tag:theconversation.com,2011:/id/topics/court-system-7872/articlesCourt system – The Conversation2022-12-15T09:38:03Ztag:theconversation.com,2011:article/1956792022-12-15T09:38:03Z2022-12-15T09:38:03ZCameroon’s Anglophone crisis: how the common law court offers a ray of hope<figure><img src="https://images.theconversation.com/files/500980/original/file-20221214-11-4jpt5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A lawyer in front of a Yaounde court</span> <span class="attribution"><span class="source">Reinnier Kaze/AFP via Getty Images</span></span></figcaption></figure><p>Six years on, the crisis in the Anglophone (English-speaking) regions of Cameroon continues. <a href="https://www.hrw.org/news/2022/08/11/cameroon-army-killings-disappearances-north-west-region#:%7E:text=The%20violence%20has%20caused%20about,to%20become%20refugees%20in%20Nigeria.">Recent reports</a> indicate that over 6,000 people have been killed. </p>
<p>A further 600,000 have been internally displaced, while over 7,700 people have become refugees in neighbouring Nigeria. </p>
<p>The conflict’s <a href="https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-022-00114-1">origins</a> lie partly in the fact that Cameroon applies two different systems of law. Anglophone lawyers say the system marginalises the common law.</p>
<p><a href="https://theconversation.com/why-international-players-have-a-duty-to-help-the-search-for-peace-in-cameroon-142012">Cameroon was colonised</a> by Great Britain and France, which occupied 20% and 80% of the territory respectively. They <a href="https://theconversation.com/cameroon-how-language-plunged-a-country-into-deadly-conflict-with-no-end-in-sight-179027">introduced both their language</a> and their legal traditions in their respective spheres of influence. </p>
<p>So, the Anglophone regions apply the common law. The Francophone regions apply the civil law. </p>
<p>In Cameroon, the common law and the English language have been <a href="https://theconversation.com/what-it-would-take-to-break-the-impasse-in-cameroons-deadly-crisis-122134">systemically undermined</a> by the <a href="https://theconversation.com/history-explains-why-cameroon-is-at-war-with-itself-over-language-and-culture-85401">predominantly Francophone government</a>. At the level of the Supreme Court, the predominant application of the civil law often left common law litigants without justice. </p>
<p>In October 2016, <a href="https://theconversation.com/cameroon-how-language-plunged-a-country-into-deadly-conflict-with-no-end-in-sight-179027">a peaceful protest over this by Anglophone lawyers</a> was met with <a href="https://saisreview.sais.jhu.edu/cameroon-anglophone-crisis-global-response/">disproportionate force</a> from the government. </p>
<p>By early 2017 the protests had become a violent separatist conflict. The government tried to address some of the concerns by creating the <a href="https://cameroon-tribune.cm/article.html/9799/en.html/supreme-court-common-law-division-soon.">Common Law Division</a> within the <a href="http://www.minjustice.gov.cm/index.php/fr/2-non-categorise/3-cour-supreme">Supreme Court</a>. The division is meant to hear final appeals from courts in the Anglophone regions in matters relating to the common law. </p>
<p>The <a href="https://www.prc.cm/en/news/the-acts/laws/2360-law-no-2017-014-of-12-july-2017-to-amend-and-supplement-some-provisions-of-law-no-2006-16-of-29-december-to-lay-down-the-organization-and-functioning-of-the-supreme-court">law states</a> that judges in the Common Law Division should have an “Anglo-Saxon” legal background. By implication, they should understand the common law principles and should speak English. </p>
<p>As part of an ongoing <a href="https://www.dmu.ac.uk/research/centres-institutes/iljs/projects.aspx">project</a> on judicial institutions and conflict resolution, we carried out <a href="https://www.thebritishacademy.ac.uk/projects/humanities-social-sciences-tackling-global-challenges-reconstructing-judicial-institutions-for-conflict-transformation/">a study</a> of the Common Law Division between July 2021 and February 2022. </p>
<p>We examined records from the registry of the Courts of Appeal in the Anglophone regions and the Common Law Division. We also interviewed 32 Anglophone lawyers and Supreme Court judges. </p>
<p>The purpose was to assess how the Common Law Division was addressing the concerns raised about the limited influence of the common law in the Supreme Court. </p>
<p>Below are some of the <a href="https://dora.dmu.ac.uk/bitstream/handle/2086/22333/PoliCy%20Brief%20-%20The%20Common%20Law%20Division%20of%20the%20Supreme%20Court%20of%20Cameroon.docx?sequence=1&isAllowed=y">key findings</a> which we discuss further in our <a href="https://dora.dmu.ac.uk/handle/2086/22333">report</a>.</p>
<h2>Performance of the Common Law Division</h2>
