'Rape is a crime to which there are usually only two witnesses'

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Proof of Rape

Apart from gang rape, rape is a crime to which there are usually only two witnesses – the parties involved.

Even when the victim presents to police, is referred for forensic examination and provides clear proof of sexual intercourse, and even equally clear proof of violence associated with the act, in the case where the parties are adults, at least one of whom is male, the unnecessarily confused issue of consent sometimes stands as a defence to exonerate the perpetrator, for lack of witnesses.

It is true that proving that rape has occurred is slightly less difficult these days than it was in the past, when practically all police officers and officials handling the case were male, and if there was any indication, in a non-consenting heterosexual complaint, that the woman involved was known as having had any previous sexual activity, immediately doubts were raised about the veracity of her evidence in the  minds of investigators and – if the matter went to trial – the jury .

But when it is a child who is violated, and particularly where the perpetrator is a respected person, member of the family, friend of the family – any or all of the above – few children would expect to be believed if they raised a complaint.

If, as a further safeguard, the perpetrator has threatened the child in any way in order to discourage any disclosure of the violation, then the likelihood of the child speaking out is very low.

When the Crown Prosecutor considers the evidence in relation to any indictable offence, the decision whether or not to proceed to lay charges and prosecute is based on the assessment of the evidence and whether it is likely to convince a jury beyond reasonable doubt – a very high barrier in many cases.

The intent of that barrier is at least two-fold. Firstly it is designed to limit (it is impossible to guarantee exclusion) the number of occasions when an innocent person is convicted. Secondly, to save expense to the court when an appeal against conviction is successful.

There have been many documented cases of an alleged perpetrator being wrongfully convicted and sometimes, years later, being exonerated. Particularly in USA states where racism is still entrenched, this has been far from uncommon.

Implicit in the ‘beyond reasonable doubt’ requirement is that there will be cases where the person charged is found not guilty, because the condition cannot be met.

The main hope, for those who feel that justice has not been done, is that later evidence in relation to the same or similar offences, committed by the same person, will later be examined by the judiciary with a different outcome.

Disclaimer: The above article is based on Australian legal processes in general and is not referring to any particular cases, past, present or future.

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19 comments

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  1. Joseph Carli

    The point of this post?

  2. Rossleigh

    Joseph Carli The point of your comment?

  3. LambsFry Simplex.

    It may be a case cannot be proven.

    However, if we have a brothel raided, would it be the prostitutes or those using them that are solely offending?

    What about the pimp, or the madam?

    Who was overseeing the paedophile brothel for thirty years without ever knocking over the punters for harming the “merchandise”?

  4. Michael Taylor

    I found this interesting. I’ve learnt something I didn’t know.

  5. RosemaryJ36

    Michael – what was that?

  6. Joseph Carli

    The point of my comment was to encourage a degree of questioning the status quo of what is “Law”..and what is being bailed by friends in high places…because THAT is what happened today…not law…not justice…but a consciousness of kind favour and damn the public perception.

  7. Kaye Lee

    “The point of this post?”

    David Ridsdale, the nephew of Gerald Ridsdale, told the inquiry hearings in Ballarat that he reported the abuse by his uncle to Cardinal Pell in 1993.

    He said Cardinal Pell was not shocked and instead allegedly asked Mr Ridsdale what it would take for him to stay quiet.

    Another survivor, Timothy Green, told the royal commission that the cardinal was dismissive when he reported that Brother Edward Dowlan was abusing boys at St Patricks College in Ballarat.

    “He said ‘don’t be ridiculous’,” Mr Green said.

    “Father Pell didn’t ask any questions, he didn’t ask ‘what do you mean?’ or ‘how could you say that?’

    “He just dismissed it and walked out. His reaction gave me the impression that he knew about Brother Dowlan, but couldn’t or wouldn’t do anything about it.”

    https://www.abc.net.au/news/2015-05-20/cardinal-george-pell-tried-to-bribe-paedophile-victim-inquiry/6484420

    Joe, our first disagreement came because you were describing women as ripe fruit ready to peel and I told you it made me uncomfortable. That didn’t stop you – it led to personal abuse about how no man would be interested in me.

    Does that make it a tad clearer perhaps?

    I would suggest (and hope) that Pell’s legal woes are not over.

  8. Michael Taylor

    Rosemary, because a part of it reminded me of a case in Adelaide back in the 1980s.

    A young girl of 4 was raped by a family ‘friend’. He continued with the rapes for the next seven years, threatening to kill the child if she were to tell her parents.

    At 11, the girl could contain her nightmare no longer, and told her parents what had been happening for the past seven years.

    The child rapist was brought to trial, charged and imprisoned. Before too much time had passed, he walked away a free man.

    Upon his release the mother of the girl wrote to one of the Adelaide papers listing cases where people had served longer sentences for unpaid parking fines.

    I’m a law-abiding person, but sometimes the law (or perhaps the courts) absolutely suck.

    I am also feeling for Keith Thomas at the moment. A post of his last year – about his raping at the hands of a priest – made me weep.

  9. Joseph Carli

    A point that ought to be examined but will not in this climate of oligarchy with NO conservative political figure or friends of the same being truly investigated, let alone charged and brought to trial, is how or who is the “shady character” pulling the strings..and when those strings extend right up to the highest legal authority in the land..we got a problem so much bigger than the interpretation of a point of law…
    I have said before that the most difficult problem to be overcome in todays aquittal would be in how to frame the legal vocabulary so that they could get away with the decision.
    Kaye Lee..if you are looking for a quarrel, I am not biting tonight…so good night.

