(This is the second half of Laura’s in-depth interview with Dr Ros Burnett, Senior Research Associate at the University of Oxford’s Centre for Criminology. You can read the first half here)
Laura Perrins: Towards the end of the book you write a chapter on reducing the incidence and harms of wrongful allegations of abuse. What are the key changes you would make to the criminal justice system to stop this type of circus happening again?
Dr Ros Burnett: In that chapter, I brought my suggestions and those of other contributors together under over-arching proposals:
(1) that wrongful allegations of abuse should be officially and publicly acknowledged as a serious and rising social problem;
(2) that investigative approaches and standards of evidence are improved;
(3) that we reduce hostility between advocacy groups and transcend binary thinking.
Fundamentally, and quite simply, the occurrence and dangers of false (that is, untrue) allegations of sexual and child abuse need to be acknowledged and factored into systems – not only in the criminal justice system but across all organisations involved in safeguarding, child protection, victims’ helplines and support services for victims of sexual and physical abuse. I have sympathy for victims of sexual abuse whether recent or long ago because there is typically no independent, physical evidence to support their allegations and the case turns on whether or not they are believed. But we need to stop denying that false allegations exist and to resist the imposition of a victim-centred version of the truth. The Independent Inquiry into Child Sexual Abuse has a so-called ‘Truth Project’ that is a perfect example of this, assuring anyone who comes forward as a victim that they will be heard and not cross-examined, but fobbing off victims of false allegations who want to add their insights.
One of the arguments repeatedly made following publicity given to ‘not guilty’ verdicts in trials for sexual assaults is that false/untrue allegations are extremely rare. That claim is highly questionable when allegations of sexual assault and child abuse are taken in the round – including those that don’t become police matters and including historical as well as recent cases. There is a reason why the statistics for false allegations are low: it is not a crime to make a false allegations in most cases, so they don’t come up in crime figures, and the kind of funding that has been made available for self-reported victim surveys of sexual abuse is not forthcoming for surveys of self-reported victims of false allegations.
What is rare are false accusers who are found to be, and charged, with ‘wasting police time’ or ‘perverting the course of justice’. Against these low figures are the rising statistics for recorded recent and non-recent child sexual abuse and rape. With the leaning towards a presumption of guilt in such cases and mandatory reporting of suspected abuse, it is inevitable that more innocent people will be caught in the net and will be counted among recorded crime statistics. It is not surprising therefore that the rate of attrition between the reporting of such offences and the conviction rate has remained stubbornly high.
We also need to look at the standard of investigation and the standard of evidence allowed. There are many ways in which policy and professional guidelines are biased towards believing the complainant. Confirmation bias is built into the system. From the start the accuser is treated as a victim and investigators are steered away from questioning their credibility. Sir Keir Starmer when he was DPP argued that ‘What is required is an attitude shift across the criminal justice system. The old tests of credibility have to go and they have to be replaced with a more sophisticated approach that starts with the assumption that the victim is telling the truth …’ (Starmer, 2014: 782)[ii] and that is what has happened. People I’ve spoken to in the course of my research who were acquitted or who were convicted but maintain they are innocent, felt that the police decided that they were guilty from the get-go and failed to pursue other lines of inquiry that would have thrown doubt on the allegations. Criminal justice practitioners need to open their minds to the possibility that some prisoners maintaining innocence may be doing so because they are indeed innocent rather than because they are ‘in denial’. All organisations dealing with alleged abuse should have a better understanding of how memory works, and recognise that accounts of events are not simple mirrors of fact but are constructed, revised and are influenced by others.
None of us would want to go back to a state of ignorance about what goes on behind closed doors, within families and institutions, or where victims may have thought that their situation was unique and too shameful to be mentioned. But exhortations to believe have become an article of faith that it is sacrilegious to depart from. Secondly, slippage into referring to accusers as victims implies a forgone conclusion. Treating allegations as believable but not accepting them unquestioningly is a clearer starting point for investigations.
We need a more cautious and balanced approach not only in the criminal justice system but across all organisations involved in safeguarding, child protection, victims’ helplines and support services for victims of sexual and physical abuse. The move towards mandatory reporting, as soon as anyone becomes slightly concerned about a child, risks causing greater damage to that child than discreet enquiries and support, as well as unnecessary intrusion into family lives and the danger of subjecting innocent people to criminal justice processes.
It would be healthier of we could rein in the hostility in debate. There is a shameful rudeness and sneering sarcasm between those representing victims of abuse and those speaking up for accused people maintaining innocence. And we need to transcend the binary. Our justice system divides people into guilty or innocent but it is imperfect: the possibility of false negatives (when guilty people are let go) and false positives (when innocent people are convicted or left in a limbo of suspicion) should be recognised. Obviously each of those possibilities is more likely when all we have to go on is the accounts of the accused and accuser – and maybe what we can know of the character of each. Also, we need to allow into the debate more differentiation between the degrees of seriousness of offences committed: not everyone who becomes inappropriately sexually aroused and steps over a line is a predatory evil monster. There’s more to say here, but it is indicative of the hostile climate that it has become unsafe to do so.
