The Presumption of Innocence is a cherished principle of the British people, embedded in the national consciousness as a (near) constitutional right; a bedrock upon which all criminal justice procedures have been built. Early Islamic and Roman scholars introduced the idea to British common law maintaining that, ‘the proof lies upon the one who affirms, not the one who denies, since, by the nature of things, he who denies a fact cannot produce any proof’. You can’t prove a negative: innocent until proven guilty. The French distilled into law that the burden of evidence must be on the State, since most people are, after all, not criminals.
Giving the benefit of the doubt to the accused, therefore, has both moral and empirical validity. Because of this, we extend this presumption outside of the courtroom. We quote it to each other, we warn gossips who talk of, ‘no smoke without fire’, that we must keep an open mind. So whilst it is a legal concept, it has currency in how we shape our thoughts, our media reporting, our opinions, our voting: our culture. However, precisely because the crime of rape is different to other crimes, uncritical adherence to the principle creates an issue we need to at the very least be aware of, and arguably, should actively correct.
Most crimes start from the position that a malicious act has undeniably happened. The first step in a burglary, murder, mugging, fraud or car-theft, is to catch the perpetrator; the house is ransacked, the person shot or beaten, the bank account empty. When we extend the presumption of innocence to an alleged perpetrator in this instance, it revolves around whether we believe he or she carried out the accepted crime. Do we have the right person here? When the crime happened, was that person in the vicinity? Do they have a motive? Did they leave forensic evidence? Until the police investigation has taken place, the CPS have agreed to bring the case to trial and a jury of twelve men and women have decided beyond reasonable doubt that this person indeed is the perpetrator, we accord them the presumption of innocence. In short, first the crime is established, then the presumption of innocence is accorded to the suspect.
Rape is different. Since the definition of rape is to force a person to have penetrative sex against their will, there is often either no evidence, or ambiguous evidence that a crime has happened at all. The test is whether consent was given or withheld – a moment in time which is neither recorded, nor possibly remembered. The presence of semen could be the result of consensual sex, as could bruises. Any amount of force used could have been consensual – as internet-weary adults we know that if you can imagine a sexual act, there’s a group of people who enjoy it, no matter how deviant it seems. So with rape, as the crime is different, so is the sequence of events and reactions following its report. A rape victim asserts she was raped and names the alleged perpetrator, since in the majority of cases he is known to her. Extending the presumption of innocence to him at this point has an (almost) unique ramification. We presume he is innocent of the rape she says happened. Therefore, in doing so, we simultaneously presume no crime occurred.
This is where extending the presumption of innocence to him conflicts with how we view her at the moment in time where the case is reported. Thus, unlike the majority of other criminal cases; his beneficial state of presumed innocence has a direct, negative impact on hers – not judicially yet, but socially. Make no mistake however – this is not without dramatic cost to her life, health, reputation and potentially even the verdict further down the line. More so, it can perpetuate a culture in which women are permanently disadvantaged. So, unlike the majority of other criminal cases, this brings a tangibly larger burden to the victim. She has to fight two battles now, in the court of public opinion as well as the criminal court – one to prove this aggressor committed a crime and concurrently to prove that she isn’t a liar. She is two points down. Her aggressor is at worst one point down – he only needs the court of opinion to believe he’s not lying..and in court, he need do nothing at all. That burden is on the State.
I said this state of affairs is almost unique. That is because there are of course other crimes that leave little evidence, or rely on a difference of opinion or intent (eg regarding consent) or one person’s word against another’s. Fraud is notoriously difficult to prove – did the salesman mislead the victim behind closed doors when he sold her a policy she actually didn’t need? Did my car really get stolen, or was I committing insurance fraud? No one doubted my word when I simply said it was missing. Because there are two vital dissimilarities: Firstly, we, in society, readily accord the victims of these crimes the presumption of innocence when we discuss them or report on them. There is no suspicion that the bankrupt widow is lying about not needing that policy, or the irritated middle-aged woman drove her own car off Beachy Head. We were flabbergasted when the kidnapping of Shannon Matthews turned out to be a fraud orchestrated by her parents for financial gain. It took a long operation of surveillance to convince people that Alan Knight was pretending to be in coma to receive extra benefits.
