The following op-ed is among the best we've seen in recent years about the "sentimentalisation of our law" when it comes to rape and sexual assault that "treat[s] a certain class of victim, or alleged victim, differently from all others." This inappropriate sentimentalization likely explains some, or many, "rape reform" efforts of recent years that have unjustly rolled back the rights of the presumptively innocent in cases of alleged sexual offenses, e.g., Fed.R.Evid. 413; the Department of Education's April 2012 "Dear Colleague" letter that mandated the lowest possible standard of proof in cases of alleged sexual abuse on campus.
Did 'target culture' in the police and CPS drive the tragic case of Frances Andrade?
The tragic death by suicide of Frances Andrade, shortly after she had given evidence in the trial of the man who sexually abused her, raises many questions, not least that of the wisdom and judgment of the police and the Crown Prosecution Service in pursuing the case with such determination, when so many others are dropped.
By Theodore Dalrymple, found here:
Mrs Andrade was known to be psychologically vulnerable as a result of her difficult childhood and to have made several attempts at suicide; she was also known to have been reluctant, for these very reasons, to bring the case.
She had made her own accommodation with her past and did not want it brought again to the forefront of her mind.
The way to be a bore, said Voltaire, is to say everything. He might have added it is also one way never to overcome a horrible past.
Forgetfulness, not in the sense of repressed memory but in the sense of deliberately refusing to think about that past, is a perfectly respectable and often effective way of achieving mental equilibrium. The choice should be the individual’s.
A friend in whom Mrs Andrade confided the abuse went to the police, however, and they apparently persuaded her that she should give evidence for the public good.
It was brave of her to agree, and no doubt it was for the public good; but perhaps not wise to have pushed her.
The police and the CPS live in a world of targets. What counts in that world is the achievement of measurable results; and it is not a world propitious to the exercise of judgment or common sense.
As we saw in the Francis report, it is a world in which ordinary people, and even those who set the targets or try to achieve them, are ground into dust. It is a world of programmed inhumanity.
The police and CPS, moreover, have been heavily criticised for the low rate of conviction in cases of rape and sexual abuse, often by the very people who, in other circumstances, deny the efficacy or justice of punishment.
Why, after all, should the punishment of sexual abusers have a deterrent effect, but not that of burglars?
Never mind that other types of cases have almost equally low rates of conviction, political pressure has been building up on the police and CPS to do something more in cases of rape and sexual abuse.
A conviction in this case, which they correctly estimated as being the likely result, would improve their score. Not only would it help to achieve one of their targets, but it would help to forestall criticism of inactivity, or worse, wilful disregard of such cases.
Pressure has also been building up to treat cases of rape or sexual assault differently from other types of crime.
This is because the victim of rape or abuse often finds the investigation and trial especially traumatic.
But it is a fundamental principle of our system that every accused is not only innocent until proven guilty but entitled to the best defence that he or she can mount.
Evidence must be tested in open court, and such testing can never be made comfortable for the victim, whose testimony is often the main evidence against the accused. It cannot just be accepted on the nod.
Unfortunately, not every allegation of rape or sexual assault is true, and the consequences for the person against whom a false allegation is made can be very serious.
I recall, for example, the case of a man who was wrongly accused of rape by a woman; the prosecution not only failed to prove the allegation beyond reasonable doubt, but the defence proved beyond reasonable doubt that it was false.
Yet after his release from prison on remand he was treated by those around him as if he were guilty, on the grounds that there was no smoke without fire.
It is only too understandable that Mrs Andrade should have said in the witness box that the defence counsel, a woman, displayed no understanding of what it is like to be sexually abused and raped; but experience, whatever it might have been, cannot entitle a witness to special consideration as to the veracity of what he or she says.
Of course, cross-examination should be conducted with tact, not only for moral but also for tactical reasons.
Unless the witness is obviously evasive or dishonest, aggressive questioning rarely has the desired effect upon the jury, rather the reverse; and in any case, the judge is there to prevent unfair badgering.
The judge in this case specifically said (and Mrs Andrade implicitly agreed) that the defence counsel had conducted herself properly.
When a barrister says to a witness: “I put it to you that what you say is a fabrication”, this is a question, not an accusation, even if it can feel like one. The opposing barrister, of course, defends his witness.
Mrs Andrade’s psychological fragility was illustrated by the fact that she did not wait for the verdict that was due not long afterwards, which was largely a vindication of what she said.
The tragic outcome is not, therefore, a reason for the further sentimentalisation of our law, by treating a certain class of victim, or alleged victim, differently from all others.
Such would be a very good way of undermining the rule of law, and the blindfold would have to be removed from the statue of Justice.
Hard cases make bad law, though the temptation is always there to do so. Tact and judgment will always be needed, but they will not always be exercised: especially where there is the target culture.
Theodore Dalrymple is a former prison doctor