The Labour Party, the main opposition political party in New Zealand, made headlines last week when it announced its proposed policy for trying people accused of rape. According to the party’s justice spokesman, Andrew Little, the party is proposing that the burden of proof be reversed in rape trials. In other words, people accused of rape would have to prove their innocence.
It is quite astonishing that any mainstream party in a Western democracy could actually entertain the idea of eliminating, even in one instance, the presumption of innocence. That presumption, which demands that the government never treat a citizen as a criminal until it has proven beyond a reasonable doubt that they have actually committed the crime, is the Golden Thread binding together the whole of the Anglo-American criminal justice tradition. It is enshrined across laws and constitutions, and is even recognized in the United Nations Declaration of Human Rights.
The government’s first role is the upholding of the law and the protecting of its citizens. That is fundamentally impossible if the government can brand citizens as criminals unless they can directly prove otherwise. The policy of the Labour Party, should it be implemented, represents a death knell to the legal protections citizens have come to expect and fundamentally deserve.
The avowed justification for the change in the case of rape is the indisputable fact that it is very hard to convict anyone of rape. It is true that convictions are difficult to achieve on a forensic level. It is also hard for people who have been raped to come forward at all, due to very real social pressures not to speak out, and the frequent tendency of societies to engage in victim-blaming. These are truly tragic problems, ones that are probably not addressed nearly enough by governments around the world. Rape is a horrific crime, and the victims of it are frequently scarred for life. The violation of one’s self in that way is one of the most grotesque that can be experienced. Governments the world over have done too little to address the problem.
But the underlying problem does not call for simply lowering the bar of what it takes to convict someone of the crime, and it certainly does not call for reversing the burden of evidence that is instantiated across the laws of all countries with British common law traditions. The Labour Party is groping blindly for a solution that will paper over social factors currently hampering investigations. The advocates of this policy are seeking a blunt tool by which to redress a clear injustice. But answering injustice with another terrible injustice is not the way forward.
It would be naive to assume that a policy of reversing the burden of consent in cases of rape would stop there. When the fundamental relationship between citizen and state in the investigation and prosecution of transgressions is shifted, even in one instance, it changes the relationship across the board. If underlying difficulties in enforcement of rape prosecutions is justification to reverse the burden of proof, why not do the same for other difficult-to-prosecute crimes? Where would it end?
Some pundits say slippery slope arguments are invalid, but they are unquestionably wrong in this case. The policy proposal of the Labour Party would permanently and irrevocably transform the entirety of the legal system. It might just take a few years for the case-law to accrete before people notice.
The Labour Party is not currently in power to act on this policy, and it would likely face substantial legal challenges in the courts were it to do so. But it is reflective of a dangerous strain in left wing political ideology that seeks to outright reject many of the sacred institutions of personal liberty and limited government to serve their myopic conceptualization of justice. When a position attacking a venerated precept like the presumption of innocence as a tool of the “patriarchy” to oppress women is met with anything but instant ridicule, there is a problem.
Rape, and all non-consensual violence, is monstrous and unambiguously evil. But a government demanding that citizens prove their innocence of a crime is also unambiguously evil.