<p>The Common Law Division began functioning fully in 2018. As of <a href="https://dora.dmu.ac.uk/handle/2086/22333">September 2022</a>, it had received 450 cases, 200 of which were appeals made directly from the Anglophone regions. </p>
<p>The other 250 were appeals that were pending in other divisions of the Supreme Court before the Common Law Division was established. The cases were predominantly civil and criminal matters. </p>
<p>The Common Law Division has made final decisions in 125 cases. In a further 178 cases, it has decided on admissibility – whether claims can be heard. </p>
<p>That is due partly to concerted efforts by the judges to deal with cases in a timely manner.</p>
<p>In the past, as we uncovered in our <a href="https://dora.dmu.ac.uk/handle/2086/22333">study</a>, appeals from the Anglophone regions could remain in the Supreme Court without a decision for up to 34 years. One reason was that French-speaking civil law judges could not hear the appeals. Submissions were written in English and based on common law principles which they did not understand. </p>
<p>The common law and civil law systems are quite distinct in legal practices, principles and procedures. For instance, the common law is developed by judicial precedent. This is a legal principle which requires lower courts to follow the decision made by a higher court, when hearing a later case with similar facts. The civil law depends on codified law (legal texts). </p>
<p>Another difference is that, in the common law, submission of arguments in court is generally oral. This gives the court the opportunity to seek clarification, before it considers the matter and makes a decision. In the civil law system, submissions are written in full and provide limited room for oral debate.</p>
<h2>Cautiously optimistic</h2>
<p>The lawyers are cautiously optimistic about the Common Law Division. The majority have more confidence in making appeals to it because their submissions are written in English and are based on common law principles applied in the Anglophone regions. They know their cases are heard by judges who understand the law and the language. </p>
<p>The judgements are also written in English, mostly in the common law style of setting out the facts, the applicable law and the reasoning of the court. </p>
<p>This is important because judicial precedent cannot be influential if the court does not provide reasons for its decisions. </p>
<h2>Challenges</h2>
<p>Despite the successes registered so far, the Common Law Division still faces a number of challenges. </p>
<p>Foremost is the issue of procedure. The division applies civil law procedures especially in the key area of admissibility. This is because the <a href="http://www.minjustice.gov.cm/index.php?option=com_content&view=article&id=177%3A2018-06-18-11-25-32&catid=1&Itemid=46&lang=en">2006 Supreme Court Law</a> lays out the procedure to be applied throughout the Supreme Court. </p>
<p>According to the lawyers, submitting an appeal following civil law procedures is legalistic and technical. Moreover, civil law procedures are not particularly consistent with common law procedures. So, appeals tend to be dismissed at the admissibility stage for technical reasons. Lawyers say this undermines justice for their clients. In the common law, they say, such technicalities would not prevent a court from hearing a case.</p>
<p>Another important concern raised is that the Common Law Division is still under the Judicial Bench of the Supreme Court. This has a number of unfavourable consequences. </p>
<p>First, the division cannot develop the common law sufficiently if it continues to rely on the Judicial Bench, which is civil law oriented. </p>
<p>Second, the division’s broad jurisdiction means it needs a lot of financial and other resources – almost as much as a bench itself.</p>
<p>Third, as a result of the limited resources, Francophone judges may be appointed to the division to alleviate the pressure on the Anglophone judges. That would defeat the purpose of creating the Common Law Division. </p>
<h2>What should the government do?</h2>
<p>From our research and considering the views expressed by Anglophone lawyers and judges in the study, three recommendations stand out.</p>
<ol>
<li><p>Elevating the Common Law Division to a Common Law Bench. That would require a constitutional amendment.</p></li>
<li><p>Amending the Supreme Court Law of 2006 so that common law procedures can be applied in the Common Law Division. </p></li>
<li><p>Appointing more common law trained judges to the Common Law Division to alleviate the pressure on existing judges. </p></li>
</ol>
<p>The government should consider the above recommendations as part of the approach to resolving the conflict. </p>
