Investigating sex crimes!
The circumstances surrounding the recent arrest and charge of prominent socialite and former politician Don Creary has pushed a prominent attorney to put pen to paper on the issue of how persons are treated once they are accused of a sexual offence.
The attorney, who asked that his name be withheld, submitted his concerns, and how he believes these matters should be handled to The Sunday Gleaner.
1. When a complaint is made to the police verbally, a decision has to be made if the allegations amount to an offence.
2. If so, a written statement is taken from the complainant by the police, which is signed by the complainant. The accused is then brought in by police from the Centre for the Investigation of Sexual Offences and Child Abuse for a question and answer session. Why then did it take two years for the police to call in Don Creary for questioning? Why did it take the complainant months to report the alleged rape? In the case of Bill Cosby, some took years.
3. An investigation does not have to be done. In fact, evidence may not even be collected at this point. If the accused is charged they should be put before the court without delay.
4. The accused can be taken into custody.
5. The file is submitted to the courts office where it should be reviewed. The case is put on the mention list when it first goes to court (as opposed to the trial list). A case can remain on the mention or trial list for various reasons in the Resident Magistrate's Court.
6. The magistrate will decide if there is a case and if the matter should be upgraded to a preliminary hearing. Most times, the magistrate is not inclined to offer bail on the first appearance, but that has no bearing on the accused's guilt or innocence.
7. Judges are more likely, according to the attorney, to offer bail to the accused as more time passes. Persons can spend months behind bars and end up being acquitted. This process is difficult, especially for persons who are not guilty and the impact on reputation can be devastating.
8. If at the preliminary hearing stage the magistrate in his or her wisdom decides that the allegations have enough bearing for the case to go to trial it is transferred to the Supreme Court.
9. Copies of all the evidence, which the prosecution will use to establish its case against the accused, must be given to the accused directly or to their lawyer.
10. Once the case starts the prosecution calls its witnesses first usually starting with the person who made the complaint and then supporting witnesses. The accused's lawyer is allowed to ask each witness questions (cross-examine).
11. After the prosecution has presented all the witnesses to support its case, it is then the turn of the accused to give evidence and present his/her supporting witnesses to refute the allegations. The prosecutor will be allowed to ask the accused and witnesses of the accused questions.
12. An accused has the right to:
a) Say nothing in their defense
b) Make a statement in court without taking an oath, i.e., swearing on the Bible. In which case they cannot be asked any questions by the prosecutor or
c) Take the oath and be questioned by the prosecutor.
In the end, whether the accused is exonerated or sentenced, the damage would have already been done and the repercussions for the accused's family, friends and loved ones can be insurmountable.
Across the world, people are more likely to believe the bad versus the good about others, so cases like these are sometimes a losing battle in the public eye. It is hoped that justice will prevail in all these matters and that the ease with which persons can make a sexual offence claim will not be abused.