A view from across the pond

Corteen & Stelle, A Criminal Injustice System? Sex Offender Suspects and Defendants. 39 LIVERPOOL L. REV. 265 (2018).

Abstract The purpose of this paper is to open up a discussion regarding the potential shift from the presumption of innocence to a presumption of guilt regarding those suspected of or charged with sexual offending. It is acknowledged that further investigation is needed and it is hoped that this discussion is one of many. The crux of this paper therefore is that sex offender suspects and defendants potentially find themselves in a criminal injustice system. Whilst the focus is predominantly on ‘victims’ (usually female) and people suspected or charged with sexual offending (usually male) within the criminal justice system in England and Wales the concerns articulated here are not confined to this context. For example such concerns are echoed in relation to the potential injustices occurring on American campuses. This demonstrates that this is a domestic and international situation and a situation that extends beyond the criminal justice system. We argue that what is occurring at home and abroad has to be contextualised with regard to public, media and social attitudes and approaches to ‘victims’, suspects, defendants, sex, sexual consent, sexual offending and a subsequent shift from the presumption of innocence to a presumption of guilt. It is argued that not only is the presumption of innocence undermined by the presumption of guilt regarding suspects and defendants in cases of sexual offending, it is also undermined in England and Wales by the victim personal statement (VPS). The VPS contains and promotes the idea that there is a ‘victim’ and ‘offender’ before this has been legally established in a court of law. These assumptions embodied within the VPS weaken the principle and practice of the presumption of innocence. The safeguard of the presumption of innocence is potentially under threat and the result is an even greater potential for miscarriages of justice and wrongful convictions.

Of course, in the military is worse because of SHARP training, victim centric investigations, along with the ‘believe the victim’ trope.