<p><em>Ashu Eware, State Prosecutor of the High Court of Manyu Division, Cameroon contributed to this article.</em></p><img src="https://counter.theconversation.com/content/195679/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura-Stella Enonchong and Ashu Eware receive funding from The British Academy. </span></em></p>The common law and civil law systems are quite distinct in legal practices, principles and procedures. How government manages the difference has implications for the Cameroon Anglophone crisis.Laura-Stella Enonchong, Senior Lecturer in Law, De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1596202021-07-06T18:56:25Z2021-07-06T18:56:25ZShould the Supreme Court have term limits?<figure><img src="https://images.theconversation.com/files/408261/original/file-20210624-19-t5rjcp.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5656%2C3756&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lifetime tenure has pushed the average age of judicial nominees down as presidents appoint younger justices in hopes they will serve for many decades. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/associate-justice-samuel-alito-associate-justice-clarence-news-photo/1232482584?adppopup=true">Erin Schaff/Pool/AFP via Getty Images </a></span></figcaption></figure><p>Pressure on Supreme Court Justice <a href="https://www.nytimes.com/2021/03/15/opinion/stephen-breyer-supreme-court.html">Stephen Breyer to step down</a> will likely grow now that the court’s session has ended. </p>
<p>Breyer, 82, joined the court in 1994. His retirement would <a href="https://www.bostonglobe.com/2021/03/28/opinion/it-might-be-time-stephen-breyer-retire-supreme-court/">allow President Joe Biden to nominate his successor</a> and give Democrats another liberal justice, if confirmed.</p>
<p>Supreme Court justices in the U.S. enjoy life tenure. Under <a href="https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45">Article 3 of the Constitution</a>, justices cannot be forced out of office against their will, barring impeachment. This provision, which followed the <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">precedent of Great Britain</a>, is meant to ensure judicial independence, allowing judges to render decisions based on their best understandings of the law – free from political, social and electoral influences.</p>
<p>Our extensive research on the Supreme Court shows life tenure, while well-intended, has had unforeseen consequences. It skews how the <a href="https://www.cambridge.org/core/books/supreme-court-confirmation-hearings-and-constitutional-change/5294A199815AA35235FD64AB04FC7E4D">confirmation process</a> and <a href="https://www.sup.org/books/title/?id=22199">judicial</a> <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195372144.001.0001/acprof-9780195372144">decision-making</a> work, and causes justices who want to retire to <a href="https://www.sunypress.edu/p-3721-deciding-to-leave.aspx">behave like political operatives</a>. </p>
<h2>Problems with lifetime tenure</h2>
<p>Life tenure has motivated presidents to pick <a href="https://qz.com/1324841/brett-kavanaughs-age-at-53-means-that-he-may-wield-influence-on-the-supreme-court-for-a-very-long-time/#:%7E:text=That's%20about%20where%20it%20was,the%20court%20was%20around%2053.">younger and younger</a> justices. </p>
<p>In the post-World War II era, presidents generally forgo appointing jurists in their 60s, who would bring <a href="https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges">a great deal of experience</a>, and instead nominate judges in their 40s or 50s, who could serve on the court for many decades. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Ruth Bader Ginsburg in 2005." src="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1003&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1003&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1003&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1260&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1260&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1260&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Ruth Bader Ginsburg.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-justice-ruth-bader-ginsburg-watches-president-news-photo/525578128?adppopup=true">Brooks Kraft LLC/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>And <a href="https://www.pewresearch.org/fact-tank/2017/02/08/younger-supreme-court-appointees-stay-on-the-bench-longer-but-there-are-plenty-of-exceptions/">they do</a>. Justice <a href="https://www.washingtonpost.com/archive/politics/1991/07/02/bush-picks-thomas-for-supreme-court/943b9fda-e079-405e-974e-14c2d0cd999b/">Clarence Thomas was appointed</a> by President George H.W. Bush at age 43 in 1991 and <a href="https://www.nytimes.com/1993/11/27/us/2-years-after-his-bruising-hearing-justice-thomas-can-rarely-be-heard.html">famously said</a> he would serve for 43 years. There’s another 13 years until his promise is met. </p>
