The Scottish Government is considering scrapping jury
trials for rape cases in Scotland. The reason is that while crimes in general have
a 90% conviction rate rape and attempted rape have a conviction rate of less
than 50%.
I have no problem with many criminal cases being
decided by a justice of the peace or a sheriff. There are advantages and
disadvantages to trying a case by jury. It makes sense for low level crimes to
be tried without one not least because it is much cheaper. There may also be
advantages in having someone who understands the law trying certain cases
rather than 12 people who don’t understand it.
But what the Scottish Government is saying is that in 40%
or more of rape cases juries were wrong to acquit and it would be better to have
a judge do the job because those 40% would be more likely to be convicted. But
why is there a difference in how juries decide and how judges would decide.
The Scottish Government thinks that juries may believe
rape myths. But what are these myths? Well according to Rape Crisis one myth is
that women lie about rape. Well, that sorts the problem of low conviction rates
immediately. If women don’t lie about rape, then simply stating that a man
raped you ought to be enough for a judge to convict without any further evidence.
100% conviction rate achieved. Result.
But of course, it isn’t true that women don’t lie
about rape. Women are human beings who are as capable of lying as men. How can
we possibly know that women rarely lie about rape unless we know the truth. But
the only way we have of determining the truth is by means of trials. The
assumption that 40% of men were unjustly acquitted assumes that these men were
lying, while their alleged victims were telling the truth. But what is the
evidence for this assumption? There is none because we do not have an independent
way of determining who is lying and who is telling the truth other than the
trial.
Another myth is that Women often play ‘hard to get'
and say 'no' when they really mean 'yes'. It is certainly the case that men must
be certain that a woman has consented to sex, but it is simply false to say
that women don’t sometimes play hard to get, and it is also obviously the case
that someone can say no to something but be persuaded to say yes. How many times in your life have you said no
to something but been persuaded? This happens every day in the life of couples
and in our reaction to children. No, you can’t have the sweeties. Oh, all right
if you only shut up about it. Human beings are complex. Speech is subtle. If No
really meant No then Mr Darcey would never have married Miss Bennett.
The reason juries are reluctant to convict in certain
rape cases is that the alleged crime most frequently happens in private and
there is no other evidence other than the woman’s claim to being raped and the
man’s denial. There is no other serious crime where conviction can be achieved
on the basis of a solitary witness with no other objective evidence at all. If I
claim that John Doe killed Jane Doe but cannot point to a dead body nor even to
a missing person, nor a murder weapon, nor blood stains, nor anything else then
I am not going to be able to convict Mr Doe. Likewise, if I claim that John Doe
burgled my house, but cannot point to anything missing, nor any signs of broken
doors or windows, then so too I won’t be able to get a conviction.
Only in rape cases do we have a claim that someone was
raped perhaps decades ago and try it solely on the basis of one person’s word
against another. Imagine if you could be convicted of murder in that way and
with only a judge between you and a life sentence. Which of us would feel safe?
If Andrew Windsor was to be tried in Britain for the
rape of Virginia Giuffre, there is every likelihood that he would be convicted.
After all his trial by television led to his being convicted by most of the
public. His banishment from public life and his payment of millions of pounds
in damages has confirmed us in our judgement.
But last week Giuffre dropped similar allegations
against Alan Dershowitz. She now recognises that she made a mistake. But if you
can be mistaken about one man raping you twenty years ago you can equally well
be mistaken about another. If you are an unreliable witness about Dershowitz,
then who is to say you are reliable about Windsor? More generally how can we determine
what did or did not happen in a private room twenty years ago. We cannot possibly
prove what happened beyond a reasonable doubt.
I wonder if the Scottish Government is still resentful
about the Alex Salmond case. If a jury can acquit when 9 or 10 professional
women accuse someone of a variety of sexual assaults, then a jury can acquit in
every rape case. If that many witnesses are not enough, what number would be
enough? Mr Salmond must consider himself fortunate that he had a jury, because
a judge alone would surely have convicted him.
But although the jury heard witnesses describe a pattern
of alleged behaviour, might it be that they were able to assess the reliability
of these witnesses in a way that a judge would or could not have done? It may
be that they saw or sensed that the Scottish Government itself wanted to convict
Mr Salmond and had used the powers of the state to get him.
This is the purpose of the jury. It can acquit even
when the law tells it to convict because it can sense a higher justice than the
law. The jury might fail to convict the boy for stealing a loaf of bread in the
19th century even though the evidence is overwhelming, because it sees the
injustice of the law. There are any number of cases in history where a jury has
gone against the law because it perceived a higher sense of justice that needed
to be protected. It is this that protects are liberty.
The jury was the only aspect of the case that could not
be controlled by Nicola Sturgeon. It defied her. And instead of Salmond being
safely behind bars where he could not speak, he came for her and almost brought
her down. If the whole system had not been rigged, if indeed she were living in
any other European country Sturgeon would have certainly had to resign in
disgrace. But here no one could touch her.
This I think is what it is really about. Sturgeon
controls her parliament. She controls the Scottish establishment. She controls
the media and the quangos, the police and the law. But she doesn’t control the juries.
Now she doesn’t need to.
