zeborah: Map of New Zealand with a zebra salient (Diddums)
[personal profile] zeborah
In more-or-less breaking news, twelve people in New Zealand have agreed that stabbing someone 216 times counts as murder, not manslaughter. (Note for those unfamiliar with the case: the text in that article is ambiguous on the subject, but there's in fact no evidence whatsoever that the victim ever attacked the murderer with those scissors.)

So after doing a little cheer (because it was just nauseating to see that guy in national news justifying his actions by claiming that his victim was "controlling" and a "bitch" and a "slut" and that Google proved she had a personality disorder etc) -- and then doing a big cheer -- I started pondering that old adage.

Innocent until proven guilty.

This is a good adage with good reasons for it. If you start out assuming guilt, the defendant won't get a fair trial, and that's not good; not to mention the potential social stigma.

But and however. This works just fine for 'victimless' crimes; but it fails horribly when the crime is against a victim. Because in that case, to assume that the defendant is innocent requires assuming that the alleged victim is lying, deluded, or somehow otherwise to blame for the alleged crime.

In other words, assuming that the defendant is innocent until proven guilty frequently entails assuming that the victim is guilty until proven innocent. Victim-blaming isn't just a side-effect of our justice system; it's what the system is *built* on.

This is broken. If we hold the principle that we may not believe without proof that the defendant's alleged actions justify a jailterm, then to believe without proof that the victim's alleged actions justify having a banjo stuffed down his throat is nothing but hypocrisy. A truly fair system should assume that the victim, just as much as the defendant, is innocent.

Date: 2009-07-22 05:33 am (UTC)
From: [identity profile] phaetonschariot.livejournal.com
Sass told me on the phone, I was so happy :D If you stab someone 216 times there really is almost nothing that can be used as a defense. Even if she'd been an utterly reprehensible person.

I saw the Ancham vs Brown reference in that article and had to look up more about it coz I was like "wtf why did I not hear about this earlier?" In earlier articles they said Ancham was saying he thought he'd been drugged but it seemed like that wasn't in the later ones. Apparently he also "threw a double bed" out a second storey window. o.o One of the articles also drew an outright comparison where the "gay shock" defense in a heterosexual situation (obviously it's not gay shock in that case, but the theory that an unwanted sexual advance can be a defense for murder) means that any woman who gets an unwanted sexual advance is justified in killing the man who issues it. Which is patently ludicrous.

It's part of why rape is so hard to convict on, too. It's not like murder where there's definitely a dead person and the justification is that they were bad enough to die. The defense in a rape case isn't that the victim was bad enough to be raped, it's that s/he is lying to punish the accused. Either A is guilty or B is, rather than A is guilty because B was guilty first.

idk if any of that actually made sense.

Date: 2009-07-22 05:58 am (UTC)
From: [identity profile] phaetonschariot.livejournal.com
Yeah I figured if he was saying it that soon after the crime they would have been able to check, and since they didn't say he had been drugged...

which provoked my client to a state of mind where he was incapable of stopping himself.

But women are too emotional to do business/run a country/etc. Making sense: doing it wrong. Clearly men should not be allowed out, especially when under the influence of alcohol or other mind-altering substances, without a minder to keep their impulses in check in case they see a girl's bare calves.

Date: 2009-07-24 11:22 am (UTC)
From: [identity profile] kyhwana.livejournal.com
!@#$%.
The "gay shock" thing might not affect opposite sex rape victims, but the idea that a guy could get off (no pun intended) a murder charge for killing a gay person (myself being one) because of "gay shock" is sickening..

Date: 2009-07-22 09:55 am (UTC)
ext_12726: Me at the computer (pebbles)
From: [identity profile] heleninwales.livejournal.com
The "innocent until proved guilty" ideal works fine with crimes where the question is, "Did this particular person commit the offence?" but, as you say, it doesn't work where there is no doubt whatsoever about the perpetrator, but you're deciding between a lesser offence, such as manslaughter and a more serious offence such as muder.

I have no knowledge of the crime you're referring too, but there have been several high profile cases in the UK where women who were charged with murdering their abusive husband/partner (sometimes in pretty horrific ways) did get the charge reduced to manslaughter on the grounds of self-defence or extreme provocation, so one has to be careful about letting one awful case change law and/or opinion in this matter.

Date: 2009-07-22 12:21 pm (UTC)
From: [identity profile] jhetley.livejournal.com
People and governments make false accusations all the time. "Innocent until proven guilty" takes that into account. It's one of the things that separates us from Stalinism . . .

Date: 2009-07-22 11:32 pm (UTC)
From: [identity profile] painoarvokas.livejournal.com
In 17th century England, there was no presumption of innocence. If you were on trial, the prosecution's case against you was convincing (it got the grand jury to find a true bill, after all – and they were particularly strict about rape charges). In a real sense, you were assumed to be guilty, and it was your job to defend yourself, to prove your innocence. Despite that, the assizes were pure hell for a rape victim, and most decided not to prosecute, or prosecuted a lesser offense.

However, I believe the true content of "innocent until proven guilty" is not as a guideline to the judges, it was as a rule for the whole society: one must not treat a criminal as a criminal until a court of law has certified him (or her) as such. Thus, no lynchings, etc.

The proper guideline in the actual trial procedure is in my opinion "we do not know in advance" – the absence of prejudice against the defendant. And the usual phrasing for the conviction threshold isn't "innocent until proven guilty" – it is "proven beyond reasonable doubt". (Which, of course opens another large can of worms, but I digress.) This avoids, among other things, the implication of the victim being a liar by assumption.

By the way, in my opinion (and in my experience in Finland), there is typically no assumption that the victim is lying. In fact, at least in Finland, the word of the victim carries a lot more weight than the word of the accused, simply because the victim makes the accusation under the threat of a perjury charge. However, I believe, even if a court finds a defendant not guilty because it doesn't believe the victim or a witness is lying, it only occasionally results in perjury prosecution – after all, there is a big difference between reasonable doubt of the witness's truthfulness and the lack of reasonable doubt in them lying, or even a probable cause finding.)

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