<p>The court’s newest member, Donald Trump’s nominee Amy Coney Barrett, was <a href="https://www.usnews.com/news/elections/articles/2020-10-28/amy-coney-barrett-and-the-makeup-of-the-courts">48 when she took her seat</a> in late 2020 after the <a href="https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html">death of 87-year-old Justice Ruth Bader Ginsburg</a>.</p>
<p>Ginsburg, a Clinton appointee who joined the court at age 60 in 1993, refused to retire. When liberals pressed her to step down during the presidency of Democrat Barack Obama to ensure a like-minded replacement, <a href="https://www.reuters.com/article/us-usa-court-ginsburg/u-s-justice-ginsburg-hits-back-at-liberals-who-want-her-to-retire-idUSKBN0G12V020140801">she protested</a>: “So tell me who the president could have nominated this spring that you would rather see on the court than me?” </p>
<h2>Partisanship problems</h2>
<p>Justices change during their decades on the bench, <a href="https://upload.wikimedia.org/wikipedia/commons/c/c6/Graph_of_Martin-Quinn_Scores_of_Supreme_Court_Justices_1937-Now.png">research shows</a>. </p>
<p>Justices who at the time of their confirmation espoused views that reflected the general public, the Senate and the president who appointed them tend to <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1113&context=nulr_online">move away</a> <a href="https://journals.sagepub.com/doi/abs/10.1177/106591290005300306">from those preferences</a> over time. They become <a href="https://doi.org/10.1017/s002238160808081x">more ideological</a>, focused on putting their own <a href="https://www.cambridge.org/core/books/supreme-court-and-the-attitudinal-model-revisited/5982FCCD061EB38DBB870DBC5E9A3197">policy preferences</a> into law. <a href="https://mqscores.lsa.umich.edu/">For example</a>, Ginsburg grew more liberal over time, while Thomas has become more conservative. </p>
<p>Other Americans’ <a href="https://www.journals.uchicago.edu/doi/abs/10.1086/706889">political preferences</a> tend to be stable throughout their lives. </p>
<p>The consequence is that Supreme Court justices may no longer reflect the America they preside over. This can be problematic. If the court were to routinely stray too far from the public’s values, <a href="https://www.washingtonpost.com/politics/2020/10/23/why-americans-are-perfectly-willing-undermine-integrity-independence-supreme-court/">the public could reject</a> its dictates. The Supreme Court relies on public confidence to <a href="https://doi.org/10.2307/2111585">maintain its legitimacy</a>.</p>
<p>Life tenure has also turned staffing the Supreme Court into an increasingly <a href="https://www.pbs.org/newshour/nation/is-the-hyper-partisan-supreme-court-confirmation-process-the-new-normal">partisan process</a>, politicizing one of the <a href="https://www.jstor.org/stable/25791761">nation’s most powerful institutions</a>.</p>
<p>In the 1980s and 1990s, Supreme Court nominees could generally expect large, bipartisan <a href="https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm">support in the Senate</a>. Today, judicial confirmation votes are almost <a href="https://www.pewresearch.org/fact-tank/2018/03/07/federal-judicial-picks-have-become-more-contentious-and-trumps-are-no-exception/">strictly down party lines</a>. Public support for judicial nominees also shows <a href="https://news.gallup.com/poll/322232/amy-coney-barrett-seated-supreme-court.aspx">large differences</a> between Democrats and Republicans.</p>
<p>Life tenure can turn supposedly independent judges into <a href="https://www.latimes.com/opinion/op-ed/la-oe-ward-kennedy-retirement-20180629-story.html">political players</a> who <a href="https://www.tristatehomepage.com/news/justice-ginsburgs-fervent-last-wish-was-to-not-be-replaced-until-a-new-president-is-installed-report-says/">attempt to time their departures</a> to secure their <a href="https://www.nytimes.com/2020/09/21/magazine/ginsburg-successor-obama.html">preferred successors</a>, as Justice Anthony Kennedy did in 2018. Trump appointed Brett Kavanaugh, one of Kennedy’s <a href="https://www.washingtonpost.com/politics/courts_law/justice-kennedy-asked-trump-to-put-kavanaugh-on-supreme-court-list-book-says/2019/11/21/3495f684-0b0f-11ea-8397-a955cd542d00_story.html">former clerks</a>, to replace him.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Anthony Kennedy is presented a medal." src="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Anthony Kennedy receiving the 2019 Liberty Medal from Justice Neil Gorsuch.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/retired-supreme-court-justice-anthony-kennedy-is-presented-news-photo/1178587667?adppopup=true">William Thomas Cain/Getty Images</a></span>
</figcaption>
</figure>
<h2>The proposed solution</h2>
