False rape accusation...who would you believe?

iptba · 06-08-2020 05:16PM

Report after Belfast rugby rape case calls for anonymity of all sex trial defendants

Ellen Coyne

August 06 2020 02:30 AM

People accused of sexual assault would be granted anonymity in all cases, not just rape trials, under sweeping reforms of how sexual offences cases are carried out.

https://www.independent.ie/irish-news/report-after-belfast-rugby-rape-case-calls-for-anonymity-of-all-sex-trial-defendants-39427510.html

People accused of rape are currently given anonymity during a trial, until they are convicted.

The report said there was "no logical reason" why this shouldn't also apply to people accused of sexual assault.

The report also said that while giving anonymity to people accused of sexual offences was a "contested" issue, there is a "heavy stigma" associated with being accused of a sexual offence.

One eyed Jack · 06-08-2020 05:31PM

iptba wrote: »

https://www.rte.ie/news/ireland/2020/0806/1157616-sexual-offences-review-reaction/

Interesting to see all the use of the term "victim" in this report. I also just heard it by another report author on the news on Newstalk.

It's not a neutral term and basically doesn't give a presumption of innocence to the defendant.

That’s because being a victim of rape has nothing to do with anyone’s right to the presumption of innocence. A defendant accused of rape still maintains the presumption of innocence in Law before, during, and provided they aren’t found guilty, they maintain the right to the presumption of innocence following a trial.

It’s up to the State to prove their case against a defendant and in that context the alleged victim appears as a witness for the State. Charlie McCreevy made the point when he was Minister for Justice at the time that the review group should review how vulnerable witnesses, including defendants, are treated in the investigation and prosecution of sexual offences -

Despite these differences in legislation between Northern Ireland and the Republic, the then Minister for Justice Charlie Flanagan asked the working group to review how vulnerable witnesses, including defendants, are treated in the investigation and prosecution of sexual offences.

Report recommends anonymity for those accused of all sexual offences

One of the recommendations of the report was that defendants in all cases related to sexual offences be granted anonymity, not just in cases of rape. It’s not something I personally agree with, because I believe justice must be seen to be served publicly, exceptions being made to protect the identity of the victims in some cases, but I haven’t had a chance to read the full report yet to see exactly what’s being suggested.

06-08-2020 05:50PM

iptba wrote: »

Interesting to see all the use of the term "victim" in this report. I also just heard it by another report author on the news on Newstalk.

It's not a neutral term and basically doesn't give a presumption of innocence to the defendant.

A victim of crime is still a victim, whether anyone is found guilty or not.

iptba · 06-08-2020 06:43PM

One eyed Jack wrote: »

That’s because being a victim of rape has nothing to do with anyone’s right to the presumption of innocence. A defendant accused of rape still maintains the presumption of innocence in Law before, during, and provided they aren’t found guilty, they maintain the right to the presumption of innocence following a trial.

It’s up to the State to prove their case against a defendant and in that context the alleged victim appears as a witness for the State. Charlie McCreevy made the point when he was Minister for Justice at the time that the review group should review how vulnerable witnesses, including defendants, are treated in the investigation and prosecution of sexual offences -

Despite these differences in legislation between Northern Ireland and the Republic, the then Minister for Justice Charlie Flanagan asked the working group to review how vulnerable witnesses, including defendants, are treated in the investigation and prosecution of sexual offences.

You yourself used the phrase "alleged victim" which seems much more accurate and appropriate.

One eyed Jack · 06-08-2020 09:24PM

iptba wrote: »

You yourself used the phrase "alleged victim" which seems much more accurate and appropriate.

They would be the alleged victim of a crime who is appearing as a witness in the trial of a defendant who is accused by the State of committing a criminal offence.

That doesn't suggest they haven't been raped, it's the defendant is on trial, not the victim.

You made the point that referring to the victim as the victim somehow has any bearing on the defendants right to the presumption of innocence - it doesn't.

iptba · 06-08-2020 09:53PM

One eyed Jack wrote: »

You made the point that referring to the victim as the victim somehow has any bearing on the defendants right to the presumption of innocence - it doesn't.

My point was not necessarily meant to be in a literal, legal sense that the “presumption of innocence” no longer existed. It was to do with perception of innocence or guilt and need for caution in discussions of what may have happened in particular cases. Your wording of “alleged victim” seems preferable in some contexts.

