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Assault vs Sexual Assault - a civilised debate

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1372894.  Tue Jan 26, 2021 3:34 pm Reply with quote

crissdee wrote:
Brock wrote:
So who decides? The police or the CPS?

I made a statement to the police, as required; but I had no dealings with the CPS whatsoever.

My understanding is that you never would, whatever the facts of the matter. The CPS are there only to decide whether there is a basis for a trial, your opinion counts for nothing.

Apparently not. The criteria are:

Does the evidence provide a realistic prospect of conviction? That means, having heard the evidence, is a court more likely than not to find the defendant guilty?

In my case it clearly wasn't.

Is it in the public interest to prosecute? That means asking questions including how serious the offence is, the harm caused to the victim, the impact on communities and whether prosecution is a proportionate response.

In my case it clearly wasn't.

The prosecution was a complete waste of public money. There was not enough evidence for a prosecution, and the CPS only went ahead with the case by distorting the law to make it appear as though such evidence existed.

The CPS should be prosecuted.

1372899.  Tue Jan 26, 2021 6:20 pm Reply with quote

AIUI, the CPS cannot be prosecuted since it is in effect R.

On the other hand, there is a procedure under which one can bring civil action against it for malfeasance in public office. That is possibly the road down which you could have gone.

1372902.  Tue Jan 26, 2021 7:12 pm Reply with quote

* Does the evidence provide a realistic prospect of conviction? That means, having heard the evidence, is a court more likely than not to find the defendant guilty? And;
(my bold)

I hadn't really thought about this before - I just accepted it as the norm. But it doesn't make sense at all. That effectively pre-empts the entire jury system and leaves the case in the hands of (not even elected) civil servants without even the benefit of arguments.

1372938.  Wed Jan 27, 2021 8:47 am Reply with quote

It is a basic principle of English law that one is innocent until proven guilty. French law starts from rather close to the other end, but we're not in France and the English principle will continue to apply throughout the English-speaking world.

If we accept this prinicple, then that which you boldify does make sense. A person is innocent unless and until it can be shown beyond all reasonable doubt that she is guilty. If it is the opinion of the CPS that a court probably won't find her guilty, then there's nothing to be gained in pursuing the matter any further.

While we can all point to instances where this hasn't been the case, it is also a basic principle that the verdicts returned by the courts are the correct ones. That is to say, if I am found guilty that means I did it, and if not I didn't. And indeed, if I am found not guilty then you commit an offence if you say "Yea, but I still think you did it".

Accordingly, if the CPS believes that I will be found not guilty, it follows that it believes that I probably didn't commit the crime. And if it believes that I probably didn't commit the crime, then it shouldn't be charging me that I did.

It is Brock's contention that in his matter, the CPS came to the wrong decision when considering the question of whether a court would find him guilty. These forums are not the place to go into the specific matter in detail, but if it's any more than one person making a bad decision - and hey, we all do that - then clearly there is an issue.

1372943.  Wed Jan 27, 2021 9:42 am Reply with quote

suze wrote:
AIUI, the CPS cannot be prosecuted since it is in effect R.

Well yes, I sort of assumed that!

On the other hand, there is a procedure under which one can bring civil action against it for malfeasance in public office. That is possibly the road down which you could have gone.

To be honest, it was such a relief being acquitted at the end of the whole process that I didn't want to go anywhere near a courtroom after that for a very long time. It would also presumably have been very expensive, because as I understand it there's no legal aid for civil actions. (One of the few good things about the whole sorry business was that it didn't cost me a penny.)

To give one example, part of the prosecution's case involved "evidence of bad character". According to the explanatory notes of the Criminal Justice Act 2003, this is meant to "include evidence such as previous convictions, as well as evidence on charges being tried concurrently, and evidence relating to offences for which a person has been charged, where the charge is not prosecuted, or for which the person was subsequently acquitted".

I had no previous convictions; I was not being tried for another charge concurrently; and there were no other offences I had ever been charged for. Until that incident I had no criminal or police record whatsoever, as far as I know.

But they went ahead with it on spurious grounds; and when my defence lawyer pointed out that their justification didn't stand up, they just changed it to another one. I didn't think they could do that sort of thing.

I've largely put the whole thing behind me now (this is actually the first time I've mentioned it in public), but I have to say that it has severely shaken my faith in the integrity of the English justice system.

1372955.  Wed Jan 27, 2021 12:25 pm Reply with quote

Brock wrote:
To be honest, it was such a relief being acquitted at the end of the whole process that I didn't want to go anywhere near a courtroom after that for a very long time.

