Guilt-edged Justice

8-minute read.

Police have a responsibility to investigate objectively, not just build a case based on the assumption of guilt.

Start by Believing (SBB) is an American awareness campaign to improve the experience of those who report sexual crime and to encourage more victims to pursue their cases through to trial. Established by End Violence Against Women (EVAW) in 2011, it assures complainants that their testimony will be accepted from the outset. It's attracted $US9.5 million in federal funding, and supplements this with fundraising. It even sells attire online, including an incongruously macho "men's muscle tank". The SBB website offers a variety of resources, such as training courses and a name-optional online pledge to believe. As of January 2022 it counted 644 local campaigns, most in the USA but others in countries as varied as Nigeria and Spain.

SBB can seize the moral high ground without even trying. Its intentions are so worthy – and the image evoked by its website is so wholesome – that it's hard to object without appearing to be a reptile that skulks behind playground trees. Yet in July 2011 federal funding was withdrawn. How could this happen?

A clue is in the stated aim of having everyone adopt the SBB approach. If a distressed friend or relative claims to have become a victim of any terrible crime, it would be callous to question his or her account. Professional counsellors should in most cases do the same, because their business is to soothe the pain, real or imagined. Where the approach comes unstuck is extending this acceptance to one particular group: police officers.

Police are different because they have to find things out. They are not – and must not aspire to be – therapists or counsellors. There's a vast difference between a therapeutic interview, perhaps conducted by a counsellor, and an investigative interview of a suspect (at least, any suspect unwise enough to consent to it). A police interview introduces a new stakeholder, beyond the interviewee. What's said in that interview could have a life-altering effect on the person accused, and if the detective is required to assume the complainant is telling the truth, the perception of that trembling suspect will be refracted through a prism of assumed guilt. Like an artillery target, he becomes the "other": remote and dehumanised, more an abstraction than a person.

Some insist he's always a fair target. Social and political commentator Zerlina Maxwell wrote in a column in The Washington Post back on December 6 2014 that we should err in the direction of believing sexual complainants. She proposes

We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist...The accused would have a rough period. He might be suspended from his job; friends might defriend him on Facebook...false accusations are exceedingly rare, and errors can be undone by an investigation that clears the accused, especially if it is done quickly.

Maxwell is wrong ethically, factually and legally. She flicks aside the presumption of innocence as if it's a trifle. She underestimates the frequency of false allegations (for more on the numbers, see Figuring the Figures, on this site), and callously makes light of their effects. She makes no mention of the groundless cases that come to trial, each of which is a tragedy in itself for the defendant, even if he is acquitted. An unknown number end with a judge or jury convicting simply on a ring of truth, often after exculpatory evidence is not disclosed by the prosecution, is "lost" or ruled inadmissible in court. Maxwell seems unaware that "believe the victim", taken to its tragic conclusion, produces case-building rather than objective investigation. There's a new tendency for a sexual suspect to be automatically charged and for that case-building to follow immediately, so no clearance is quick enough to prevent catastrophic damage to mental health, finances and employment. His reputation suffers far more profoundly than is suggested by Maxwell's flip reference to Facebook friends.

The Center for Prosecutor Integrity, an American organisation dedicated to preserving the presumption of innocence, correctly objects that the SBB philosophy contravenes police ethical codes, which prescribe objectivity. SBB nudges investigations towards conviction by making any reported sexual encounter "appear to be non-consensual" and by concealing inconsistencies in a complainant's account.

It's not just defence lawyers who have opposed SBB in the USA. Some prosecutors in sexual cases have complained that when a police district has embraced the philosophy in good faith, the defence has claimed the police were so hamstrung by the SBB dogma that they weren't allowed to consider the suspect might be innocent. In the words of one Iowa detective, SBB required him to believe the complainant "no matter what". Such an imbalance may convince judges and juries to acquit more defendants, rather than fewer.

