Sex conviction rate drops to 45%
August 30th, 2007 at 7:20 am by David FarrarThe rate of conviction for sexual offences has dropped from 56% to 45% last year. This is obviously a concern.
In an ideal world the conviction rate would be 100%. By this I mean that every person charged is guilty and is found to be guilty.
Now the drop in the conviction rate can be due to two things:
1) A growing number of people who did commit a sexual offence are being charged and wrongly found to be not guilty
2) A growing number of people who did not commit a sexual offence are being charged and rightfully found to be not guilty
Both situations are not satisfactory. It is extremely repugnant if any rapist gets off.
But it is also repugnant if innocent people are being charged, because the Police now prosecute regardless of the strength of the complaint.
Sadly, I doubt one will ever know whether situation (1) or (2) is more common.
August 30th, 2007 at 7:38 am
DPF : You’re missing situation number three – more historical sex crime is being reported (the high profile of several recent cases may have prompted this) and, as you’d expect given the difficulties surrounding such cases, less of these cases are won. I’m sure there are a half a dozen other possible reasons neither of us have thought of but as we haven’t seen a full breakdown of the stats I couldn’t say. And neither can you.
[DPF: Situation Three is covered by Situations One and Two. Situation Three is not a situation but a reason for why (1) or (2) may be happening]
Vote:August 30th, 2007 at 7:49 am
David, There may be a clue in this speculation about the growing number of “dishonesty/miscellaneous” crimes.
Vote:http://lindsaymitchell.blogspot.com/2007/08/what-should-be-done-with-false-rape.html
August 30th, 2007 at 7:53 am
I have suggested there should be a new charge of sexual assault where the onus to show there was consent lies on the defence. Such an offence would carry a penalty of 5 years imprisonment to reflect the greater ease of a conviction and is specifically designed to deal with “date rape” cases where the consent defence puts an unfair burdon on the complainant.
Vote:August 30th, 2007 at 7:53 am
What is the rate at which cases are coming before the courts?
Surely this is a salient question – if the prosecution service is willing to bring more cases to court with less robust evidence then the rate of convictions will drop while the actual number of convictions may have risen.
Vote:August 30th, 2007 at 9:05 am
Fair enough DPF, perhaps I should have pointed out the sophism of your either/or framing of the situation and then gone on to suggest that the phrase “both situations are not satisfactory” (is “not satisfactory” different from “unsatisfactory”)? Is essentially a rather rough attempt to frame the situation as scandal while attempting to draw attention away from an analysis of root causes. (Haha he said “root”!)
Vote:August 30th, 2007 at 9:08 am
“the onus to show consent lies with the defence.” Hmm. Are you really certain that you could prove consent every time you have had a sexual interaction? Are you planning to provide an automatic defence for those in long-term relationships? I very much doubt that I could prove consent for _every time_ I have had sex with my partner over the last 15 years.
Vote:August 30th, 2007 at 9:13 am
I would be more concerned if the change was because of point 1 than point 2.
If the reason for the percentage falling was because of the second point, then it may even be a signal of a good change. As if this is the case, then it may signal a structural change in terms of the willingness of women to complain about inappropriate sexual behaviour. More woman may be complaining, but the additional women that are now complaining may have less of a case to argue.
If this is the case its a good thing, it is good more women are coming forward to defend there liberties, even if the cases being brought forward are marginal.
Vote:August 30th, 2007 at 9:26 am
David.
In my opinion it is part of the growing willingness of people to speak out about both violent and sexual offending in the home, as well as a greater willingness on the part of the Police to procesute for something that was a private, not a public matter up until very recently. Both of which are steps in the right direction.
To focus on the conviction rate as a sign of ‘success’ is simplistic. With the increased number it is inevitable that % conviction rate will historically decline. Say (for example) you took a random sample of 1000 actual instances of sexual offending in 1990, you may find that (maybe 100?) resulted in complaints (that figure is only speculation, it cannot be known in fact), of that we get maybe 80 prosecutions, and at the 65% success rate about 50 resulting convictions. The result is 50 out of 1000 offences being ‘caught’. If, for example, you took the same random 1000 instances in 2006, you might now see 200 complaints, 190 prosecutions, and at 45% about 90 convictions. The latter is a better ‘result’ for the same amount of offending, is it not?