One eyed Jack · 06-08-2020 10:18PM

iptba wrote: »

My point was not necessarily meant to be in a literal, legal sense that the “presumption of innocence” no longer existed. It was to do with perception of innocence or guilt and need for caution in discussions of what may have happened in particular cases. Your wording of “alleged victim” seems preferable in some contexts.

I don’t see any reason why the report should refer to victims of crime as though they are alleged victims? It’s completely separate to any issues pertaining to a defendant or defendants in any case. Undoubtedly referring to the alleged victims of a person or persons accused of committing a criminal offence is appropriate in the context a trial, but that’s because they are allegedly a victim of the person who is accused of a criminal offence.

They are still the victim of rape or sexual assault if they have been raped or sexually assaulted, and it’s in that context that the report refers to a need for greater resources and changes in procedures for victims, as opposed to alleged victims. That’s not saying anything about anyone else but the victims of crime.

To be honest I see this as a good thing for the victims of rape and/or sexual assault, both male and female.

neonsofa · 07-08-2020 01:00PM

bubblypop wrote: »

A victim of crime is still a victim, whether anyone is found guilty or not.

I understand what you mean, and I wholeheartedly agree. However I think what the poster was saying was if a case is brought where a woman says she was raped and a man says it was consensual sex, if we say she was the victim of crime in that case, it seems implied that we believe her version of events and not his, because he is claiming no crime was ever committed. I am not claiming that this applies in the legal sense, just that I can see what the poster means by the language not being neutral.

07-08-2020 01:06PM

neonsofa wrote: »

I understand what you mean, and I wholeheartedly agree. However I think what the poster was saying was if a case is brought where a woman says she was raped and a man says it was consensual sex, if we say she was the victim of crime in that case, it seems implied that we believe her version of events and not his, because he is claiming no crime was ever committed. I am not claiming that this applies in the legal sense, just that I can see what the poster means by the language not being neutral.

That's that poster implying that. A victim of a crime, any crime, is a victim. If my house was burgled & someone was found not guilty in court, then I am still a victim of burglary.
It has nothing to do with the defendant in a criminal trial.

joeguevara · 07-08-2020 01:13PM

bubblypop wrote: »

That's that poster implying that. A victim of a crime, any crime, is a victim. If my house was burgled & someone was found not guilty in court, then I am still a victim of burglary.
It has nothing to do with the defendant in a criminal trial.

I think what the poster was getting at is that in the case of any sexual crime, the act of sex is rarely in doubt, and the people involved are rarely in doubt but consent is. By calling someone a victim, it gives the illusion that the accused is guilty. It is slightly different to a burglary case where it is rarely in doubt that there was a break in and goods were stolen but who actually did the act is in doubt.

While this is slightly a moot point as the 'victim' would never, or shold never be called a victim in court, I think for the purposes of the document they should be classified as the accuser.

neonsofa · 07-08-2020 01:30PM

bubblypop wrote: »

That's that poster implying that. A victim of a crime, any crime, is a victim. If my house was burgled & someone was found not guilty in court, then I am still a victim of burglary.
It has nothing to do with the defendant in a criminal trial.

If I give 100 euro to my friend and then claim afterwards that she took it from my purse without my permission, did a crime occur? I'm not referring to whether my friend is found guilty or not in a court of law. I'm referring to whether or not a crime was actually committed in the first place. If people call me the victim of a crime in that case, they are implying that I was the victim of theft, and that a theft took place. My friend would argue that a theft never took place, no crime was committed and so I cannot be the victim of a crime. I am not referring to someone being found not guilty and therefore they are "innocent" and no crime occured. I am talking about when it is not yet established whether a crime actually occurred at all.

I am not saying the language is incorrect in a legal sense. Just I can see why the poster is saying it isn't neutral language. Accuser would be more appropriate.

Rodney Bathgate · 07-08-2020 01:34PM

bubblypop wrote: »

A victim of crime is still a victim, whether anyone is found guilty or not.

Was the lady who falsely claimed she was sexually assaulted by a well known comedian a ‘victim’? The case was thrown out of court by the judge because CCTV evidence showed that what she claimed happened did not happen.

She wasn’t a victim, if anyone was a victim, he was.

Tea drinker · 07-08-2020 01:40PM

bubblypop wrote: »

A victim of crime is still a victim, whether anyone is found guilty or not.

But shoe on the other foot, maybe the only crime is a false accusation of rape, does the victim (from the outset) receive free legal aid.