  10. Kaye Lee

    I am never looking for an argument Joe. I am looking for understanding.

  11. Joseph Carli

    Further, I would predict, with little chance of fail, that those eight civil cases against the bishop will be forwarded to chancery to await either the bankruptcy of the complaintants or the blowing of Gabriel’s Horn….whichever comes first.

  12. RosemaryJ36

    Michael – I know generalisation is dangerous, but I sometimes feel that there have been too many occasions, maybe fewer recently, when predominantly male decision-making bodies have grossly underestimated the effects of abuse on females and children. Acceptance of the mental health damage has been a more recent phenomenon. Every time the issue of child abuse is discussed, the comment is almost always made that it is probable that the most common perpetrators are family or close to family friends. But – like domestic violence – who is taking it seriously?
    And it is elected politicians who pass the laws!
    And the law and order mob almost exclusively concentrates on drugs and property issues.

  13. New England Cocky

    Pell got off the same as Nick “Goulash” Greiner got off; because it was “not nice” for a cardinal to be held accountable for his sins, just as Greiner on appeal got off corruption charges after he resigned as Premier.

    This procedure operates in the NSW Police Force where an Armidale woman was arrested during a domestic incident, taken to the Armidale cells where later a very large highway patrol policeman with over 25 years experience waa caught on CCTV kneeling on her chest and repeatedly hitting her. The policeman, and the Station Inspector, also a 30 year veteran, were both allowed to resign to protect their accumulated superannuation and pensions.

    Similarly, Benito Duddo resigned his police position two weeks before being eligible for superannuation, after an investigation into abuse of Aboriginal teenagers.

  14. Peter F

    Anyone who has read “Cardinal – The rise and fall of George Pell’ might have some understanding of the man and his life as a religious ‘leader’.

    I recommend it to everyone who would seek some sense in all of this. It is not a pleasant read.

    I note that has not received any reaction from the church or Pell.

  15. Joseph Carli

    I would think the Pell dismissal would have been ‘war-gamed” a long while back…and we can see the usual pro and cons of the arguement coming out from the usual suspects…it was no misjudgement on the part of that ancient Gaulish general whose band attacked and sacked Athens and were at the point of burning all the writings and scrolls of the learned academics when he commanded..: “Leave them their writings, for when they pick such up, they will not pick up arms against us.”….wise man…because even in these times we are playing at “rule of law” poker with the ruling class…WE; The Public are playing a hand of “moral rule of law” and “ethical justice”, whereas THEY are holding the cards of “pseudo rule of law” and ” unethical justice”……PLUS..they can play the unlosable card up-their-sleeve of “what would you rather have”……a cruel choice and I hear many on social media cheering for that card to NOT BE TOTALITARIAN COMMUNISM….because that is the card of choice…we suffer these “temporal lapses of judgement” where our betters make a “captains pick” on who gets the thumbs up or down and we cop it sweet, or we opt for the Mao Solution and a communist state…
    I don’t see a queue forming for the latter…

  16. Joseph Carli

    Here..proof..: ” Alexander Downer
    @AlexanderDowner
    ·
    11h
    We either save avoidable deaths & destroy society OR accept avoidable deaths & save society. The moral dilemma of our time.”

  17. Terence Mills

    Many years ago I sat on a jury involving a case of multiple rapes over a period of time and concerning a woman who had been brought to Australia from an Asian country ostensibly in what was suggested to be a mail-order bride transaction but in fact was a trade involving domestic servants (i.e. modern day slavery) that is still going on : the Department of Immigration, as they were then known, were in attendance during the trial.

    The difficulty we had as a jury was that, on the instruction of his legal team, the accused declined to give evidence or to take the stand : his right to silence was preserved.

    The young woman – who spoke little English was questioned relentlessly through an interpreter and it was the evident distress of the female interpreter that gave the words of the victim plausibility in our minds and demonstrated the evident distress of the young woman.

    Beyond a reasonable doubt is a high threshold and one that, in the case that I am recalling, may not have been reached had it not been for the interpreter and her evident distress in trying to put into words the sometimes brutal evidence that the young woman had the courage to bring forward.

    We were unanimous in our decision based on the evidence and we convicted. The matter went to appeal on the same basis as the Pell case : that the jury’s decision was unsafe and unreasonable relative to the standard required. The appeal was thrown out and that was the end of the matter. Had it gone to the High Court (highly unlikely in the circumstances) who knows what the learned judges would have determined – they of course never see the the parties neither do they ingest the passions or the sentiment of the court room.

    The jury system is a valuable component of our justice system and one that we need to ensure is not undermined.

  18. RosemaryJ36

    Having studied law as a mature age student – and practiced for a few years – I am well aware that most people do not fully understand how the law works. Nor do they expect that the law will not give them justice.
    I was very sad but not surprised that the appeal to the High Court overturned the original decision but I am confident that the thinking of the Judges – given the requirement that the prosecution must convince the jury ‘beyond reasonable doubt’ – might have been different if the prosecution had been much more successful in demonstrating that Pell’s ‘usual practice’ was a long way short of being set in concrete.
    The need to prevent punishing an innocent person exceeds the need to ensure a guilty one is convicted.

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