Also, exposure to the criminal justice system is no holiday, conviction or no conviction. I would rather see sex offenders complained about and prosecuted than nothing at all, and in our past there were thousands who were left totally untouched their whole lives.
Also on option 1: “1) A growing number of people who did commit a sexual offence are being charged and wrongly found to be not guilty.”
What about those that did commit an offence but there was insufficient evidence to gain a safe conviction? Are you saying that they are being ‘wrongly’ found to be not guilty? It is a dangerous precedent to say that people who are acquitted in the absence of evidence are acquitted wrongly. The criminal law cannot and never will solve all our social problems, nor can it or will it ever provide an answer to all problems. ‘Criminal justice’ is not a result, it is a process, and one that people have strangely high expectations of.
Vote:August 30th, 2007 at 9:31 am
The most important factor has been omitted in this discussion of sexual offending.
What percentage of sexual allegations lodged with Police have been prosecuted? Police have a discretion to bring charges.
The Dame Margaret Blazey inquiry was confined only to sexual offending by police. It was very damning of Police and the Police Complaints Authority. This leaves a big question mark as to how Police measure up in the carrying out of their statutory duties in other spheres of their activity.
Recently we had a Police Officer charged and convicted with preventing and defeating the course of justice.
The Big Question here is how many such allegations have been lodged with Police and not been prosecuted?
I can say without fear of contradiction that The Electoral Finance Bill would never have been before the Select Committee, if the Police had carried out even a reasonable investigation into the allegations laid with them. They misleadingly called it a “comprehensive investigation”.
In my book the whole exercise was a blatant example of Police preventing and perverting the course of justice.
These allegations were laid with Police and have been buried.
Vote:August 30th, 2007 at 9:46 am
Sexual offences are notoriously difficult to prove. The price we pay for being a civil society is that sometimes guilty people have to walk free. Even with the checks and balances in place I would suggest that there are still innocent people behind bars.
Tim, I cannot disagree with you strongly enough. You are talking about serious criminal liability. To erode the burden of proof on something so serious is unthinkable. Think of how easy an allegation of sexual assault is to make – and how hard it is to prove that it was consensual. Innocent people will end up in prison as a result of your proposal.
What if it is you?
Vote:August 30th, 2007 at 9:48 am
Most of the acquittals are with cases where consent is the live issue. That is the complainant and the accused know each other and have had a sexual relationship. If those cases where the complainant says consent did not happen the burdon should then shift with the defence to show on the balance of probabilities it did happen.
Vote:August 30th, 2007 at 10:14 am
The other issue, not restricted to sex cases, is the cop-out by juries. It’s increasingly difficult to get a murder conviction these days – we have seen many incidences of retrials due to juries being unable to agree, or “compromise verdicts” such as a guilty-of-manslaughter verdict as opposed to murder. One of the worst was the young girl in Whangarei who drove into a crowd of teenagers at a party, killing one and injuring many. Her lawyer successfully raised the defence of intent, and once the jury accepted that in regard to the death, they were unable to find her guilty of any of the injury charges – where was the justice for the victims?
Vote:August 30th, 2007 at 10:17 am
>In an ideal world the conviction rate would be 100%.
I would’ve thought that went without saying. What about murder, other violent crime, burglary, white-collar crime, etc? There is not a 100% conviction rate for any of these either. So the focus on conviction rates for sex crimes seems somewhat selective.
On a population basis, we prosecute and convict alleged rapists at a far higher rate than is in the case in the UK. That is, the UK convicts about three times the number of rapists that we do. But its population is about 15 times ours. So our per capita rate of rape convictions is five times that of the UK.
Given that we have an adverserial system, I doubt that we can expect the rate of rape convictions to improve much, unless we lower the proof required to obtain a conviction, and then we’re likely to see more innocent people convicted. Retired High Court judge Sir Thomas Thorp made the same point earlier this year.
Vote:August 30th, 2007 at 10:19 am
If those cases where the complainant says consent did not happen the burdon should then shift with the defence to show on the balance of probabilities it did happen.