One eyed Jack · 07-08-2020 01:42PM

joeguevara wrote: »

I think what the poster was getting at is that in the case of any sexual crime, the act of sex is rarely in doubt, and the people involved are rarely in doubt but consent is. By calling someone a victim, it gives the illusion that the accused is guilty. It is slightly different to a burglary case.

While this is slightly a moot point as the 'victim' would never, or shold never be called a victim in court, I think for the purposes of the document they should be classified as the accuser.

That wouldn’t make any sense, as the document refers to support for victims of rape and sexual assault? ‘Accuser’ would make no sense in that context. It’s used here too, to refer to victims of crime, not ‘accusers’ -

Criminal Justice (Victims of Crime) Act 2017

It’s a neutral term that isn’t saying anything about anyone else other than the person who is the victim of a crime. If they’re not the victim of a crime then obviously, they’re not a victim of a crime and they’re not who the document is referring to.

joeguevara · 07-08-2020 01:48PM

One eyed Jack wrote: »

That wouldn’t make any sense, as the document refers to support for victims of rape and sexual assault? ‘Accuser’ would make no sense in that context. It’s used here too, to refer to victims of crime, not ‘accusers’ -

Criminal Justice (Victims of Crime) Act 2017

It’s a neutral term that isn’t saying anything about anyone else other than the person who is the victim of a crime. If they’re not the victim of a crime then obviously, they’re not a victim of a crime and they’re not who the document is referring to.

Its not a neutral term as even the interpretation in the Act that you provided states'“victim” means a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence.

As I said, in the case of the type of crime being discussed, it is quite possible that the offence didn't occur in the first place. (Btw I was explaining why I think the original poster raised it not what my beliefs are).

One eyed Jack · 07-08-2020 02:05PM

joeguevara wrote: »

Its not a neutral term as even the interpretation in the Act that you provided states'“victim” means a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence.

As I said, in the case of the type of crime being discussed, it is quite possible that the offence didn't occur in the first place. (Btw I was explaining why I think the original poster raised it not what my beliefs are).

That’s saying nothing about the accused though, which ipta’s point that referring to the victim as the victim somehow implies that the accused is guilty. It doesn’t. It implies that the person has been the victim of a crime. That’s how they are to be treated, as the victim of a crime -

Application of Act

4. (1) The provisions of this Act shall not apply to a decision referred to in section 8 (2)(c), (d), (e) or (f) which is made before the commencement of the provisions concerned.

(2) The application of this Act is not dependent on the commission of an offence having to be established (nor is it dependent on establishing whether the person concerned suffered any harm caused by an offence).

joeguevara · 07-08-2020 02:11PM

One eyed Jack wrote: »

That’s saying nothing about the accused though, which ipta’s point that referring to the victim as the victim somehow implies that the accused is guilty. It doesn’t. It implies that the person has been the victim of a crime. That’s how they are to be treated, as the victim of a crime -

Application of Act

4. (1) The provisions of this Act shall not apply to a decision referred to in section 8 (2)(c), (d), (e) or (f) which is made before the commencement of the provisions concerned.

(2) The application of this Act is not dependent on the commission of an offence having to be established (nor is it dependent on establishing whether the person concerned suffered any harm caused by an offence).

Can you not see how it could be construed in this situation, specifically since there are examples of very recent false accusations?

However, it is such a minor point to be discussed and the document should be applauded for some very positive recommendations which protect the accused and the accuser.

One eyed Jack · 07-08-2020 02:36PM

joeguevara wrote: »

Can you not see how it could be construed in this situation, specifically since there are examples of very recent false accusations?

However, it is such a minor point to be discussed and the document should be applauded for some very positive recommendations which protect the accused and the accuser.

I can certainly see how it’s being construed alright, particularly in light of recent cases where false allegations were made or the defendants were found not guilty. It’s cobbling together a couple of different ideas to suggest that victims of crime should not be treated as victims of crime until the person or persons who is/are accused by the State of having committed a crime is found guilty.

That’s simply not how investigations of crimes are carried out. The person or persons who make a complaint are treated as the victims of crime, and the Gardaí carry out an investigation to determine whether a crime has been committed, and who is responsible for committing a crime. The person who is accused by the State of having committed an offence is entitled to a trial if they maintain they are innocent. It still doesn’t suggest that the person isn’t the victim of a crime.

