In which she ponders guilt and innocence

[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.

Comments

[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.

[zeborah]

The drug defence sounds like a desperate ploy Ancham's lawyer came up with at some point which didn't work out so well because of the minor detail that there were no drugs in his system.

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.

Hrm, I dunno. "Lying-to-punish" is one defence ploy frequently used by those who don't realise/want to admit that the justice system generally punishes the rape victim much more than the rapist (here's a particularly fun example); but "provocation" does get raised in both cases. In the murder cases, the defence says "The victim was gay/a bitch, which provoked my client to a state of mind where he didn't know what he was doing." In the rape cases, the defence says "The victim wore revealing clothes / flirted / had had sex with someone else once sometime / didn't say 'no' loud enough, which provoked my client to a state of mind where he was incapable of stopping himself."

To both of these my response is, "And you're provoking me to a state of mind where I find you guilty as sin, and all complaints may be referred to my icon."

[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.

[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..

[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.

[zeborah]

I would totally keep Battered Spouse Syndrome on the books as a defense. But even this guy didn't quite have the nerve to claim *that*.

[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 . . .

[zeborah]

Yes. That's why I said it's a good adage. But since assuming that the defendant is innocent until proven guilty often requires assuming that the victim is guilty until proven innocent, it's also flawed. And recognising this should be one of the things that separates us from might-makes-rightism.

[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.)