January 29, 2015 5 Comments
Help me out here, because I think I must be missing something.
I ask because of this:
Now, I’m not a lawyer (as should be obvious, really), and I labour under the (possibly false) assumption that those accused of a crime are, before the law, innocent until proven guilty.
This is why, in criminal cases, there is a burden of proof placed upon the prosecution – the defendant must be found guilty beyond reasonable doubt.
Blackstone’s formulation says that "It is better that ten guilty persons escape than that one innocent suffer".
There are a number of things that I don’t understand about the claim that this new initiative represents “a move into the 21st century”:
The naive interpretation of this “move into the 21st century” would be that this is “progress”. I don’t see the voilation of Blackstone’s formulation as progress. Perhaps this “move into the 21st century” is just that. The direction in which this move takes us seems not to be forward to a more just system, but backwards into a less just one. Have I got this wrong?
More widely, and to come back to my titular question, why is rape special?
I’m not trying to trivialise rape – it’s is an incredibly serious offence, with potentially lifelong effects on the victim, depending on the nature of the event and the demeanour, resources and resilience or otherwise of the victim.
But I am questioning whether it’s special in so far as the victims of this crime are entitled to any rights which are not afforded to victims of a burglary, mugging, serious assault or other life changing infringements on the person or their property.
More importantly, in recognition of Blackstone, I question whether those accused of rape are to be stripped of the rights and protections afforded to those accused of burglary, mugging, serious assaults or murder?
Consider the person facially disfigured by a knife attack, rendering them unattractive and more limited in their opportunities to find as good a quality of life partner as previously. Or an assault rendering a person unable to start a family should they wish to. Or someone whose arm, leg, neck or back is broken by criminal act whose career and/or hobbies are curtailed.
Consider the physical, emotional, financial and social costs of these consequences of violent crimes.
Then I ask if this is the thin end of the wedge of justice denied. After all, if the undermining of hundreds of years of principles of criminal jurisprudence yields perceived benefits for the victims of rape, why would those benefits not be extended to the victims of the other crimes I mention above?
What are the chances that this special privilege will only ever be afforded to the victims of rape?
I can only see this whole thing as a terribly retrograde step away from true justice, and I hope it is duly dismissed as utterly incompatible with the principles of a free and fair society.
UPDATE: Words elsewhere