Because Wings Over Scotland has theoretically shut up shop, I haven’t been keeping an eye on the site, and I was surprised to discover today that there have been a couple of brief updates since I last checked. One of them is a thoroughly disturbing result from a Panelbase poll commissioned by Wings. It found that 26% of Scottish voters want the presumption of innocence to be abolished for men accused of rape, with the accusation regarded as true unless the defendant can disprove it. A further 22% want jury trials to be abolished for rape cases, in order to address what the poll question implies is an abysmally low conviction rate.
What I find curious is that Stuart uses the title “Believing Her”, which – unless it’s meant ironically – might give the impression of approving of the poll results, something which would be totally at odds with his views on a high-profile court case last year. He did not believe the complainers in that case, and based on the verdict he was entirely right not to do so. So would he really be keen on a system that would have required the court and the jury to start with the assumption that those complainers were telling the truth?
It’s sometimes said that false allegations of sexual assault are exceptionally rare – but a) that claim is not uncontested, and b) even if it’s right, nobody seriously argues that false complaints are totally non-existent. Reversing the burden of proof would almost certainly see men go to prison for sex crimes they did not commit – the only question is how many. There are good reasons for suspecting that the amount of false complaints would skyrocket once people realise that they can easily destroy someone they have a grudge against, and without any particularly high risk of repercussions.
Of course in the real world, no government in a liberal democracy would introduce a presumption of guilt, regardless of public opinion on the matter. However, the fact that so many people hold such an extreme view means that the government could be pushing at an open door if they opt to erode the safeguards for defendants in more limited ways. This is the end result of an ideology that would have us believe that the role of the courts is to provide a service for complainers by securing a conviction, rather than to test the allegations and establish whether or not they are true.
In fairness, people who took part in the poll were probably heavily influenced by the claims made in the question wording about the conviction rate for rape and how it is supposedly much worse than for other crimes. That made it very hard for respondents not to say that “something drastic must be done”. But there is an alternative point of view – this blogpost (written, I believe, by a Liberal Democrat) compellingly advances the view that an apples and oranges comparison may be creating a very misleading impression of the statistics.
34% of respondents in the Wings poll take a relatively moderate stance by saying that the conviction rate should be boosted by abolishing the Scots law requirement for corroborating evidence. This wouldn’t drive a coach and horses through the principles of justice in quite the same way as a presumption of guilt or the abolition of jury trials. Nevertheless, my recollection is that corroboration is regarded by legal experts as balancing out other disadvantages that defendants have under Scots law – for example the fact that they can be found guilty of serious crimes on the basis of just eight votes on a fifteen-strong jury. That is not the case in England, and it may be that we’d need to reconsider the question of a threshold for majority verdicts if the need for corroboration was to be discarded.
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