I prefer the system where if one person says there was no consent, and that other person says there was, then the second person is required to show what grounds there were for believing that consent was given. So that way, it’s not just a matter of he said / she said, but you have to show why it was reasonable to believe that consent was given. So it becomes more a matter of fact that can be tested (with difficulty, I know).
Vote:August 30th, 2007 at 10:32 am
Ross. While I agree with your assessment of the situation I’d be interested to know if the differences in our conviction rate and the UK’s were to do with the prosecution rate or the offense/report rate. While I would expect our sex-crime rate (as a percentage of population) to be roughly equivalent to the UK it could be that we have a stronger culture of sex-crime than they do (or of reporting sex-crime). Regardless, it’s good to see a thread on this blog that acknowledges the complexity of reality for a change.
Vote:August 30th, 2007 at 10:43 am
Deborah I am suggesting the burdon to prove consent should fall on the “rapist”. Right now all the accused has to do is show a little bit of doubt that there was no consent and a jury has to acquit. In a he said/she said situation there must be a doubt. But if he has to show there was consent on the balance of probabilities then it will be much easier for juries to convict. That is: the accused will have to show that it is more likely than not there was consent.
Vote:August 30th, 2007 at 10:49 am
Tim, if it is okay to jail a man for five years on the balance of probabilities how would it be to jail the woman for five years for making a false complaint on the balance of probabilities if they decided that the man is not guilty of date rape however that is defined?
This is no more reasonable than your suggestion. You have promoted this on a number of occasions. The fact that you have had little if any support should suggest that your suggestion is not a good idea.
Vote:August 30th, 2007 at 11:21 am
“the burdon to prove consent should fall on the [accused]”
Tim, you are asking that people be presumed guilty until proven innocent.
Vote:August 30th, 2007 at 12:13 pm
“I prefer the system where if one person says there was no consent, and that other person says there was, then the second person is required to show what grounds there were for believing that consent was given.”
Deborah,
You might like to explain why that is preferable to the current system. You seem to be forgetting that the accused is presumed innocent.
An accuser may simply say that he asked the accuser and she consented to sex. I mean, you cannot expect the accused to produce a written contract. Presumably, verbal consent would not be good enough for you because it would still result in disagreements as to whether such consent really was given. So I’m not sure what “evidence” of consent you are referring to.
Vote:August 30th, 2007 at 12:14 pm
> An accuser may simply say that he asked the accuser and she consented to sex.
That should of course read: An accused may simply say that he asked the accuser and she consented to sex.
Vote:August 30th, 2007 at 12:23 pm
“While I agree with your assessment of the situation I’d be interested to know if the differences in our conviction rate and the UK’s were to do with the prosecution rate or the offense/report rate”.
Robinson,
I was looking specifically at the number of convictions for rape both here and the UK (not reported rapes). In the UK, only about 5% or 6% of reported rapes result in convictions. Back in the 70s, the figure was apparently about 32% – so clearly something has happened in the UK too.
My point was that in NZ, convictions for rape are far greater than in the UK. You could be right that we have a greater sex-crime culture – I dont know. I do know that we also prosecute far greater numbers of alleged rapists than does the UK. Whether that means that more rapes are committed here than in the UK (or that more are reported), there is no way of knowing.
Vote:August 30th, 2007 at 1:20 pm
Deborah, you might like to explain why that is preferable to the current system. You seem to be forgetting that the accused is presumed innocent.
It was more the thought that if the accused relies on, “But I thought (s)he consented” as a defence, then the accused has to be able to show that (s)he had reasonable grounds for that. Like, for example, “I knocked at the door and (s)he invited me in.” So I don’t want to shift the presumption of innocence, but I want the “But (s)he consented” defence to be more robust.
Vote:August 30th, 2007 at 1:43 pm
In drugs cases (for more than minimal quantities) the law presumes the possession is for the purpose of supply unless the accused on the balance of probabilities can convince a jury otherwise and in those cases the maximums are 7 years for class c and 14 for class B and life for class A. Setting the jail threashold at a modest 5 years will mean juries will not be too troubled to convict. 20 years for a date rape situation is too scary for juries but not the stranger nasty “Parnell Panther” type serial rapist. Juries have no trouble with them if the ID is clear.
