Wednesday, July 09, 2014

Time to defend the presumption of innocence

Last week, the government used sexual violence as an excuse to undermine the right to silence. Now Labour wants to do away with the presumption of innocence:

The Labour Party's plan to reform the criminal justice system would mean that the accused in a rape case would have to prove consent to be found innocent -- a change it acknowledges as a monumental shift.


The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual.

"The Crown has to prove more than just sex; the issue of consent has to be raised by the Crown, they have to prove the identity of the offender. They would have to bear that burden of proof before a switch to the defence to prove consent," Mr Little said.

He said the issue of proof would only apply where allegations of rape had been raised.

"It is pretty radical thing to say that 'all sex is rape' unless you prove consent. The reality is that in 99.9 per cent of cases, no one is being asked to prove consent."

This clearly violates the presumption of innocence affirmed in the Bill of Rights Act (not to mention the Universal Declaration of Human Rights, ICCPR, and every other major human rights instrument). Under that presumption, the state has to prove each and every aspect of its case ("the burden of proof is on he who declares, not on he who denies"). That's clearly not the case under Labour's proposal.

Our Supreme Court has already found that the presumption of supply in the Misuse of Drugs Act violates the Bill of Rights Act for exactly these reasons. They will draw exactly the same conclusion about this proposal - as will the UN Human Rights Commission.

I accept that rape cases are difficult to prove. This change will make them remarkably easier. If Labour gets its way, there will be a lot more convictions for rape. And a lot more of them will be of innocent people. We presume innocence because we believe it is far better for the guilty to go free than for the innocent to be punished. Labour clearly does not believe that any more.

A party which does not believe in and will not defend the presumption of innocence does not deserve your vote. All they deserve is your contempt. If they retain this policy, you should not vote Labour.