The “Ordeal” Is The Point

Not only do we owe the late Justice Antonin Scalia a debt of gratitude for revitalizing the Confrontation Clause, but an appreciation of why it matters. We had become complacent, taking for granted that if a lab report said “cocaine,” then coke it was. Except, as it turned out, maybe it wasn’t. The point was that our Constitution gave us the right to cross-examine witnesses against the defendant, and it meant something.

The Mother Country didn’t have the benefit of Nino, and instead felt the sad tears of trauma.

Rape victims to be spared ordeal of cross-examination in court

Headlines, of course, can often be misleading. 

New measures to spare alleged rape victims from facing live cross-examination in court will be rolled out as part of changes being made by the justice secretary.

Liz Truss announced that from September victims in England and Wales would be able to provide evidence in prerecorded cross-examinations to be played to the jury once a trial begins.

See? They put “alleged” into the first sentence. That makes it all good, right? The shift comes after trials involving children who testify in sex abuse cases.

Truss said the changes to rape trials would prevent victims facing the trauma of confronting their attackers without reducing the right to a fair trial.

She told the Sunday Times: “There is more we can do to help alleged victims in these cases give the best possible evidence they can give in an environment that is much more suitable than open court.

One might immediately wonder if Truss missed that day in law school when they explained that the point of cross-examination was to put the witness through an ordeal, to test their credibility under the stress of the courtroom, before the eyes of the jury. But that would fail to account for the burgeoning concern for protecting the accuser from the “trauma” of confrontation, even though that’s precisely the point of confrontation.

Rape prosecutions are at record levels and the court system is struggling to cope with the high caseloads.

The volume of rape referrals to the CPS from the police rose to 6,855 in 2015-16 – up 11% on the previous year. Of those referred, 3,910 resulted in charges and 1,300 in convictions. However, campaigners claim only 6% of all reported cases result in a conviction for the perpetrator.

Did the Brits suddenly become all rapey? Or are the English suffering the same paradigm shift as here, where the word “rape” has been stripped of meaning, consent becoming the amorphous distinction given fully at the time of drunken debauchery and taken away the morning after? Even the Guardian struggled with the shame of “campaigners” fabricating the stats, because math isn’t that hard.

But this change doesn’t eliminate cross-examination, but rather moves it to a more comforting location, away from the jury’s prying eyes, where “victims” will be able to give their “best possible evidence” as opposed to that testimony proffered under the stress of the ordeal. And, of course, with some additional limitations, because no one wants to traumatize a rape victim.

The new regulations will aim to improve the conviction rate with victims and vulnerable witnesses able to give evidence “in a room in court where it’s much less intimidating, where there are ground rules set by the judge”, said Truss.

She said the changes would mean judges can limit the length of cross-examination to avoid victims having to testify for days on end and would also allow them to cut out any inappropriate cross-examination of a victim’s sexual history before it could be aired before a jury.

The countervailing factor, of course, is that the value of cross-examination will be substantially undermined by eliminating the ordeal, eliminating the trauma of testifying live before the jury, and thereby increasing the possibility of a wrongful conviction. After all, the only point of a trial is to test the government’s allegations against the defendant.

But Lisa Avalos, a professor of law at the University of Arkansas who has carried out comparative work on rape prosecutions between Britain and the US, said false allegations of rape make up just 2-3% of all rape allegations according to a study commissioned by the Home Office.

Avalos, an expert on gender-based violence, said: “The overwhelming problem here is rape, it is not false allegations of rape. Studies have shown the majority of false allegations of rape involve unnamed perpetrators so the concerns some organisations have about reputational damage to identifiable individuals are substantially overstated.”

It’s not like an academic would lie through her teeth about false rape statistics in furtherance of her advocacy, although there is nothing remotely accurate about the numbers. But in our post-factual world, the cause of protecting the “alleged victims” from the ordeal of confrontation justifies the false narrative. After all, what sort of uncaring brute would put empiricism before the horrifying trauma of confrontation?

But that’s not where the cause ends.

She added: “Concern with false allegation masks another problem, namely that disbelieved rape victims have been wrongly accused of false reporting. Approaching rape victims with scepticism enables rape and discourages victims from coming forward.”

Avalos said that if rape cases were properly investigated in the first place, false allegations would never come to court.

As the social justice narrative surrounding rape shifts away from law and facts, and into feelings and rhetoric, the elimination of such a basic notion as the ordeal of cross-examination before a jury to test an accusation becomes eminently understandable. After all, these are the lies repeated over and over, the words unconstrained by definitions and meaning, and too many well-intended people have come to believe them as an article of faith.

But the ordeal is the core purpose of a criminal trial. It is traumatic to an actual rape victim. It’s traumatic to a defendant as well. It’s supposed to be. That’s how the accusations are tested, challenged. No matter how trivial some claim the possibility of wrongful conviction may be, we still adhere to Blackstone’s ratio. He was English, you know.

14 thoughts on “The “Ordeal” Is The Point

    1. SHG Post author

      I noticed that too. Calling them “alleged victims” is, in the feminist narrative, damn near calling them liars. It almost made me cry.

      1. B. McLeod

        Although, as you read along, the “alleged” soon drops out. Too much trouble, apparently, to actually entertain any doubt all the way through all the paragraphs.

  1. Ken Mackenzie

    Although intended to assist the prosecution, this pre-recording system often helps the defence. It creates an emotional distance between the witness and the jury (what salesman would prefer to make his pitch by video?). Jurors are used to viewing with scepticism people who appear on television screens. There’s also the opportunity to edit out the odd prejudicial “slip”

    1. SHG Post author

      An interesting thought. But then, we’re a TV-indoctrinated society, and we believe what we see on the tube. While it may blunt the impact of direct, it will certainly take the punch out of cross. I would think the latter far more of a problem than the former.

  2. Fyodor

    The constant media regurgitation of that 2-3 percent stat drives me nuts. It’s basically treating all allegations as true unless the accuser recants or the police affirmatively determine the allegations to be false (which is not something that police are in the business of doing). An allegation against someone where there’s not enough evidence to indict or someone found not guilty at trial is still a “true allegation.” So this guy’s position is basically “we need to find more people guilty at trial because the people being tried are already guilty”

  3. Chris

    Although you may think it makes sense that the Secretary of Justice would know something about justice, this is incorrect. Liz Truss in fact studied politics; which goes a long way to explain her “reforms”.

    1. graham

      Here in the UK at the moment, most of our politicans dont seem to know anything about what they are repsesenting. We have a secretaty of justice who has never been near anything legal, A secretary of state for Health who knows nothing about medicine or the health service, A minister for transport who knows nothing about transport, minister for science.. ect.. and so on.

      Unfortunately we also have a leader of the opposition who appears to know almost nothing about opposition, which as he is also a die-hard socialist is quite an achievement.

  4. Susan K

    Are we required to accept that testifying is always traumatic for witnesses? Has that truly been established? Can’t a girl be empowered (or some other positive feelz word) by withstanding cross?

    1. SHG Post author

      There are certainly numerous benefits to testifying in court in front of the accused. Empowerment. Catharsis. Closure. This infantalizes women by presuming them too fragile to testify like any other witness.

  5. Matthew S Wideman

    My favorite part of their argument is…”studies show just 2-3% of rape allegations are false”. Just using simple math… If there are a million rapes in the United States, then between 20,000 and 30,000 people have been falsely accused and a high percentage of that number would have been convicted. That is very sobering math. That’s a lot of broken eggs for a social justice omlet. Especially, where we already have a system in place that designed specifically to weed out false accusations.

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