Vote:August 30th, 2007 at 1:56 pm
Hi Deborah, that is almost exactly what happens at present.
At present the prosecution has to prove three things for a conviction:
1. A sexual connection, AND
2. No consent in fact, AND
3. Either (a) the accused knew there was no consent OR (b) the accused believed there was consent yet there were no reasonable grounds for that belief (in other words, a reasonable person would not have thought there was consent, even if the dumbass rapist thought he had the all clear – it is an objective standard, and objective standards are rare for serious offences).
Also, consent is not a ‘defence’, lack of consent or reasonable grounds for believing is an element of the ‘offence’. So, we are not talking about he said/she said, but more often simply ‘she said’ and asking whether that is *on its own* enough to convict. The accused is presumed innocent and may remain silent, they need not claim ‘consent’. Their lawyers will merely challenge the evidence of lack of consent or challenge the evidence of the sexual connection or lack of reasonable grounds. In essence, they will challenge the victim.
Vote:August 30th, 2007 at 2:12 pm
“Setting the jail threashold at a modest 5 years will mean juries will not be too troubled to convict ……. ”
…… even when there is doubt as to their guilt.”
I hope you don’t mind me finishing that for you Tim.
“Juries have no trouble with them if the ID is clear.” ID evidence being the single biggest factor in the majority of proven wrongful convictions.
You are right about our drug law though. It does flip the presumption, and it breaches our Bill of Rights. Yet, the drug law only flips the presumption between degrees of ‘wrongdoing’, you must prove on balance why you had a big stash for personal use. If you can, you are still guilty, but of the lesser crime of possession. What you are advocating (and I disagree with both) is that the person prove their innocence per se. In other words, if they prove consent, the walk. Because with consent there is no crime Tim. It is either rape or sex, and it is consent that differentiates. Proving no “intent to supply” does not change the fact of a being caught with a big stash of weed.
Vote:August 30th, 2007 at 2:42 pm
Tim, I would hate to have you on a jury if a young relation of mine was up on a charge of rape. I have been on a jury on a rape trial where the matter of consent was the issue.
This was the case of so called date rape. The woman was in the bedroom with the man who happened to be her cousin and the mother was in the next room. She was asked why she did not call out or threaten to call out. She claimed she did not want to embarrass or upset her mother.
There was one guy on the jury that wanted to fit the guy from the start. Some people have strange ideas of what consent means or they think it should mean. This guy possibly could have been fitted up if I was not on the jury and there was not a lot more evidence to show the woman was lying through her teeth.
According to some consent must be verbal. Most of the time it does not work like that in real life. What about the case where a wife says she is too tired? The husband persists. She does not resist or say I said no sex and I mean no sex but gives in. She does not complain then but a year later after a split up and she wants to be sure of custody.
I think your idea would end up on a lot of hung juries. I would be very reluctant to send a young man to jail for “just” years because he misread the signals. Women do have some responsibility. Firstly, if they have been out on a date and ask a man of a boy in for a coffee say no before they get involved in heavy petting. Secondly, make it very, very clear they do not want to have sex and do not give mixed signals.
Being genuinely raped can have a very serious affect on a woman’s life. Spending a mere five years in jail for the new crime of date rape could have a more detrimental affect on a young man’s life.
The way to increase the conviction rate is not to proceed to trial unless there is a prima facie case.
Vote:August 30th, 2007 at 3:10 pm
>Setting the jail threashold at a modest 5 years.
I don’t see this as modest at all. It is insufficient if rape has occurred and 5 years too much if it hasn’t! But judging from your comments, Tim, I assume you have spent a modest 5 years in prison?
Vote:August 30th, 2007 at 3:16 pm
The biggest problem in this area of crime is that invariably there is no documented or physical evidence. Rape claims of 10 years ago are totally memory dependant. there was a case only a couple of days ago where some old bugger over 80 was on charges going back 50 years – yes 50 years.
These situtaions are all “he said – she said” unless there is coroborated evidence. Frankly they should never go to court without evidence other than someones word. We all saw what happens in the Chch creech case when its all based on someones word and memory (and in that case wild uncontrolled imagination)
If I were on a jury there is no way I could convict anyone based simply on what one other person in the court case claimed. That would never be good enough. Just like I couldnt convict someone for robbery just because someone else said thay did it (with no other evidence), then I couldnt convict someone for rape….