Our starting position was one of belief. Why is this? Possibly because rape is still viewed as a spectrum, with, ‘rape rape’ at one end – down an alley, at knifepoint – and, ‘risky’ sex at the other…a drunken encounter that goes wrong, a woman who usually likes rough sex changes her mind at the last moment, etc. The other crimes are binary in our collective minds – we can clearly see who is right, and who is wrong and we identify with the obvious victim. With rape, despite the fact that it IS as binary in definition as any other crime, the prevailing sense of, ‘degrees’ of rape, (a hangover perhaps from only very recent changes in the law that outlawed marital rape, court cases we all know where the victim was told she was, ‘asking for it’ because she wore a short skirt, current campaigns which tell you how to, ‘not’ get raped, rather than ‘not’ to be a rapist) mean our culture sees the crime as virtually an occupational hazard of living in society with men.
Secondly, these cultural anomalies above weren’t created randomly. They are the result of a profoundly patriarchal society where for millennia men have made the decisions, run the institutions held the power and had an unquestionable right to sex, how, where and when they want. In a world where prostitution is treated as a leisure industry, men’s orgasms are accorded a validity which one day may even attract its own trading index. If a woman is used by a man to orgasm, it’s how the world turns. From Shaggy singing, ‘It wasn’t me’, to Vicomte de Valmonte, ‘It’s beyond my control’ – men can’t help it, especially powerful men. Therefore, if a man’s reputation is ruined, as the hapless victim of a strong libido and the present incumbent of all power, it’s catastrophic. We will sacrifice the woman to preserve this natural order – witness the sympathy towards Ched Evans, the rapist, compared to his victim.
So, the victim isn’t two down to her aggressor’s one. She’s scores of points down. Her handicap is off the scale. Proving she’s not lying is to swim upstream, against the vast undercurrent of socialisation that favours the man’s position and excuses the act of rape. She’s not so much on the back foot, as not in the race – a place that many women choose to remain rather than compete against impossible odds. Too few women are reporting rape and those that do face a flattening wave of disbelief, aggression, suspicion and malice to progress past the first step. Consider a world where this tweet would have been posted in response to a as yet un-investigated claim of fraud, or medical malpractice. (‘Jackie’ is the UVA student who alleges gang rape).
Or a world where a woman who claims a famous footballer stole her car has to move house three times and change her identity, such is the backlash of hate and violence against her. Or a world where a crime which attracts such low rates of false accusations (0.62%*, and a proportion of these were from women suffering from mental health issues) but the media, including the BBC, continue to report it at best in legally inaccurate terms
and at worst openly assert the victim is lying. You can’t. It wouldn’t happen. Police read papers. Jury member are normal workers who talk in the office. Our legal system is exposed to the same cultural forces as you or me.
So a social presumption of either innocence or guilt has importance. It indirectly but definitively contributes to the judicial process, given that the process is managed by impressionable, fallible humans. I believe in assertive action to correct cultural wrongs which are too slow to correct themselves – women are being failed, suffering breakdowns, letting rapes go unreported and therefore putting their future health and wellbeing at risk, and at times, are driven to committing suicide.
When rapes go unreported, other women are raped. The status quo cannot be accepted. I believe there is a valid political position to occupy in loudly and firmly stating, ‘I believe her’ at the moment she reports assault. I believe the media should receive mandatory training and advice in believing victims, as should juries and the police. I believe women deserve to be supported and believed from the moment they state a rape occurred, to when it is reported in the press, to when it comes to court. This is in no way incompatible with the notion of a thorough investigation and trial- it is a start point, not an end point. This is a cultural adjustment which is long overdue and statistically extremely low risk. If the CPS can prove the rape did occur – that is their job and they must do it. But just like the accused, the raped woman can’t prove a negative either. She can’t prove she isn’t lying about the absence of consent. The principle was founded on the belief that most people aren’t criminals, and that has to go for her too. She desperately and immediately deserves the presumption of innocence.
I believe her.
The Select Committee is proposing that those accused of rape are granted anonymity at arrest, pre-charging. This will prevent police collecting adequate evidence to charge, as no other women will know to come forward. Most rapists rape multiple times. If they’re not charged, they will keep on raping and existing victims will see no justice. No other crime, other than those committed by minors demands anonymity. Remember – being raped is worse than being asked if you raped.
Please sign the petition and write to your MP.