The recommendations are intended to offer further protections to both the victims of crime and to defendants, rather than the accuser and the accused. Obviously it doesn’t offer any protection to people who make false allegations, because they’re not the victims of crime. If the DPP considers it is in the public interest, they may well pursue a case against the person or persons for attempting to pervert the course of justice. If a person is found not guilty it doesn’t mean a crime hasn’t been committed either, it means the person who is accused by the State of having committed a crime maintains the presumption of innocence in law, and their good reputation remains intact.

joeguevara · 07-08-2020 02:40PM

One eyed Jack wrote: »

I can certainly see how it’s being construed alright, particularly in light of recent cases where false allegations were made or the defendants were found not guilty. It’s cobbling together a couple of different ideas to suggest that victims of crime should not be treated as victims of crime until the person or persons who is/are accused by the State of having committed a crime is found guilty.

That’s simply not how investigations of crimes are carried out. The person or persons who make a complaint are treated as the victims of crime, and the Gardaí carry out an investigation to determine whether a crime has been committed, and who is responsible for committing a crime. The person who is accused by the State of having committed an offence is entitled to a trial if they maintain they are innocent. It still doesn’t suggest that the person isn’t the victim of a crime.

The recommendations are intended to offer further protections to both the victims of crime and to defendants, rather than the accuser and the accused. Obviously it doesn’t offer any protection to people who make false allegations, because they’re not the victims of crime. If the DPP considers it is in the public interest, they may well pursue a case against the person or persons for attempting to pervert the course of justice. If a person is found not guilty it doesn’t mean a crime hasn’t been committed either, it means the person who is accused by the State of having committed a crime maintains the presumption of innocence in law, and their good reputation remains intact.

And this documents recommendations surrounding anonymity of the accused definitely makes it easier to and more likely that their good reputation remains intact. I actually think its an interesting point to debate from an academic stand-point but in reality is irrelevant as the accused will never hear or see the accuser being characterised as a 'victim' when they receive their legal advice.

One eyed Jack · 07-08-2020 02:51PM

joeguevara wrote: »

And this documents recommendations surrounding anonymity of the accused definitely makes it easier to and more likely that their good reputation remains intact. I actually think its an interesting point to debate from an academic stand-point but in reality is irrelevant as the accused will never hear or see the accuser being characterised as a 'victim' when they receive their legal advice.

It really doesn’t as it doesn’t serve the interests of justice which must be seen to be done by the public in order to maintain the confidence of the public in the judicial system.

The defendant will of course see the victim referred to as the victim by the prosecution. The idea of neutrality just doesn’t apply to an adversarial justice system in reality.

joeguevara · 07-08-2020 02:59PM

One eyed Jack wrote: »

It really doesn’t as it doesn’t serve the interests of justice which must be seen to be done by the public in order to maintain the confidence of the public in the judicial system.

The defendant will of course see the victim referred to as the victim by the prosecution. The idea of neutrality just doesn’t apply to an adversarial justice system in reality.

I saw you raise this public thing previously. They are being tried in public (albeit in camera in most cases). Just because Margareet doesn't get to see a name in the Daily Mirror while shes having her morning fag and coffee doesn't mean confidence is lost in the our judicial system.

It would be stopped very quickly if I heard someone referred to as victim in a court of law. If the prosecution continued to call someone that, it would be grounds for a mistrial.

neonsofa · 07-08-2020 03:08PM

joeguevara wrote: »

And this documents recommendations surrounding anonymity of the accused definitely makes it easier to and more likely that their good reputation remains intact. I actually think its an interesting point to debate from an academic stand-point but in reality is irrelevant as the accused will never hear or see the accuser being characterised as a 'victim' when they receive their legal advice.

Exactly. Nobody, as far as i can see, is arguing that we stop treating people as a victim of crime if they claim to be one, or that the term victim should only be used once the accused is found guilty in a court of law. It was just stated that its not very neutral language, especially in instances where it hasn't been established whether a crime actually occurred in the first place. Its a fairly straightforward term in instances where there is no denying a crime occured, like a murder or the example of burglary someone used earlier, but not so much when it is relating to cases that involve the issue of consent, because it is more nuanced and complex. Its not that anybody is arguing a legal basis for changing that language or disagreeing with the content of the document shared, I can just see where they are coming from that the language doesnt seem very neutral when its being discussed in the context of presumption of innocence, especially regarding crimes that relate to consent, which are extremely difficult to prove/disprove. I dont think anybody was claiming that its "wrong" or has no legal basis, just that they would consider alternative terms to be more appropriate given the context. People can have an opinion on something while still accepting that it is the way it is for a reason, and without discrediting the original intention behind it.

