U.K. gets it right on sexual assault
‘Victims’ will not automatically be believed IN CANADA, MEANTIME, THE PENDULUM CONTINUES TO SWING THE OTHER WAY.
Hooray for Cress i da Dick, t he commissioner of the Metropolitan Police in London, who has formally led her force in abandoning its policy of automatically believing victims of sexual assault.
As The Times of London reported Monday, since taking over the Met about a year ago, Dick has told her officers that of course they are to keep an open mind, treat complainants with respect and dignity and “we should listen to them. We should record what they say.”
But, Dick said, “From that moment on, we are investigators.”
What seems so elementary — that the first job of police isn’t to “support” victims or anyone else, but rather to investigate complaints — got lost in 2014 when the notional acceptance of victims as inherently “being truthful” went to a flat- out recommendation that “The presumption that a victim should always be believed should be institutionalized.”
This “we believe” mindset was in part responsible for the Operation Midland scandal, which saw a number of prominent men ruined ( though never criminally charged) by allegations they were involved in a VIP pedophile ring, all on the say- so of a single alleged victim known as “Nick.”
That was the finding of a report into Operation Midland by retired high court judge Sir Richard Henriques, who found that the presumption of innocence was “set aside” by detectives in their eagerness, and what they felt was their duty, to believe Nick.
Henriques said this protocol of automatically believing victims “perverts our system of justice, strikes at the very core of the criminal justice process, will generate miscarriages of justice on a considerable scale,” and should be scrapped. And scrapped, thanks to Dick, it has been.
Henriques went even further, and rued the use of the word “victim” in U. K. legislation and said, “since the investigative process is similarly engaged in ascertaining facts which will, if proven, establish guilt, the use of the word ‘victim’ at the commencement of an investigation is simply inaccurate and should cease.”
Interestingly, there was another development Monday in U. K. justice, with the director of public prosecutions, Alison Saunders, reported to be stepping down when her five- year contract ends next fall.
The announcement of her resignation came after several recent rape trials collapsed when prosecutors apparently failed to disclose evidence — much of it text messages — to the defence, as they’re obliged to do, just as Canadian prosecutors are. The Crown Prosecution Service is now reviewing all current rape cases.
In Canada, meantime, the pendulum continues to swing the other way.
Despite huge pushback from defence lawyers and legal organizations, Bill C-51 is almost but not quite law — having passed in the House and on its way to second reading in the Senate.
It’s this bill, colloquially known as the new Ghomeshi rules, which expands the definition of sexual activity to include communications made “for a sexual purpose or whose content is of a sexual nature.”
As the Canadian Bar Association said in a letter to the justice committee which, last fall, was studying the bill, the amendments mean that “an accused with records that could impeach complainants or witnesses” can’t use those records unless they first get a judge’s OK.
It was precisely this sort of communication — emails from the complainants to the accused — that was used so effectively in cross- examination by Ghomeshi’s main lawyer, Marie Henein.
What t hese messages showed in the case of all three complainants was that despite their testimony in court that after their alleged attacks they were so traumatized and wary they never saw Ghomeshi again except in public, they had all either tried to ( in one instance) and/or actually done so.
In one instance, the complainant forgot to disclose to police or prosecutors that she’d had dinner, post- alleged attack, with Ghomeshi, taken him home in a cab and given him a hand job and, in the other, the complainant had actively courted him for about a year after the purported assault, once telling him she had wanted to “---your brains out” on the very night of the alleged assault.
In other words, the messages revealed that there were great gaps between what the complainants told the judge ( and before him, police and prosecutors) and their private messages to Ghomeshi.
As Ottawa lawyer Michael Spratt wrote for Canadian Lawyer magazine last year, as C- 51 was introduced, and this was about 15 months after Ghomeshi was acquitted, “People did not like that.
“So now, if the defence has a record that shows the complainant is lying or misrepresenting the evidence, that record must be disclosed in advance.
“A lawyer is then appointed for the complainant, who is granted standing to argue for suppression of the defence evidence.
“In other words, the legislation will tip off a liar that records exist exposing their lie and then gives them a chance to come up with an explanation.”
Worth noting is that at t he t i me Ghomeshi was charged, the Toronto Police sex crimes unit was headed by a woman, Insp. Joanna Beaven- Desjardins, who deeply believed all complainants from the get-go.
As she put it at a press conference announcing that three ( l ater discredited) women had come forward with allegations against Ghomeshi, “We believe victims when they come in, 100 per cent. We are behind them 100 per cent … We believe them right from the onset.”
“We” were on the wrong track.
It was, for the record, a lousy investigation, the complainants only minimally and tepidly questioned, and never challenged, of course, lest they have felt disrespected or, God forbid, disbelieved.