expect. In that situation it comes down to the credibility of the witness, which is a matter for the jury to assess.

If the prosecution authorities know of evidence which casts doubt on the witness's credibility - a history of making allegations that turn out to be unfounded, for example - they'll either not bring the prosecution in the first place, or if they do prosecute they will share that evidence in advance with the defence, so that the defence can raise it.

political analyst · 26-08-2019 05:10PM

Peregrinus wrote: »

The thing about sex offences, and particularly child sex offences, is that they tend not to be committed in front of witnesses. So the doubts that you may have when faced with the uncorroborated evidence of the complainant may be allayed by asking yourself the question, "Well, what other evidence would you expect, if the crime was committed as described?" If the answer is "probably no other evidence", then the absence of any other evidence doesn't have the detrimental effect that you might otherwise expect. In that situation it comes down to the credibility of the witness, which is a matter for the jury to assess.

If the prosecution authorities know of evidence which casts doubt on the witness's credibility - a history of making allegations that turn out to be unfounded, for example - they'll either not bring the prosecution in the first place, or if they do prosecute they will share that evidence in advance with the defence, so that the defence can raise it.

I appreciate your response.

It's just that there is a perception that the presumption of innocence is reduced in cases where the accusations are of child sexual abuse from the past. Just because the alleged victim doesn't have an apparent motive for lying, it doesn't mean that the accusation of sexual abuse is true. After all, people tell lies for various reasons - something that seems to have been lost on the prosecutors in the Dorset case that I've linked in this thread and in other cases.

Peregrinus · 27-08-2019 12:33AM

political analyst wrote: »

I appreciate your response.

It's just that there is a perception that the presumption of innocence is reduced in cases where the accusations are of child sexual abuse from the past. Just because the alleged victim doesn't have an apparent motive for lying, it doesn't mean that the accusation of sexual abuse is true. After all, people tell lies for various reasons - something that seems to have been lost on the prosecutors in the Dorset case that I've linked in this thread and in other cases.

The presumption of innocence is not reduced in historic sex abuse cases. These are, in fact, cases in which it is very difficult to secure a conviction, and there are a great many cases reported to the authorities which never result in prosecutions, because the evidence that might secure a conviction cannot be assembled.

Can't really comment on the details of the Dorset case, because the newspaper reports to you link to don't actually report the trial, or the evidence given. Was there any evidence presented to corroborate the evidence of the complainant? We're not told.

But prosecutors don't generally decide not to bring prosecutions because the chief prosecution witness might be lying. It's always true that the chief prosecution witness might be lying (not just in sexual abuse cases, but in all cases). The credibility of the witnesses is a matter a jury has to assess.

Claw Hammer · 27-08-2019 01:37PM

political analyst wrote: »

I appreciate your response.

It's just that there is a perception that the presumption of innocence is reduced in cases where the accusations are of child sexual abuse from the past. Just because the alleged victim doesn't have an apparent motive for lying, it doesn't mean that the accusation of sexual abuse is true. After all, people tell lies for various reasons - something that seems to have been lost on the prosecutors in the Dorset case that I've linked in this thread and in other cases.

The prosecutors did their job perfectly. They thought there was enough evidence upon which a jury would convict. They were right!

political analyst · 27-08-2019 02:08PM

Claw Hammer wrote: »

The prosecutors did their job perfectly. They thought there was enough evidence upon which a jury would convict. They were right!

Except that it was eventually proven that the accuser is a compulsive liar!

political analyst · 27-08-2019 02:16PM

Peregrinus wrote: »

The presumption of innocence is not reduced in historic sex abuse cases. These are, in fact, cases in which it is very difficult to secure a conviction, and there are a great many cases reported to the authorities which never result in prosecutions, because the evidence that might secure a conviction cannot be assembled.

Can't really comment on the details of the Dorset case, because the newspaper reports to you link to don't actually report the trial, or the evidence given. Was there any evidence presented to corroborate the evidence of the complainant? We're not told.

