BETTER TO JAIL 10 INNOCENT THAN 1 GUILTY MAN FREE?

A Phil Ackman Article

Recent research shows half all Australians now believe #sexualconsent a minefield for men. So lethal the Federal Government has announced a $40m education campaign to explain the ever more precise — ever more complicated — ever more bewildering rules. And if a new report is adopted, any liaison between males and females becomes so potentially dangerous, a cautious lawyer might advise to perhaps take up cliff diving instead.

The problem begins with the requirement for affirmative — not just behavioural consent. The partner — almost always female — has to state and regularly re-state her consent. No more nods and winks —the subtle and seductive dance that used to precede the poetry of love.

But consent— even screamed from the rooftops —no longer counts if the partner is drunk — under the influence of legal — or illegal drugs. Perhaps a mental condition a love-stricken Lothario ought to have reasonably known. To be determined years later, in an icy courtroom — under the pitiless gaze of a Judge.

Nor does lethal risk recede after this soul-deadening interrogation. Consent is almost always spoken — likely whispered in a lover’s ear. And spoken is not worth the paper it’s not written on — even though there must be a fair bit of verbal — and non-verbal — consent going on — given the eight billion of us on the Planet.

The crucial issue, whose answer may — or may not — keep you out of a jail cell for years to come? Can you prove your partner consented? The answer is almost always NO. A deadly standoff of He said/She said. Why do you think call centres record every call?

Nor is consent in writing much help The devastating counter punch? “I was under duress. I felt threatened. He made me sign it.”

Long before any court case, of course, the accused’s life is already a train wreck. Career — job — family — friends — gone — forever.

The court case itself increasingly stacked against men and in favour of the “victim-survivors” — the fashionable new name for the accuser. A title that proves at least some of us have pronounced the accused guilty, well before the court case has begun.

There is also the growing legal thesis — women never lie — certainly about sexual offences — a near insurmountable roadblock for any male claiming consent. Accordingly, a woman’s testimony should presumably always be accepted — even if riddled with holes, errors and mistakes — because a traumatised victim cannot necessarily be expected to have their story straight.

Nor can sexual history usually be raised in court, although one recent case determined the “victim-survivor” had previously made similar accusations against a number of other males. Even splutteringly thin claims now have their day in court. Perhaps Prosecutors are terrified of the white hot community rage if they throw a legally unprovable case into the trash.

In the last several weeks an advisory group established by the Federal Attorney General, seeks to further weight the scales of justice against men. One crushing recommendation? Dump “beyond reasonable doubt” — the standard of proof required in every criminal trial in the British justice system for the last 250 years. To be replaced with the much less arduous “balance of probabilities” — which would likely put many more men in jail.

The lived experience expert advisory group also reportedly proposes sweeping changes to cross examination — a crucial weapon used in every Trial to test the accuser’s story. A cat and mouse game whose outcome is often central to discovery of the truth. But under the new recommendation, cross examination would become a mouse pursued by a clawless cat in a straitjacket.

The advisory group submission also proposes a crack down on “inappropriate” defence counsel questioning — and a new requirement to share their probing questions — in advance — with the Prosecutor.

As one Sydney criminal lawyer is reported to have said: “Requiring one side only to roundtable their tactical approach with an opponent in a case adjudicating serious allegations is laughably unfair.

“The real impact will be prosecution/plaintiffs fixing up witnesses once they know what the defence is planning. New statements would be drafted, explanations for discrepancies found …all cleaned up in advance of the final hearing…”

The advisory group additionally recommends dumping the right to silence — another legal principle going back centuries. Their proposal would force the accused to testify — subject to the full force of the Prosecutor’s cross examination — while the Defence attorney’s own wings are well and truly clipped.

There is no doubt males do perpetrate most sexual offences. But even the fieriest feminist might concede some accusations are just false.

Would these additional measures not make almost every accused a slam dunk for conviction — ruin — and jail? Would mothers unfortunate enough to bear sons be happy with this?

On the other hand, perhaps “balance of probabilities” is too high a bar, since males might occasionally be determined victim-survivors themselves — and proclaimed Not Guilty. Would it be safer to opt for the far lower “balance of possibilities”? Every court case a slam dunk for the Prosecution. Bring a toothbrush. Do not pass Go.

Which raises the most important question of all. Is it better to jail 10 innocent than set one guilty man free?

I’m #philackman and this #philackmanarticle first to air on #cairnsfm891