"The Decision" is a short story I wrote for a competition — which incidentally it won — that may nevertheless contain some points of interest to libertarians. In it a jury of twelve men and women have to make a difficult decision in a rape case, in what the careful reader will perceive is not quite present-day England, but is only a few small hops sideways in time. They end up deciding to make no decision at all; that is, they decide that the evidence is simply insufficient for them to decide what actually happened; they render a verdict vis-à-vis both parties of not proven. This isn't just chickening out; it's the just decision.

One of the weak points of our system of justice is its reliance upon only two verdicts: guilty and not guilty. Implicit in this is the belief or assumption that fair judgement can always be rendered, that the court can always determine the truth. But of course it can't. Very often there isn't anything like enough evidence one way or the other; or there's lots of conflicting evidence but we can only guess which set is the more reliable. Courts should be like scientists, not afraid to say "we don't know!" and ever ready to admit that the data are inconclusive. Even the wisdom of a Solomon is not infallible (he'd have looked a right idiot if both women had agreed to chopping the baby in half).

The principle innocent until proven guilty is an attempt to get around this problem, but it's all too easily overlooked, perverted or forgotten — and anyway it's a fudge. Most acquitted defendants are actually guilty — we all know this. We recognise it, in ordinary conversation, when instead of saying they were found not guilty, we say they "got off". Once upon a time a Scottish jury, with more nouse than the average, realised this and rendered a principled verdict of not proven. They didn't know whether he'd done it or not — and they said so. To this day the not proven verdict is accepted in Scottish courts, though it is treated as identical in law to a verdict of not guilty.

It is clear that for most purposes not proven must have the same effect in law as not guilty. Certainly it must not attract any judicial penalty. Nevertheless, its regular use would have several beneficial aspects. It would underline the inevitable fallibility of the courts, without bringing the law into disrepute by promoting standards of jurisprudential perfection that cannot be maintained. It would encourage the impartial treatment of evidence nowadays more common in science than in the courts. And it would permit the unequivocal exoneration of truly innocent defendants, who today can seldom entirely live down the calumny of a false indictment: "There's no smoke without fire!" they say.

However, the lack of a meaningful not proven verdict is today also instrumental in the rise of a new and gross injustice in the treatment of cases of rape, sexual harassment, marital violence, child abuse and the like. Increasingly, these are being tried as if they were mere civil disputes; that is, as if all that counts is whether the jury is more inclined to believe the accuser or the accused. Increasingly, defendants are being found guilty without proof, that is, without being proved guilty beyond reasonable doubt. Lack of hard evidence is being ignored.

Part of the problem is that juries are not being instructed that accusation is not evidence. Indeed, the media are continually telling them exactly the opposite. Lawyers and judges too have conveniently forgotten it. To point out that a woman who cries rape may be lying is politically incorrect. To remark that not all children are angels is to call down wrath from on high. To imply that a feminist complainant may be motivated by malice is to risk vehement excoriation (oh, look it up!).

As a matter of course, all such cases should be presented in the form of charge and counter-charge; that is, not only should the accused be indicted for the alleged offence, but the accuser should also automatically face an indictment of false and malicious accusation. Jeopardy should be a two way street. That is how the matter was treated in my story. Unfortunately, at present it is possible to bring such an accusation with little or no risk. Occasionally, a "frivolous" complaint may invite a charge of "wasting police time", but this is a minor matter; a charge of perjury, which would be more serious, is seldom brought.

We need to understand the gravity of false accusation. It is not venial or trivial. It is a crime equal in enormity with the offence alleged to have been committed. Look at it this way. The sentence for rape (or any other crime) is in some sense equivalent to the crime itself. So the wrongful imposition of such a sentence is also equivalent to that crime. If falsely accusing someone of a crime puts him in danger of a ten year prison sentence, say, then upon conviction the false accuser should also face ten years in prison (assuming similar probabilities of conviction).

In effect, malicious accusation is merely a variant upon the basic offence, rather like being an accessory before, during or after the fact, aiding and abetting the commission of the offence, conspiring to commit the offence, and inciting to commit the offence. We can even imagine second and third order variants; for example, being an accessory to a false accusation of incitement . . .

Where we have charge and counter-charge in this way there are nine possible verdicts, of which three are easily understood (A guilty, B not guilty; A not guilty, B guilty; A & B not proven); the remaining six may be appropriate in exceptional circumstances (eg. A & B not guilty — it was all a misunderstanding).

Suppose that Abishag (that's a real name!) accuses Bartholomew of rape. It's her word against his. Case not proven. Nobody goes to gaol, but Abishag has to pay costs for both of them (serves her right for bringing a case without evidence). She brings incontrovertible proof of sexual congress. Still no good; he says, sure we had sex but she agreed to it. She supplies proof it was rape — say, the tape from a security camera. Bartholomew is guilty. He pays costs and goes to gaol. Abishag is cleared and goes free. Aha! but what if Bartholomew can prove she faked the tape? Now it's the other way round. Abishag is adjudged guilty, pays costs and goes to gaol. He goes free.

With restitutional justice we can do rather better. Instead of gaol, the penalty is a fine, so the victims of both rape and false accusation can now be compensated. Let's assume that rape has a monetary equivalent of say £100,000 (in reality, there is rape of varying degrees of severity). If Abishag is not guilty she gets £100,000 plus costs. If Bartholomew is not guilty he gets £100,000 plus costs (remember, he's just as much a potential victim as his accuser). If the case is not proven, both of them get £100,000 plus costs. This money comes firstly from the court's own coffers, but in the long run it must be extracted from convicted defendants. If either Abishag or Bartholomew is found guilty the fine is the £100,000 (plus costs) multiplied by the improbability of conviction, though if they plead guilty up front they only have to pay the straight £100,000 (plus costs).

That may be a little difficult to grasp. The point is that rapists will on average have to pay £100,000 per rape; and false accusers will on average have to pay £100,000 per false accusation. In other words, you need have no fear appealing to the courts if you're honest, even if it proves impossible to determine the actual truth in your particular case. It all comes right in the end.

How far we are from such justice today! The perversion of the legal system by political power is actually encouraging the growth of false accusation; the accused are stripped of their rights, while malicious accusers are not penalised but protected. If only more juries had the honesty and courage of the jury in my story — to strike a blow for justice and for freedom!

© Paul Birch, 11th Jan. 1998.

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