I'm not aware that a specific SBB-branded campaign has been adopted anywhere in the UK, but local policies have emerged in exactly the same spirit. In November 2021 Avon and Somerset Police tweeted a link to a public relations video clip in which Detective Chief Inspector Lorett Spierenburg introduced Project Bluestone, an ostensibly new approach to sexual crime. The tone seems defensive, as if her police district has been criticised for asking complainants too many questions – perhaps for going beyond mere case-building into actual investigation – and consequently not serving up enough convictions. Using the second person to appeal directly to complainants who may be nervous about reporting, she makes a solemn public promise that detectives will concentrate "from the outset" not on the credibility of the complainant but "on the psychology of the suspect". That seems oddly restrictive. Surely there's a place for both, not to mention the reverse: the psychology of the complainant and the credibility of the suspect.

Spierenburg graciously labels the as-yet innocent man in the crosshairs as suspect, but only on first mention. From then on he's perpetrator or offender and his adversary is of course victim or survivor – labels which show obvious prejudice. She guarantees that her officers will receive ongoing training, but it's clear this training will lean towards believing the complainant with the implied aim of jailing more defendants. Will those officers learn the critical difference between a therapeutic interview and an investigative one? Can the public trust them to adhere to the UK's Criminal Procedure and Investigations Act Code of Practice: "In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect"?

She says, "If you come to us, you will receive that support, respect and belief." Let's consider each of these three nouns. Any complainant naturally deserves to be treated with respect: a police officer needs to hear and record the complaint sensitively, courteously and with an open mind. I defer my opinion on support, because it depends on what form it takes. I know for a fact that a sexual suspect receives no formal support whatsoever. Most fundamentally, he'll have to pay for his defence, while the complainant enjoys the unlimited free services of a dedicated team who act as her advocates (for more detail about this imbalance, see Who's a Victim, on this site). My most trenchant objection, of course, is to belief. DCI Spierenburg concludes not that police will investigate objectively but that they will strive for a criminal conviction. This is SBB in all but name, and makes that fatal shift from the reasonable "Listen to the complainant" to the skewed and potentially catastrophic "Believe the victim".

What happens when a police officer isn't on message, because he or she has reason not to believe a complainant? I'm especially interested in DCI Spierenburg's phrase "from the outset". Does this mean that her officers will treat a complainant as truthful for the whole duration of the case? Or will they do so only at the start, to encourage trust and acceptance, before they change into investigative mode and proceed objectively? If it's the latter option, when does the switch from belief to objectivity occur, and how is this revealed to the complainant, if it is at all?

In January 2021 Cumberland Lodge hosted a discussion about historical crime, entitled Towards Justice: Responding to Past Harms. Two of the participants were Simon Bailey QPM, Chief Constable of the Norfolk Constabulary and Matthew Scott, criminal barrister at Pump Court Chambers and well-known blogger on matters of law (barristerblogger.com). The discussion is long and wide-ranging, so I'll confine my comments to the section relevant to sexual crime, mainly from 28:00 to 43:00, though the topic does continue through to 55:00.

Unsurprisingly, Bailey's philosophy echoes that of Avon and Somerset's DCI Spierenburg. He says police need to treat victims and survivors "...in a way that they feel believed." Scott picks this up at 28:40 to 33:00, calling it dangerous for police to identify their role as working with survivors. He suggests that the role of police should be to investigate without any preconceptions. He says that both the police and jurors can be misled, especially in cases based on historical allegations, and in some cases jurors are asked to provide a verdict "almost on a hunch".

Bailey's response (33:35) sidesteps the issue of wrongful allegations by stressing that not being believed is an obstacle to complainants reporting. "The issue of belief is not a construct of the police service but a construct of – and an element of – the abuse." It's a catchy line which he's surely practised, and he seems to know that it – like all vacuous statements – needs to be delivered with conviction and immaculate pausing. If it means what I think it means (which no reader should assume), it begs the question of whether a suspect is actually guilty.