But prosecutors don't generally decide not to bring prosecutions because the chief prosecution witness might be lying. It's always true that the chief prosecution witness might be lying (not just in sexual abuse cases, but in all cases). The credibility of the witnesses is a matter a jury has to assess.

Former teacher Simon Warr was tried on charges of historical sexual abuse. He was unanimously acquitted. He currently works as a sports commentator for the BBC. You should read the stories on his Twitter account. Here's one that he tweeted yesterday.

https://twitter.com/bbcsimonwarr/status/1166001945355661312

The police couldn’t care less. The victim is currently rotting in prison, where he will in all likelihood die.

I’ve done everything humanly possible, incl sending copies of the school records to his solicitors (who don’t seem remotely interested). I’ve also tried to contact the man directly. No response.

It’s a criminal conspiracy with the aim of claiming compensation. Two liars colluded to cook up the story. One knew the target (albeit briefly), his partner in crime told a similar story, but he wasn’t at the school at the same time as the man they accused. I proved it.

Claw Hammer · 27-08-2019 03:12PM

political analyst wrote: »

Except that it was eventually proven that the accuser is a compulsive liar!

That just means the jury got it wrong, not the prosecution.

Peregrinus · 27-08-2019 03:27PM

political analyst wrote: »

Except that it was eventually proven that the accuser is a compulsive liar!

But that was on the basis of evidence that the prosecution didn't have at the time the prosecution was mounted.

Unless we know more about the evidence, what it was, how it came to light, etc, we can't necessarily criticise the prosecution for not knowing about it at the time of the prosecution decision and the trial. Maybe, with diligent enquiry, they would have uncovered the evidence; maybe not.

Claw Hammer · 29-08-2019 11:08AM

It is not like Enid Blyton where some precocious child leads the police to the villain who then solemnly announce that the villain will be going away for a long time.
It is about the police gathering all the evidence for and against all suspects, making an arrest and interviewing a suspect and sending a file to the DPP. The DPP review it and may call for further investigation. A decision is eventually taken on bringing a prosecution on the basis of the evidence. The DPP has to consider whether or not there is a reasonable possibility that a properly directed jury would convict, not decide the guilt of the accused.

political analyst · 03-09-2019 11:12PM

It appears that, in cases of alleged historical child sexual abuse, jurors are expected to choose between believing the alleged victim and believing the defendant. But that goes against the principle of reasonable doubt. A verdict of not guilty doesn't necessarily mean that jurors believe that the alleged victim is lying.

The author of this article seems to think that reaching a verdict means that the jury must take a side.

https://www.independent.ie/opinion/comment/annette-blackwell-paedophile-pell-would-be-a-free-man-here-38452750.html

Previously in Australia the law could not give weight to a single complainant's evidence unless there was also a witness who could say the victim told them about the abuse.

Judges also saw the reporting time-lapse as a problem and made assumptions around the veracity of the complaint because of it.

A five-year long Royal Commission into Institutional Responses to Child Sexual Abuse exposed the legal fault line and, with its extensive research and prolific publishing, offered a new awareness around the complexity of responses to childhood abuse.

Commission public hearings exposed how perpetrators of abuse were protected by their institutions and how the criminal and civil justice systems were failing and sometimes re-traumatising victims.

The result is judges now warn juries the delay in complaining does not mean the allegation is false and there are good reasons why people have hesitated in coming forward.

Time and time again over the five years the chair of the commission, Justice Peter McClellan, gave public addresses at law societies and judicial colleges about the difficulties faced by complainants in that system.

"Many of these difficulties arose from what are now recognised as unfounded assumptions that judges have made about the behaviour and reliability of sexual assault complainants.

"These assumptions found expression in jury directions given by judges," he told a law conference in Victoria in 2017.

In the two years since the commission ended there have been changes to the rules in criminal and civil cases around child sex abuse.

How do prosecutors decide whether sexual-offence complainants are credible

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