Vote:no matter how evil the bugger may seem to be.
August 30th, 2007 at 4:06 pm
tim barclay said:
I’ve never resorted to playing the person rather than the issue on a blog before but this takes the cake.
Let’s set aside the fact that you’re blithely condemning at least some innocent men to spend five years locked in a violent zoo with murderers, real rapists and drug offenders.
Did you stop for a minute to consider the “modest five years” that an innocent man’s children might spend without him in their lives? Or that his wife might be forced to live the life of a widow, working and trying to raise children or living on a benefit?
That’s if the relationship survives the false allegation, of course.
Or the lifetime spent after the “modest” five years has passed where an innocent man is regarded with loathing and suspicion by the community as a potential threat to women? Where he can’t find work because he has to declare his conviction?
Why don’t you take a “modest five years” to shut your yap and think things through? Unless of course you’re unfortunate enough to have such an allegation levelled at you and find out what it’s like to go through something as horrendous, sitting in a cell and hoping that not too many tim barclay’s end up on your jury.
Meanwhile barry said:
And rightly so, barry. But you’re one of the few potential jurors whose minds haven’t been warped by vote-hungry politicians and cops keen to make themselves look good, aided by some elements of the media and some “victims rights” spokespeople (e.g. the Australian “Bravehreats” woman who said “Better ten innocent men go to jail than one pedophile goes free”) who push the hype about the supposed level of “unreported” sex offences. It’s the “all men are rapists” slogan taken to it logical conclusion.
Every day cases go to court based on nothing more than she said/he said. The younger and more innocent looking the victim the better the chances that what she said outweighs what he said. Police have told me that they expect only about 50% of these cases to result in convictions but it’s a case of “throw it at the court and see what sticks” rather than exercising proper judgement of the evidence which might see less cases brought to trial but a higher rate of conviction.
Far from discouraging malicious complaints, prosecutors have been known to threaten a complainant who wanted to withdraw her allegation with a perjury charge if she didn’t stick to her original, false, allegation. That’s the stick. The carrot is the handsome payout to the “victim” if the charges stick.
By no means all allegations are false. But some are. And to suggest that the burden of proof be lowered on a charge which leads not only to imprisonment but a lifetime of opprobrium just shows how stupidly brainwashed some people have allowed themselves to become.
Vote:August 30th, 2007 at 5:01 pm
5 years would be the maximum sentence, in many cases there would not even be a prison term. The law could be tightened further to have a time limit on the “date rape” charge because with consent being on the defence it would be unfair to bring historic prosecutions. I would set a time limit of say 2 years to bring a prosecution.
Vote:August 30th, 2007 at 10:41 pm
Tim Barclay – I find it difficult to believe that any sane person could suggest any sort of penalty – let alone a prison penalty – for what is simply hearsay. If there is some sort of assisting evidence – the neighbours heard or reported a loud arguement, or there is physical evidence (not of sex, of resistance), or previous problems between the two – then maybe there is a case to answer. But simply to suggest a prison sentence for someones verbal stand alone claim – never.
This is the trrifying thing about historical claims – and if you Tim ever get one thrown at you then you will understand that in your world you have no chance.
I recall last year (or maybe it was two) a teacher was charged with rape (It should never have got to court). The females only sin was to specify where the rapes took place – one was in the main school corridor, abnother was in a back room of a classroom while the class was in session. Fortunately even the judge could see the stupidity of this and threw it out. But if she just claimed rape, and not where (like my memory is so damaged by it etc) then he well have been convicted. An he was obviously innocent of what she claimed.
Whats more – ALL false claims should be treated as though they were rape cases. Last year (or was it this year) there were two well publicised cases in Auckland and one in Chch and none of the women were charged. One of the Auckland has made false rape claims previously. There is unbalance allright and its not all in favour of males.
Vote:August 31st, 2007 at 10:00 am
barry: ” … and none of the women were charged”
That’s not true.
http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10437561
Vote:August 31st, 2007 at 10:04 am
“There is unbalance [?] allright and its not all in favour of males”
You shouldn’t ‘balance’ things on assumptions barry.
Vote: