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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