Worse is to come. At 35:00 Bailey insists that investigators do become objective – in effect, they make the switch – and "go where the evidence takes them." When he is challenged about the assumption of belief, he defends his police policy by saying it means only that victims can expect that "They are going to be treated with respect, with empathy, that their allegations are going to be listened to." No mention of belief now. He says, "The psychology changes" as the detective dons his investigator's suit. Initial belief is therefore crucial and total but temporary, and has now been discarded. Is this kind of high-wire act, balancing credulity and objectivity, really what sexual victims want?

A pronoun is the giveaway. Scott reasonably assumes that when Bailey talks about what "we" do, he means the police. However, at 36:40 Bailey says the "we" is broader: it includes the victims' groups with whom he liaises. He appears proud of this collaboration. Yet it's surely sinister that senior police openly work with pressure groups who peddle the lie that false allegations are rare, who campaign for more sexual convictions and no doubt encourage police to work from the "believe the victim" playbook. For balance, he could consult groups such as FACT UK, who struggle with no funding to support the increasing numbers of innocent people accused, tried and convicted of sexual crimes. He won't, of course. Most likely he's never heard of them, because acknowledging wrongful allegations isn't part of the narrative.

Bailey mentions the number of prosecutions "successfully achieved" as if acquittals play no role in a justice system. He regrets the effects of "a handful of high-profile cases" – presumably the miscarriages of justice involving prominent people that have made the headlines – and implies that they have received too much publicity. Yet they haven't at all. The tragedy is the unknown number of ordinary people whose lives have been destroyed by what Scott rightly calls “terrible injustices”. Their chance of appeal is close to nil and their stories, sadly, are never told.

Despite what Bailey says about a detective's transformation to investigative mode, a residue of that initial total belief always remains. The falsely accused is still seen as having “got away with it”, no matter how outlandish his accuser's story. The liars and fantasists – even those who commit what used to be called perjury in court – always get off scot-free here in New Zealand, and almost always in the UK. An innocent man is supposed to see any outcome short of jail as a victory and to grovel in gratitude at the feet of Lady Justice.

In 2015 I was falsely accused of historical rape, as recounted in my book Dry Ice: The True Story of a False Rape Complaint. After I was provisionally cleared, I met a detective sergeant to complain about the inefficient and biased "investigation". If my detective's approach had been as balanced as the sergeant claimed, when the story told by my accuser (whom he still labelled victim) fell apart, the detective should have at least considered prosecuting her. His astonishing response confirmed the imbalance that persists after the initial assumption that an accuser must be telling the truth. He said that after a complainant’s allegation has been investigated and found to be untrue, the police can hardly just turn the tables on her and start to treat her as a suspect. "Why not?" I asked, in exasperation. I assume that’s exactly how it should work. If detectives start by believing, how else except by such a switch can even a provably false accuser ever be held responsible in law?

After all, something parallel surely can happen in another kind of high-stakes investigative interview – for an insurance claim. If an insurance investigator tracks down several reliable witnesses who testify that they saw the claimant enter his factory with a petrol can in the dead of night, the next interview will no doubt see a switch of direction and of tone. There are plenty of false sexual accusations in which the same kind of investigative switch needs to occur, but almost no detectives are courageous enough to pursue a kind of justice that is important but unfashionable. Prosecuting even provably false and malicious accusers is on no list of key performance indicators.

Vast numbers of sexual crimes aren't prosecuted. My article A Lesser Tragedy, on this site, considered the reasons for this. Some cases do come to trial but produce an acquittal of a defendant who the complainant knows is guilty, and victims may feel the system has locked them out. Sadly for them, the private nature of most sexual crime makes it hard to prosecute. They need to be treated with respect at every stage, and people like Maxwell, Spierenburg and Bailey seek justice for them.

That's understandable. However, not one of these advocates admits that many sexual accusers are not telling the truth. Some are liars or fantasists and others have misread a sexual encounter or have been encouraged by others to do so. Many have had their memories reconstructed by counsellors who offered them a convenient answer to everything wrong in their lives. The police should show courtesy, but they must not be supportive to a fault – and abandoning the presumption of innocence is a fault with terrible repercussions.