However, this great, impersonal awesome machinery has one built-in bias. It is an unconscious, functional bias, somewhat like an aircraft’s bias for leaving the ground as soon as it has attained a certain speed. The bias of the justice system is to find guilt. That is, first, to define any human act that comes to its attention as a crime; then, to define any suspect as a person who has probably committed such an act; and finally, to define any human being who has committed such an act as a criminal. That’s the way the justice system flies.
Everyone knows that in an individual case none of this may be true – yet the great machine of the criminal-justice system may thunder down the runway and take off regardless. (E. Greenspan, p. 260)
The concept of the “presumption of guilt” is one that I was introduced to by reading Hersh Wolch Q.C.’s excellent lecture in “Counsel for the Defence: The Bernard Cohn Memorial Lectures in Criminal Law” (Amazon). Wolch argues that, despite the theory of a presumption of innocence, in practice, it usually operates more like a presumption of guilt. It’s a point that seems a daily reality to one who works in the criminal defence trenches, and it’s persuasively argued in Greenspan’s 1987 book “The Case for the Defence” – Macmillan (Amazon).
Greenspan’s book is excellent. Among other subjects, he discusses problems with the direction in which sexual assault laws in Canada were heading back then. Frankly, he was right on most counts. I’d say his words are more timely now than they were when he wrote them some 35 years ago. I’ll quote extensively from pages 224-244:
The problem here was simple. Our knowledge of human nature has always suggested that, on the whole, a real victim of sexual assault (or any other type of crime) would complain of it at the first reasonable opportunity. However, the new rules, while making life potentially easier for a lying complainant, made it harder for those truthful victims who did complain. Hindering witnesses who are somewhat more likely to tell the truth in order to help those who are somewhat more likely to lie did nothing, in my view, to assist the courts in their primary purpose, which is to arrive at a just result.
For instance, in common law the “recent complaint” rule used to permit complainants to bolster their own testimony by leading evidence that they had complained about being sexually assaulted at the first reasonable opportunity. This was simply to show consistency on their part – something that no other type of witness would be allowed to show (unless the other side challenged them by suggesting that their evidence was a recent fabrication). The rule favoured complainants. The downside of the rule was that, in the words of one judgment, “the jury must … be instructed that the absence of a recent complaint gives rise to an inference that tells against the truthfulness of a complainant’s evidence.” This rule was abolished. Curiously, while abrogating the rule made it easier to bring sexual-assault charges about which the complainant said nothing to anyone – whether at the first reasonable opportunity or ever – it took away a complainant’s chance to show the consistence of her allegation by a recent complaint.
Corroboration requirements were also abrogated, giving rise to a similar dichotomy. Judges used to be required to warn juries that, while it was open to them to convict on the uncorroborated evidence of a complainant, it was dangerous to do so, unless some other evidence connected her story to the alleged offence in some material particular. The abolition of this rule was actually welcomed by many defence lawyers, since in practice it often had the effect during the judge’s charge of focusing the jury’s attention on dozen of insignificant or dubious details in the Crown’s case as “corroborating” the complainant’s story. (For instance, the grass being flattened on a piece of ground could be held to “corroborate” a complainant’s story that she was raped at that spot – even though the fact in itself was just as consistent with the defendant’s claim that he had consensual intercourse with the complainant: the grass would be flattened in either case.) Still, while some reforms were needed, the total abrogation of corroboration rules tended to turn sexual-assault trials into a “her word against his” type of contest in which neither the truthful complainant nor the truthful accused could expect any help from the rules of evidence.
But all of this was dwarfed by the real problem, which was to severely curtail the defendant’s ability to test the complainant’s evidence against him through cross-examination. In some respects, complainants ceased to be compellable witnesses altogether. A complainant could no longer be asked many types of questions about her conduct – not even in a closed voir dire hearing to help a judge determine whether or not he should allow those questions to be asked in front of a jury.
The reasons for curtailing cross-examination were to save complainants from embarrassment, to protect their privacy, and to encourage them to come forward with complaints. However, whatever their merits, these reasons were not sufficient to deny natural justice to a man presumed to be innocent by preventing him from confronting his accuser, or to stop a judge from even considering whether an accused, by not being able to ask these questions in a given case, would be denied natural justice or not.
It was becoming increasingly difficult for anyone accused of sexual assault to exercise a citizen’s fundamental right to make full answer and defence to a criminal charge. […]
Evidently, many judges had not yet resigned themselves to asking participants to submit to a test of fire, as courts did in the Middle Ages, to see who was telling the truth. They wanted to preserve cross-examination – the finest instrument the law has for separating fact from fancy.
