Fall of the Coin

4 minute read

Reasonable doubt and the tyranny of time

Most paid it little attention. When the news broke, back in 2017, the nation was preoccupied with discussing what it considered a far greater outrage: that a patriarchal reporter had the audacity to ask the then new Labour Party leader Jacinda Ardern if she saw motherhood anywhere on her horizon. The Ardern story on stuff.co.nz collected over forty reader comments.

No doubt quite a few read the other article, but not a single reader was interested enough to post a comment, so writing that the news “broke” really is an overstatement. Most likely, readers clicked on the headline after catching the word rape and saw that a veteran Napier teacher was convicted of the historical rape of an underaged girl. The jury comprised six women and six men, who took less than an hour to return the verdict. It seemed simple enough. That's the system we have, and it usually works. Another pervert caught. Throw away the key.

Yet this trial tells us something disturbing about what has happened to long-established principles of justice in New Zealand. The case centred on alleged events from 43 years earlier and had no evidence, but the jury convicted. In one sense the matter was as straightforward as a coin-toss: the accuser was adamant that the rape happened, and the defendant insisted that it did not. Prosecutor Steve Manning told jurors that there could be no middle ground. He said, “There's black or white” and the jury had to decide who was lying. He said the fact that the charges were historical made them “no less important to the woman who alleges today that they happened.”

If they happened. I long ago gave up assuming that I knew enough about any trial just by reading the news. A jury almost always knows much more about a case than any casual observer can. Yet in a very important sense the reader knows as much as the jury in a case such as this Napier one. It is only a sexual accusation that can come to court with no evidence except the complainant's testimony. There were of course no witnesses, and this complainant could provide no details such as dates and times.

That means that the verdict hinged purely on whether the jurors believed the woman's account. This erases any advantage of being in court and listening to hours of testimony. The rationale for the verdict condenses to a general question which a detached reader is as entitled to answer as any juror: is a convincing account in itself enough to convict – not just in this case but in any historical case? These jurors clearly thought so. Yet they are wrong. Even if this man happens to be guilty, they are wrong.

It's pointless to ask what the odds of his guilt are, because no one can say. If he is guilty, it would have been convenient for him to deny everything and count on the absence of evidence to clear him, or prevent the case from coming to court in the first place. Such uncertainty, especially after forty-three years, can work in favour of actual rapists.

However, some accusations are false, for a variety of reasons. The complainant may be mentally unstable, or she may be seeking revenge or some advantage. Those in the first category are very susceptible to suggestions by counsellors who are convinced that sexual abuse is the source of all their client's woes. The counsellor's certainty soon becomes the client's. The lawyer I engaged in my own false allegation case said that such “true believers” are more convincing in court than those just chasing compensation.

All complaints should of course be investigated with an open mind, but in fairness to the accused it is reasonable to question aspects of the complainant's story which appear dubious. The alternative is simply to believe, which in effect means the accusation becomes the evidence.

Yet any factors which may once have been used to provide reasonable defence have been repudiated in sexual cases. We may once have cast doubt on a sexual complaint which an accuser takes decades to make, but anyone who suggests that now is said to believe in “rape myths”. I wrote in much more detail about these in my article Rape Myth Myths.

The strongest opprobrium is reserved for anyone who dares to deny that false sexual complaints are rare. They are far more common than the two percent figure put about by anti-rape campaigners. No one can pretend to know the true number, but a local lawyer with vast experience in such cases told me that most men in jail for historical sexual offences are “probably innocent”.

The prosecutor in the Napier case conceded there was no evidence but told the jurors that, in the absence of that evidence, they would have to decide which account had “a ring of truth about it.” We all – men and women – need to ask ourselves whether we consider justice is served when we convict someone just because a testimony appears too convincing to be mere fantasy.

There was a time when a judge would warn a jury at the outset of a trial not to convict on uncorroborated evidence. Following changes to the Evidence Act introduced specifically to make it easier to obtain convictions from sexual accusations, this no longer applies, and everything depends on whether the complainant can win over a jury.

Our justice system is based on the principle of reasonable doubt. It may be a blunt instrument, but in the face of uncertainty it's the best we can manage. Convicting on a ring of truth cannot be reconciled with this principle.

There doesn't need to be a gender war on this issue. False sexual accusations, like sexual crimes themselves, can cast a wide net of misery; not only the direct victims but also their families can suffer terribly. This is why a verdict like this one, based on emotion rather than evidence, should concern us more than an interviewer's fixation on Jacinda Ardern's future offspring.

Footnote to this case:

The key certainly wasn't thrown away. Even considering the lower penalties for rape when the teacher allegedly committed this crime, he got off lightly: two years and three months' jail and continued name suppression. Does this mean the judge suspected he may have been innocent, despite the conviction? The prosecution seemed to think so, because they appealed the light sentence. As I read nothing more about the case after learning this, I have no way of knowing if he's still in jail.

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