That I can certainly understand.

Brock wrote:
It would also presumably have been very expensive, because as I understand it there's no legal aid for civil actions.

That's not actually quite right. There isn't an automatic entitlement to legal aid in civil matters in the same way as in criminal matters, but it is available in some circumstances.

But even were it not available in the specific case, there is a species of lawyer who particularly enjoys bringing cases against "The Establishment", and such a lawyer might have been willing to take on your case on a no win, no fee basis. Now for sure, using such a lawyer probably isn't going to bring you much money when you win the case - but if it's more about the principle than about money then you don't really care.

Still, it's gone now, and I hope that you never find yourself in the situation again.

1372967.  Wed Jan 27, 2021 2:28 pm Reply with quote

suze wrote:

Still, it's gone now, and I hope that you never find yourself in the situation again.

Thanks. Sorry for sidetracking the thread slightly. (For the avoidance of doubt, the crime of which I was wrongly accused was not one that has been discussed in this thread.)

1372973.  Wed Jan 27, 2021 3:47 pm Reply with quote

Just a brief fly-by visit since I'm not really following the details of your debate:
1. The paper version of today's Times carry an article on page 2: The Court of Appeal will be looking at the CPS treatment of rape cases.
I haven't checked if it's accessible online and/or is behind a paywall. If anyone want to read and can't access it online I can try and work some magic with a phone camera.

2. Side-tracking in a different direction: Curiously, there is one specific version of civil cases where you will be assumed guilty if you don't respond to a claim someone has made against you. Money claims can be filed online, a letter will then be sent out, and if no reply has been made within a set limit of 14 days after the letter's date, the claimant can apply for a County Court Judgment to be made in his favour. It appears to be purely administrative; there is no hearing.
To make it even more interesting, sending the address to the "last known address" is good enough, so it is entirely possibly to acquire a CCJ against you without ever having seen any letter at all.

1372978.  Wed Jan 27, 2021 5:53 pm Reply with quote

Remember that no one is actually guilty in a civil case; if you lose a case on a civil matter you are liable. (Usually but not always to pay the other party some money.)

But in fact, isn't that process precisely how it should be? If I owe you a million pounds and I just ignore first your letters asking for the money, then your lawyer's letters asking for the money, and then a court summons - well you'd rather hope that at that point the court would order me to pay you your million. If it didn't work like that, then surely everyone would just ignore all their bills.

Certain large organisations are notorious for ignoring money claims in the hope that the claimant will give up and go away, but that's no way to run a large organisation. As those large organisations sometimes find out when The Sheriffs turn up.

1372988.  Thu Jan 28, 2021 4:07 am Reply with quote

True. But there is no fact-checking if the person the claim is against does not respond within 14 days. That is what I find questionable.
The claim amount could be factually wrong, or made against the wrong person,or even maliciously made up.

There could be many reasons for not responding; the person might not actually have received the letter (old address, being away for (say) work purposes); or they may not have the capacity to understand what is going on. Or a mental health crisis.
Or indeed that the letter is ignored on purpose.

Alexander Howard
1372989.  Thu Jan 28, 2021 5:56 am Reply with quote

These are all genuine risks and the system tries to strike a balance. The claimant might lie about trying all avenues or about receiving no reply within 14 days, but not if he has a solicitor acting.

There is still a procedure for a defendant to say at any stage 'It was all a mistake - I was abroad or in hospital, or I moved, or I am a different John Smith'. They would have to be pretty convincing.

People do still ignore court proceedings because they hope they will go away or they are just arrogant. The bailiff will arrive on their doorstep. If a company does it, the claimant can start liquidation proceedings, and that can't be ignored.

Criminal law is very different, and they want the accused actually physically present in the court.

There are still limited exceptions to the 'innocent until proven guilty' rule. The court will assume the accused is sane, and so if he claims insanity he must prove it.

1373003.  Thu Jan 28, 2021 7:04 am Reply with quote

On a similar note to the CCJ thing. One aspect of the various issues that led to me losing my driving licence a few years ago, was my claim that I had not seen the letter informing me of my driving ban, (it had been sent to my flat after I had vacated it), and the letter informing me of the court case had arrived while I was in the middle of being evicted, so it rather got subsumed by all the other stuff I had to worry about. The magistrate said, in so many words;

"The letter was sent to you, so you must have received it. If you received it, there is no reason you would not have opened it and read it. Therefore, you knowingly ignored the summons and the subsequent sentence."