Some of then new laws were downright silly. For instance, a kiss could be defined as a sexual assault if the recipient did not consent it, and a charge could be brought against spouses actually living with each other. I theory, this made it possible for a husband to be found guilty of sexual assault on the following fact situation:
HUSBAND (to his wife after a disagreement): Oh, let’s kiss and make up.
HUSBAND: Aw, come on. (He kisses her. Enter police. Arrest, trial, conviction.)
The media – usually the keenest watchdog against any unfairness or injustice in society – often seemed to lose all sense of fairness when it came to feminist issues. Journalists would wax indignant over a judge’s sentencing a rapist to “only” four years in prison “in spite of the Crown’s demand for a sentence of ten years”. I could hardly believe my eyes seeing such examples. What did the Crown’s “demand” have to do with whether or not the sentence was appropriate? In the same courthouse on the same day, as the reporter ought to have known, judges were sentencing to four years all kinds of non-sexual offenders for whom Crown attorneys were also “demanding” ten-year sentences. It is a normal part of the adversary process for the Crown and defence to make widely disparate sentencing submissions, and for the judge to decide what is right. The press might have just as easily reported that despite a defence lawyer’s submission for an eighteen-month sentence in reformatory, the judge gave the accused four years in a penitentiary.
But some feminists wanted to “re-educate” judges – that is, to bully and coerce them to look at everything from their point of view – and latched upon the idea of using the media for the purpose. Perhaps this was made possible by the fact that reporters assigned to cover the courts (with some honourable exceptions) know surprisingly little about the law. Unlike journalists assigned to cover science, politics, or entertainment, court reporters and their editors often do not have even a well-educated layman’s understanding of the legal process about which they are expected to inform the public. (This is not just my opinion, incidentally; it was a frequently expressed complaint of Canada’s late Chief Justice, Bora Laskin.)
Nothing illustrates this better than two recent examples in which judges were vociferously castigated in the press for remarks made in the course of sexual-assault trials.
In one case a judge, while sentencing a man to a prison term for raping an exotic dancer, made some remark about a stripper being in a business designed “to inspire lust”. Immediately, a cry arose in the media demanding that the judge be censured. […]
Calling for censure in such a case, in my opinion, was nothing but an attempt to intimidate the judiciary. In so far as it was also made by some lawyers, it may have amounted to contempt of court. In the past, lawyers criticizing judges in this fashion had often been requested to apologize to the judges involved. In the case of feminist objections – as I put it in speech to the Ontario Psychiatric Association in 1986 – it was some of the judges who ended up apologizing to their critics.
The press was even wider off the mark in another case. That was a case in which an Ontario judge was being crucified in the media for rating a rape – again, after convicting the accused – as “a 2 on scale of 1 to 10”. […]
Co-author George Jonas then continues (in italics) with the story of Wayne St. Louis, a former client of Greenspan’s charges with sexual assault in 1981 in Windsor, Ontario (I couldn’t find any online references to this story).
It has been argued that when the police believe that someone may have committed a crime, it is their duty to lay a charge, even if the evidence against the accused is marginal. At the same time efficiency and common sense suggest that police exercise the discretion available to them and not waste the courts’ time and the taxpayers’ money with cases in which a conviction is all but impossible. Expediency and cost-effectiveness are not the only reasons. Some police officers honestly believe that harassing an accused for no reason or exposing him to the chance, however remote, of a perverse conviction is simply unfair.
The exceptions to this rule are high-profile crimes (such as, say, murder) or high-profile suspects (for instance, members of “organized crime” or very wealthy or famous persons). In such cases the police have been known to lay charges on very little evidence. Other exceptions include crimes that attract a lot of social pressure to prosecute no matter what, such as rape has become in recent years. Or any crime in which the suspect is a policeman. […]
As for rape, it has always been regarded as a very serious crime. Historically except for murder, it was the only other crime for which the death penalty remained available in some jurisdictions. However, precisely because it was taken so seriously, the courts were especially careful to have it proved beyond a reasonable doubt against an accused. Judges recognized that, while it exposed the accused to grave penal consequences and much social opprobrium, rape was a charge very easily brought against a person. Unlike other legal systems, English law never subscribed to the maxim of testis unus testis nullus, which prohibits conviction on the evidence of a single witness.
For this reason, much latitude used to be given to the defendants’ lawyers in the cross-examination of complainants. Sometimes – depending on the trial judge, who could always limit such questioning to relevant issues – this gave rise to an atmosphere in which rape trials were harder on the complainant than on the accused. It was said, with some justification, that the courts “put the victim on trial.” At times complaints of sexual assault were heard in courts in a climate of intrinsic disbelief.
It might have been possible to remedy all this intelligently, but – in the opinion of many lawyers – it wasn’t. in recent years it was remedied by simply reversing the unfairness. From intrinsic disbelief (which was unfair, of course), the climate changed to one that seemed to echo the rhetorical question “Why would a woman lie about being raped?”
