I'm Cthulhu

In The News

The danger of reversing the burden of proof

by
No Comments on The danger of reversing the burden of proof

Recently in the news there is a growing trend of sexual offence related articles and in fact we have seen new legal guidance issued on the handling of alleged rape/sexual offences. While I thoroughly agree that more needs to be done to tackle unreported incidents of sexual abuse and rape, the populist tone is now shifting this to an extremely dangerous path in the justice system.

Let us take some data published by The Guardian in 2013. It states the following data:

78,000 estimated rapes
15,670 reported to the police
3,850 are “detected” by way of being charged or handed an out-of-court disposal
2,910 face court proceedings
1,070 people were convicted at court

Now this information pretty much lines up with the information used by various women’s rights groups and groups who work in organisations supporting rape victims. I thoroughly support the work these groups are doing, and although I cannot say from personal experience how well they work, I can only imagine they do serve as a great support to victims of abuse. However, in light of the new guidance being issued, we must be very careful about how such data may be abused or misinterpreted.

Let us take the figure above and simplify them to the following:

Only 1 in 5 victims reports the incident to police

I feel this figure is quite safe to take as it is close to what Rape Crisis report in their figures.

Without prejudice, I feel this question must be considered; are women as likely to make a false accusation of rape as men are to commit a rape? Given this, we must weigh the factors that could lead a false allegation to be reported which include monetary compensation, tarnishing the reputation of the male accused and garnering sympathy from friends/family.

Let’s go with the idea that women are as likely to make a false allegation of rape as a man is to rape a woman. Using the above figures, that means for every 1 in 5 actual rape victims; there will be five false allegations made (since for a false allegation to be made it must be recorded). So 1 in 6 reports to police are real allegations, with 5 in 6 being false accusations.

This means of the 15,670 reports to police; only 2,612 are real.

Let’s change the figures and assume a man is five times more likely to rape a woman as a woman is likely to make a false allegation.

This still equates to 50% of all allegations made are false.

I do not know the true distribution of true to a false allegation. But I would guess they are about equal simply because of the incentives on offer to unscrupulous women vs men who actually commit a rape offence. Both of the above would be a crime and in the interest of not prejudicing either sex, making them equal is a neutral assumption.

Even erring on the side of caution, I believe the new guidance issued poses a very serious judicial problem where the interests of justice will not be served. If men have to prove consent was given, what of those thousands who may be falsely accused? Even if not convicted in court, it is well known a social stigma will follow, and the arrest for the offence still goes on their criminal record. Once the burden of proof is shifted to the defendant, it makes the accused guilty until proven innocent.

To demonstrate why this is dangerous, let me illustrate how this principle may apply in reverse. Let us assume every report of rape which reaches trial is true, and so the 2,910 of cases that arrive at trial are true reports of rape against a woman. Of these, 1,070 people are convicted of the offence. As the case is reversed, we then notice 1,840 of the charged individuals were found not guilty. If the burden of proof were shifted to the defendant, what if all of those found not guilty made a report of falsely reporting them to the police? Then the burden of proof lay upon the original reporter to show a rape had been committed? In reference to the prior trial and the male charged being found not guilty, this is of course a ludicrous position to arrive at but under the double jeopardy principle, the individual could not be tried again for the same alleged offence. But if the role were reversed, that means for every 1,070 males convicted of an actual rape, 1,840 women would possibly also be convicted for falsely accusing a male of a rape that actually occurred.

That would mean a woman would be more likely to be convicted for reporting the crime than the perpetrator of the crime itself. This isn’t even including the reports that do not arrive at trial.

To summarise my point here, although I have provided some crude examples and figures, the most important thing to take away is this; justice is never served by reversing the burden of proof. Shifting that responsibility to the defending party may achieve more convictions. But the convictions achieved under that reversal do not mean the conviction is true. This principle applies to every aspect of a good justice system and is why we should embrace the principle of innocence until proven guilty.

Is it just to have a system appeal to our credulity and not to our skepticism on the guilt of people?

Encryption, In The News

The Prime Minister Wants To Ban Encryption?

by
No Comments on The Prime Minister Wants To Ban Encryption?

This week, the UK’s Prime Minister, David Cameron, has suggested that there should be “not means of communication [which] we cannot read”. Now of course it would be easy to see the obvious consequences of such a measure, ranging from making the UK a prime hacking target for foreign attackers to possibly driving out the tech industry from our economy. That is before I even begin to elaborate on why such a measure is against the very fabric of the “modern liberal democracy” he purports to represent.

 

However, I would first like to draw the attention of everybody to a specific phrase he used when asked to clarify what the legislation would possibly entail. In reply, he expressed the need for “more modern forms of communication” to be allowed in the UK and to be covered by such legislation. This term, I would assume, is concerning smartphone apps (a commonly cited example would be WhatsApp and iMessage) as opposed to traditional messages in SMS form and plain text emails. Speaking as somebody who has been under surveillance (and still is), I know the concern over such “encrypted communications” is certainly not a problem to handle under existing legislation. In successive raids, I have had phones searched, “data storage mediums” seized and been subject to questioning over my activities. The one common factor, they never seem to have a problem with, is searching my phone. As an iPhone user, I expect no privacy on the device and to me it is much more for checking my Twitter account on the move, taking photos, reading the news and so forth. I have no email accounts tied to it and I certainly would never enter any private information into a device I know can be easily compromised either locally or remotely. Therefore, I can only deduce if the Prime Minister was concerned about terrorists using WhatsApp or iMessage, existing legislation (requiring a court signed warrant) would cover the scenario. Resorting to compromising the privacy of everyone using such networks in the name of “security” has nothing to do with combatting terrorism, but enabling mass surveillance.

 

Then we come to how “banning encryption” would be practical. I run a series of Tor exit relays, for example, but they are based in the Netherlands and Sweden. If I am under any obligation to provide information, that will mean logging the data passing through my exits to the servers/websites being visited. Yet this information alone is not very useful since the majority of traffic will be encrypted using TLS and what plaintext information is recorded, will be that of primarily foreign citizens to the UK. This information would not even be traceable back to the original owner in any case. The design of the Tor network prevents any one group [or individual] being able to correlate the users of the network to a particular packet of traffic leaving the exits. Furthermore, as all of the maintainers of Tor are based outside the UK, UK law would not apply to them or the product, meaning the software could not be forcibly backdoored anyhow.

 

This leaves the government with a few options; to disregard the legislation and the idea of banning encryption, or to set up the Great Firewall of Airstrip One [2]. Considering the successive assaults on access to the open internet by the UK government, if such power is granted to the security services and police force, I fear for my country. I fear we will raise the next generation with no expectation of privacy and grow up in the knowledge everything done is recorded, reviewed and held on their permanent records. In that knowledge, what are we to teach about risk and exploratory behaviour? Risk is inherent in everything great and when fear holds back those who we shall inherit our world, can we expect them to build upon what we have built?