He would entertain no argument to the contrary.

1373018.  Thu Jan 28, 2021 11:39 am Reply with quote

To drag this back to the topic - 0f course the CPS in the UK and the relevant authorities in the various US states would do better if the police would actually do their work and test rape kits in a timely fashion.

1373238.  Sun Jan 31, 2021 7:23 am Reply with quote

dr.bob wrote:

As Jenny points out, the idea that a physical assault would be the result of a consensual encounter is so highly unlikely that most people wouldn't even give it a second thought.

I wonder. Many moons ago I was sexually assaulted by a male gynecologist whose services were required for the placing of an IUD. Of course I was in that chair on a voluntary basis. It took a short while before I realised what was happening (placing that IUD was rather painful, so I wasn't as alert as I would otherwise have been). I did tell him to stop what he was doing, which he did; he just shrugged and told me to put my clothes back on. When I told my friend, who was a nurse in the same hospital, she laughed and said that the man was known for taking these liberties.
So - indeed I wonder how rare/unlikely such assaults really are, certainly in situations as aforementioned.
It was in the early 70s, and I was young, so didn't really feel like filing an official complaint; besides, if other young women thought it was 'just him', and were not particularly bothered... You don't want to be a wuss, really.
Would I raise a stink if it happened now? Hell yes! But there will be shy young girls/women who still are unduly in awe of blokes in white coats...

1373458.  Tue Feb 02, 2021 6:08 pm Reply with quote

Jenny wrote:
barbados wrote:
Cel tried to steer it away from the subject of rape against assault, but it kept ending up back there and however hard he tried.

Barb - of course it ends up there, for exactly the reasons dr.bob lays out in his post, which in my opinion Celebaelin has essentially glossed over in all his posts.

I was trying to construct an argument and frame it in particular terms 'steer' sounds slightly pejorative and carries with it the implication that doing so was underhand when it was explicitly, intentionally and openly announced from the outset. Any 'glossing over' that went on was on your part and resulted from your failure to engage with that point I have been making at some length now supported by the citation of legal frameworks and backed by government and academic studies rather than resorting to opinion pieces cobbled together from inconsistently sourced statistics. In this debate you do not have the luxury of dismissing my appraisals as a 'failure' of comprehension because my arguments are a summation of the current status quo of UK Law (AIUI) and you cannot side step the significance of that. If you wish to change the law you are obliged to address it directly and construct a contrary and superior argument if you are able; thus far it would appear that you are not. As it stands the position I have outlined constitutes the framework used for the conduct of individuals as dictated by society and any acquiescence to a modification that is not delineated with impartial logic, clarity and consistency will only serve to undermine the authority of legal processes in general.

I am saying Rape is treated as a very serious version of a crime against the person; it is perceived as separate from both non sexual and sexual assault but the inherent similarities in the crimes (particularly in violent non sexual assaults compared with sexual assaults which do not inflict any actual physical harm) mean that there is a crossover point at which the violence outweighs the sexual element in terms of seriousness. For example breaking someone's jaw is a rather more serious crime than some form of inappropriate touching (a case of which, incidentally, I was subjected to by an employee of a supermarket chain a mere couple of days ago - I trust that I made my objections sufficiently clear one to one such that it will not happen again). Both are crimes but the one which involves violent behaviour is rather more blatant, serious and carries a more severe punishment. Insisting that Rape is a separate crime in a category all of its own seeks to by-pass any comparison with other forms of crime against the person and de-contextualise the offence from any scale of seriousness of crimes of this general nature and I don't believe that is appropriate.

In calling on the law to uphold the rights of an individual to personal safety the complainant asks the court to assess if and/or to what extent the victim’s rights have been violated. Dissatisfaction with the nature and outcome of this process is the area of our discussion but as has been noted by several people now it is important to place this in the context of the general principle of presumption of innocence.

The term ‘victim blaming’ seems to be being used rather loosely. I initially understood it as a general objection to pleas of mitigation in the event of a 'guilty' verdict but there is at least a hint that it is also employed when a 'not guilty' verdict is returned thus ignoring the workings of the court in favour of a rather more individual and egocentric interpretation of the evidence presented.

The belief of any individual involved in a trial in his/her own unquestionable moral superiority and absence of wrongdoing is not a legal consideration. Not feeling that you have done anything wrong is not the same as not having committed a crime; by the same token feeling yourself violated in some manner is not the same as being the victim of a crime; ultimately the opinion that matters is that of a jury and it is their determination which dictates the validity or otherwise of any accusation.


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