But this is a silly question. As silly as asking, “Why would a man rape?” Generally, of course, men don’t rape and women don’t lie – about being raped or anything else. Most people tend to observe the biblical injunction against bearing false witness against fellow human beings most of the time. However, some people do lie sometimes, and it is the task of the criminal-justice system to separate, beyond a reasonable doubt, the minority who do from the majority who don’t. this cannot be accomplished by presumptions either way, only by a meticulous, case-by-case examination of the facts. In the words of the English jurist Sir James Stephen, “the power of lying is unlimited, the causes of lying and delusion are numerous …” It is not the court’s business to say why a woman would lie about being raped, only to make sure no innocent person is convicted in the rare instance when she does. […]
This indicated that, in law, it is possible to be convicted of sexual assault on an uncorroborated complaint, first made more than a year after the fact, shown to be inconsistent in vital details, altered in mid-trial to suit facts learned during the defendant’s testimony, and presented by a girl who, in her own words, tends to “dream about” essential parts of her evidence. It is possible to find a man of unblemished reputation guilty beyond a reasonable doubt on this kind of evidence alone. It is not unreasonable.
What, then, is unreasonable? Is it surprising that rape has been traditionally regarded as a charge very easy to bring and very hard to deny? Has it been wrong for the law in the past to surround defendants with certain safeguards? Or has it been a mistake for the law to remove them? […]
If, as a matter of social policy, we go on “sensitizing” girls and women to the “coercive sexuality” of men; if we keep giving seminars and showing propaganda films on the subject in schools; if we keep suggesting to young people that they be alert to “sexual harassment” and “bad touching” and invite them to view any gesture in the light of this possibility; if we positively urge people – as we are beginning to do – to have no tolerance of any “uninvited” sexual expression, not even “ogling” or “lewd remarks”, and to resolve any doubt they may have in this regard by reporting the matter to the authorities – if we do this, we will inevitably end up with accusations like the one levelled against the Windsor swimming-pool owner or Wayne St. Louis.
In addition, if we keep diluting our evidentiary rules; if we threaten our police, Crown attorneys, and judges with censure for applying the same common sense, or the same discretion, in cases of alleged sexual assault as they do in all other criminal investigations and trials, we will inevitably end up with innocent people convicted and ruined.
This is not just a possibility or a likelihood: it is a statistical certainty. In any population group there will be a few spiteful or evil-minded liars. There will be a few wicked or impressionable children, and a few malicious or fanatical adults to manipulate them. Their numbers will undoubtedly be small, but one in a thousand is enough. In the old days of witchcraft trials it was impressionable, wicked, or manipulated children who most often testified about seeing accused witches flying around on broomsticks. If, as an experiment, all schools started showing films requesting children to be on the alert for their parents or neighbours turning into little green men from Mars, it is a statistical certainty that some reports of such sightings would be received by the police. […]
[…] But there is a world of difference between protecting women and children, and inviting malicious, confused, or ideologically motivated to use sex as a weapon against others.
As a criminal lawyer I have seen nothing to persuade me that we cannot achieve the first aim without “taking a chance” on the second. True, any system of justice entails the incidental risk of injustice, but justice is never achieved by wilfully creating a climate in which it becomes easier to prosecute or convict the innocent.
One final point. At times lawyers are accused of having an economic interest in the social measures that they advocate. Frankly, as a criminal defence counsel, my economic interest is in seeing the greatest possible number of middle-class people being hauled into court on criminal charges of all kinds. If, for instance, in child custody battles every second wife were to charge her husband with having molested the children – an increasing number are doing it already – I could soon keep a yacht in the Mediterranean. […]
[…] I suggest that we should take a second look at our feminist-inspired social policies before some people’s vested interest in their perpetuation becomes overwhelming. As it is, an entire industry has sprung up around the educational, legislative, administrative, and enforcement aspects of feminist ideology. Pretty soon pulling back would entail having to add hundreds of bureaucrats, consultants, academics, educational filmmakers, social workers, newspaper columnists, and other experts – along with their secretaries, researchers, and assorted support personnel – to the welfare rolls.
That is without mentioning the new censors, the behaviour modification therapists, the anti-violence-and-pornography crowd that has become a contemporary meeting-ground between feminism and the Moral Majority. My 1986 speech to the Ontario Psychiatric Association centred mainly on them. I said at that time: […]
These censors, who form the great bridge in our days between Right and Left, between arch-conservatives and “progressives”, who forge ahead like the Light Brigade, deserve a chapter in themselves. A chapter like that would involve a discussion of art, literature, psychology and philosophy. Since I don’t want to step outside my own area, criminal law, it will have to be written by someone else.