We have to go back to being more open-minded when allegations are made, which means taking each case on its merits rather than applying some formulaic shibboleth about always believing accusers. It is extremely worrying that official reports so rarely mention the danger of allegations being false, or acknowledge that people lie, misremember, are persuaded to interpret past mores of behaviour as sexual. Public opinion too needs to be challenged to adopt a more nuanced and objective stance. As a society we have become hyper-sensitised to the possibility of sexual abuse covered up in the past and a chronic threat in the present.
Laura Perrins: Just briefly, how do you think the feminist idea behind believing the complainant first will influence the criminal justice system. Is the English criminal justice system robust enough to withstand it, and stop the burden of proof being undermined?
Dr Ros Burnett: Both of those have already happened. The rallying cry to believe all individuals reporting abuse goes back to ‘the Californian model’ introduced in the 1970s/80 that set out to combat systematic disbelief in sexual abuse of child protection, and that was adopted by social services and psychotherapy within the UK, whereby if someone claims they were the victim of incest or sexual abuse in institutions, then they are. To question the truth of those claims is seen as tantamount to re-traumatising the presumed victim by rejecting their claims or making them relive the experience during cross-examination. Accepting that as a general principle effectively reverses the presumption of innocence until found guilty.
There have been numerous policy and legal amendments geared to prioritising the needs of the presumed victim so that they are less diffident about reporting sexual offences against them and with a view to achieving more convictions. Too many to cover here, but among them are:
- special measures to protect complainants from direct cross-examination by the accused or having to face the accused and to protect their identity;
- training programmes for police, magistrates and judges to re-educate them about rape and banish so-called rape myths;
- statutes that removed the requirement for judges to warn juries about the dangers of uncorroborated evidence given by complainants in trials for sexual abuse;
- judges’ instructions to juries (eg on reasons for delayed reporting; on inconsistency in evidence given) to discourage them from entertaining doubts about the credibility of the complainants;
- case examples in the Crown Court Compendium (to aid judges and magistrates in their summing up) that consistently label the complainant as the victim;
- across the board, persistent references to complainants as victims even after there has been a not guilty verdict.
When the system and institutions are encouraged to perceive complainants as victims, and accordingly in need of protection and lifelong anonymity, then juries are likely to see them as victims too. In cases of false positives wherein an innocent person is convicted, the appeal system will not free them if they are unable to provide a fresh argument or evidence. This is unlikely if no crime ever took place; there will be no DNA or real culprit to discover. And drastic changes to the legal aid system mean that opportunities to gain the most appropriate defence are severely limited for all but the most wealthy.
I can understand why feminists object when calls are made to increase protections for defendants in sexual cases, such as granting them anonymity or the propensity evidence that was allowed in Ched Evans retrial. It is still the case that victims of rape may not be believed and juries may acquit some who are guilty. There are always going to be some mistakes made in cases where the only evidence are the accounts made by the complainant and the defendant. We must not turn the clock back to a previous time when victims reporting sexual assault were routinely not believed, but I don’t think that those protesting against attention to false allegations appreciate the extent to which the tables have turned so that innocent people can now easily come under suspicion and it is now the accused parties who are systematically disbelieved.
Fears that victims will be afraid to come forward seem over-exaggerated; although expressing such fears too strongly may be self-fulfilling if victims now decide that they will be badly treated and not believed. It is a sense of grievance and anger among feminists about sexual exploitation and treatment of women and girls that has driven changes in law and policy. That has resulted in improved treatment of women and victims by the criminal justice system, though many would argue not nearly enough. The greater sensitivity towards victims is unlikely to be reversed by the outcome of the Ched Evans case or the recommendations of the Henriques Report. Allegations will continue to be taken seriously. Genuine victims are likely to welcome measures to deter people from fabricated allegations, because of the expense and time that is lost on false claims.
I don’t think the challenge of responding appropriately to allegations of sexual abuse should be reduced to a feminist issue. Victims and accusers are not split along gender lines: boys and men get raped, more females are being accused and convicted, and many allegations of historical child sexual abuse are made by men. Somewhere among the various streams of people identifying as feminists, there are some I respect greatly whose work is balanced and constructive, but there others who make me ashamed of feminism. The problem of wrongful allegations is better framed as a human rights issue. The present culture of belief when people are accused of sexual offences encroaches on the rights to a presumption of innocence until found guilty, to a fair trial, to a private life, and to liberty if one has not committed a crime.
[ii] Starmer, K. (2014) ‘Human Rights, Victims and the Prosecution of Crime in the 21st Century’, Criminal Law Review, 11: 777–87.