One of the first things taught by high school teachers of legal studies is the difference between a ‘not guilty’ verdict and factual innocence. Not guilty only means the charge against the accused is not proven to the standard required in criminal trials—beyond reasonable doubt. Consistent with the presumption of innocence, the standard of proof is deliberately set high: the prosecution needs to prove every element of the crime beyond reasonable doubt. It’s not enough to prove that most of its case meets that standard. It’s all or nothing.
As I write this, the High Court will soon hear arguments and reach a decision on the appeal of George Pell, former Archbishop of Melbourne, against his conviction for historical child sex offences. In an earlier piece, I argued that it was open to the jury to conclude he was guilty. I also argued that a conviction is a conviction, not a finding to be held in abeyance until every appeal has failed. However, at the time of writing this piece, I don’t hold high hopes for the conviction to survive on appeal. I’ll explain why.
In this piece, I am drawing on my experience of studying law, before going into practice as an HIV and sexual health educator, and then returning to research as a PhD student in regulation and governance. As a researcher I study how the criminal law responds to sexual conduct involving HIV—whether or not the virus is passed on. In Canada, having sex without disclosing HIV-positive status has, for a long time, been seen by courts as a fraud that negates consent, turning even desired and willing encounters into cases of sexual assault. I have traced how both trial and appellate judges use their own beliefs, moral reasoning and ‘common sense’ to assess the evidence in such cases. The same phenomenon has long been a feature of legal procedure and decisions in rape cases.
This cuts against the law’s own mythology, which suggests lawyers and judges focus solely on the technical, explicit and substantive issues—consciously excluding the tacit dimension, the emotional, embodied, relational, and socially and culturally embedded issues and questions raised by cases before them.
Following the Royal Commission on Institutional Responses to Child Sexual Abuse, I believe the community is beginning to understand that trauma creates particular challenges for complainants in sexual assault cases, and that delays in reporting the crime, and inconsistencies in the narrative told decades later, do not mean the witness is unreliable or that their evidence is unsafe.
In a criminal case, the judge, as legal technician, obviously and necessarily takes a different perspective from the legally-untrained jury member. But the legal-technical judgment of sex offences is thoroughly infused with beliefs about how the ordinary person behaves. For a long time it was a legal principle that a rape accusation is ‘an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent’, an opinion of a 17th century Chief Justice of the King’s Bench, Sir Matthew Hale, which persisted in the common law until late last century, even though the majority of rapes are never reported to police, many are not investigated and only three per cent reach a conviction. These beliefs persist in both the culture and practice of the law, long after the community, from whose number jurors are drawn, has shifted in its own beliefs about sexual assault and human conduct.
David Marr in The Guardian writes that legal observers expect Pell will be acquitted. He notes that even the technical arguments made in written submissions require the court to undertake its own assessment of the evidence. As my own research suggests, this assessment is where the unconscious of the law comes into play—all those formally repressed beliefs about how complainants, defendants and institutions are likely to conduct themselves. The members of the High Court may have been insulated from efforts in lower courts to improve the handling of cases involving sexual offences. So I would not be surprised by an acquittal in Pell’s case.
Thus, it’s worth revisiting the epistemic symmetry of guilt and acquittal. A guilty verdict means, as a matter of legal fact, that the accused person did the crime. It has a series of legal consequences that are very concrete indeed. The convict may be taken into custody without their gaolers being liable for wrongful imprisonment. A person or media organisation can publish this fact and not be liable for defamation. In some very hard cases, particularly in death penalty states, courts have acknowledged that suppressed or newly-discovered evidence suggests the convicted person is probably innocent—but if proper legal process has been followed, and no technical deficiency can be found, and no pardon or clemency is granted, the person may still be executed.
Understanding the verdict as a legal fact preserves ‘epistemic humility’—the simple acknowledgment that we weren’t there and we don’t know what happened. The legal standard, beyond reasonable doubt, applies to the judgment of the case made against the accused, not the truth of the event. By striving towards fair and proper process, courts are working to improve the likelihood that guilty verdicts accord with the unknown facts of what happened, but there is no way (short of a time-machine) to guarantee this is the case.
Acquittal has its own legal consequences. The rule against double jeopardy means that another criminal trial cannot be brought on the same charges and the same facts. In the Bowraville case, three young Aboriginal people, Colleen Walker-Craig, Evelyn Greenup and Clinton Speedy-Duroux, were killed over five months in the early 1990s. An acquittal in 1994 for the murder of sixteen-year old Clinton has prevented a second trial for the same murder, and prevented the admission of evidence of the other killings in a 2006 trial for the murder of four-year old Evelyn. Notwithstanding the findings of a second police investigation (1997), a coronial inquest (2004), legislative change (2006), a parliamentary inquiry (2014), a Court of Criminal Appeal judgment (2018) and the agony of the victims’ families and the Aboriginal community, the NSW legal fraternity strongly and successfully opposed a recent proposal to amend legislation to allow a second trial. Acquittal is once and for all.
No doubt the ‘Candle Lighters’ will claim an acquittal is a vindication—proof that Pell did not in fact do what the complainant reported he did. It would certainly mean he could sue for defamation anyone who claimed he was guilty of the crime. A whole lot of books could no longer be sold, or circulated, and once pulped, could perhaps be used to bolster the national toilet paper reserve.
However—and I like big ‘buts’—epistemic humility applies to acquittal, as well. Acquittal does not mean innocence. Acquittal means only that the charges against the accused were not proven in every element beyond reasonable doubt. As Samuel Bray observes, a ‘not guilty’ verdict—at trial—can mean one of two things: the jury thinks he did it, but the case was not proven; or the jury has reached the stronger conclusion that he didn’t do it.Under Scottish law, a jury can declare the accused ‘not guilty’ or ‘not proven’, removing the ambiguity between those two meanings and specifying which one they had in mind. A not guilty verdict results in public records of the arrest and trial being erased completely, while not proven functions as a ’stigmatising acquittal.’ However, Bray’s research found not proven verdicts were most common in cases of sexual assault, where ‘in the public perception there are two trials, one for the accuser and one for the accused.’ The ‘not proven’ verdict ‘frees the jury to acquit without repudiating the accuser’ (Bray 2005, p. 1318).
I am uncomfortable with the idea that the community might be justified in using a ‘not proven’ verdict to infer—quietly, so as not to attract liability for defamation—that the acquittee is nonetheless culpable. In my view, that violates the presumption of innocence and weakens the social value in declaring a single forum, the courts, for assessing responsibility for crimes. On the other hand, when the legal process fails, this task falls to other forums, including further investigation, civil trials, coronial inquests, parliamentary inquiries, and in the last resort, the court of public opinion—which is exactly exactly what has happened in the early days of the #MeToo movement.
For me, the existence of these extra-legal forums points to the way forward. The public prominence of the Pell trial has all but eclipsed the findings of the Royal Commission. Regardless of the verdict, there is much we can do to make those findings concrete and effective. As even the Pell defenders now acknowledge, something happened to those two young men. It took the light out of their teenage lives and completely extinguished the life of one of them.
Soon afterwards, Archbishop Pell established the Melbourne Response, which offered counseling and meagre compensation to survivors of abuse in the church on condition of their silence. Just as we need to strengthen legal responses to survivors of rape, there is much we can do to improve both the safety of religious institutions and social services for young people, and processes of acknowledgement and redress for survivors of abuse.