07-08-2020 03:12PM

Rodney Bathgate wrote: »

Was the lady who falsely claimed she was sexually assaulted by a well known comedian a ‘victim’? The case was thrown out of court by the judge because CCTV evidence showed that what she claimed happened did not happen.
.

No, she obviously wasn't a victim. She wasn't a victim of a crime therefore not a victim. If she falsely accused someone, she obviously committed a crime.

07-08-2020 03:14PM

Tea drinker wrote: »

But shoe on the other foot, maybe the only crime is a false accusation of rape, does the victim (from the outset) receive free legal aid.

I'm not sure what you mean here, but if you mean a defendant then they are entitled to legal aid, if they are entitled to it. Whether falsely accused or not

joeguevara · 07-08-2020 03:14PM

Justice Carney (RIP) raised a very interesting argument previously about how family members of murder victims should not get to read out a victim impact statement as they have not suffered harm directly as a result of an offence. His argument was that it was indirect and raised huge commotion.

07-08-2020 03:22PM

neonsofa wrote: »

especially in instances where it hasn't been established whether a crime actually occurred in the first place.

I'm fairly sure the DPP doesn't direct charges in a case where it hasn't been established that a crime occured.
The court doesn't decide whether a crime has been committed or not, they decide whether a defendant is guilty or not guilty.

I think this is the problem with some rape cases. People automatically assume no crime was committed if the defendant is found not guilty. The courts don't decide that.

joeguevara · 07-08-2020 03:35PM

bubblypop wrote: »

I'm fairly sure the DPP doesn't direct charges in a case where it hasn't been established that a crime occured.
The court doesn't decide whether a crime has been committed or not, they decide whether a defendant is guilty or not guilty.

I think this is the problem with some rape cases. People automatically assume no crime was committed if the defendant is found not guilty. The courts don't decide that.

If no crime has been committed and has been established as being committed then nobody can be found guilty or not guilty. You cant find someone not guilty of something, if something never happened. With every criminal case, the first thing that has to be established is that the offence took place and the second is that the accused committed it beyond a reasonable doubt.

But the issue is that in every (or at least the vast majority rape case the actual act of penetration has occurred and the only thing in dispute is whether it was consensual or not. And as everyone has a presumption of innocence, until found guilty, that presumption remains. Therefore, in the eyes of the court, a not guilty verdict means the person remains innocent.

neonsofa · 07-08-2020 03:36PM

bubblypop wrote: »

I'm fairly sure the DPP doesn't direct charges in a case where it hasn't been established that a crime occured.
The court doesn't decide whether a crime has been committed or not, they decide whether a defendant is guilty or not guilty.

I think this is the problem with some rape cases. People automatically assume no crime was committed if the defendant is found not guilty. The courts don't decide that.

I've said it a couple of times now that I am not referring to the accused being found guilty or not in a court of law. I am well aware that not guilty is not the same as innocent. Nobody has claimed it is here.

The most high profile case here was basically a case of "was it consensual or not". Obviously it was more complex than that, but the main issue was determining if consent was given. I understand it wasnt the DPP, it was the PPS, but it is one of those crimes where it is so nuanced we cannot definitively say that a crime was committed when that is determined by whether consent was given/sought. Hence the difficulty in prosecuting, there needs to be sufficient evidence for it to progress, but due to the nature of the crime, evidence isn't always as straight forward as it is with other crimes. Its a hugely complex area, its not black and white, and thats why there are so many issues in pursuing justice when it comes to rape.

Rodney Bathgate · 07-08-2020 03:40PM

bubblypop wrote: »

No, she obviously wasn't a victim. She wasn't a victim of a crime therefore not a victim. If she falsely accused someone, she obviously committed a crime.

So how does that does that fit in with “A victim of crime is still a victim, whether anyone is found guilty or not.”

The alleged crime didn’t happen, so calling someone a victim before it has been established that a crime has actually happened is misleading, as this case clearly shows.

She was an alleged victim when she made the accusation and when the court case started.

Just because she says she was a victim does not make her a victim.

07-08-2020 04:11PM

Rodney Bathgate wrote: »

So how does that does that fit in with “A victim of crime is still a victim, whether anyone is found guilty or not.”

The alleged crime didn’t happen, so calling someone a victim before it has been established that a crime has actually happened is misleading, as this case clearly shows.

She was an alleged victim when she made the accusation and when the court case started.

Just because she says she was a victim does not make her a victim.

She is not a victim because a crime didn't take place.
A crime can still take place whether anyone is found guilty or not.

False rape accusation...who would you believe?

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