<p>Many <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">Supreme Court</a> <a href="https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2009%2F02%2Fjudiciary-act-of-2009.do">experts</a> have coalesced around a <a href="https://www.amacad.org/sites/default/files/publication/downloads/2020-Democratic-Citizenship_Our-Common-Purpose_0.pdf">solution</a> to these problems: <a href="https://fixthecourt.com/fix/term-limits/">staggered, 18-year terms</a> with a <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/23/why-not-limit-neil-gorsuch-and-all-supreme-court-justices-to-18-year-terms/">vacancy automatically occurring</a> every two years <a href="https://www.theatlantic.com/politics/archive/2014/05/its-time-for-term-limits-for-the-supreme-court/371415/">in nonelection years</a>. </p>
<p>This system would promote <a href="https://www.brennancenter.org/our-work/analysis-opinion/saving-supreme-court">judicial legitimacy</a>, they argue, by taking departure decisions <a href="https://www.cnn.com/2019/03/20/politics/sandra-day-oconnor-supreme-court-evan-thomas-book">out of the justices’ hands</a>. It would help insulate the court from becoming a <a href="https://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html">campaign issue</a> because <a href="https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now">vacancies would no longer arise</a> during election years. And it would <a href="https://www.reuters.com/article/us-usa-court-termlimits/democrats-prepare-bill-limiting-u-s-supreme-court-justice-terms-to-18-years-idUSKCN26F3L3">preserve judicial independence</a> by shielding the court from political calls to fundamentally alter the institution. </p>
<p>Partisanship would still tinge the selection and confirmation of judges by the president and Senate, however, and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms. </p>
<p>The U.S. Supreme Court is one of the world’s few high courts to have life tenure. <a href="https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198810230.001.0001/oxfordhb-9780198810230-e-39">Almost all democratic nations</a> have either <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">fixed terms or mandatory retirement ages</a> for their top judges. Foreign courts have encountered <a href="https://academic.oup.com/ojls/article-abstract/35/4/627/2472456?redirectedFrom=fulltext">few problems</a> with term limits. </p>
<p>Even England – the country on which the U.S. model is based – no longer grants its Supreme Court justices life tenure. They <a href="https://www.supremecourt.uk/docs/scotus-and-uksc-comparative-learning-tool.pdf">must now retire</a> at 70. </p>
<p>Similarly, although many U.S. states initially granted their supreme court judges life tenure, <a href="http://www.judicialselection.us/uploads/documents/Berkson_1196091951709.pdf">this changed</a> during the Jacksonian era of the 1810s to 1840s when states sought to increase the accountability of the judicial branch. Today, only supreme court judges in <a href="https://www.providencejournal.com/news/20200118/changes-ahead-for-ris-aging-supreme-court">Rhode Island</a> have life tenure. All other states either have <a href="https://www.ncsc.org/information-and-resources/trending-topics/trending-topics-landing-pg/mandatory-judicial-retirement">mandatory retirement ages</a> or let voters choose when judges leave the bench through <a href="https://www.routledge.com/Judicial-Elections-in-the-21st-Century/Bonneau-Hall/p/book/9781138185890">judicial elections</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The Supreme Court of the United States, 1894." src="https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=506&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=506&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=506&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=636&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=636&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408273/original/file-20210624-23-vr7vu1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=636&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Back in 1894, the Supreme Court was older – not to mention whiter and all male.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-supreme-court-of-the-united-states-including-justices-news-photo/640485281?adppopup=true">C.M. Bell/Library of Congress/Corbis/VCG via Getty Images</a></span>
</figcaption>
</figure>
<p>Polling consistently shows <a href="https://www.reuters.com/article/us-usa-court-poll/americans-favor-supreme-court-term-limits-reuters-ipsos-poll-idUSKCN0PU09820150720">a large bipartisan</a> <a href="https://www.reuters.com/business/legal/most-americans-want-end-lifetime-supreme-court-appointments-2021-04-18/">majority</a> of Americans support ending life tenure. This likely reflects <a href="https://fivethirtyeight.com/features/why-the-supreme-courts-reputation-is-at-stake/">eroding public confidence</a> as the court routinely issues <a href="https://slate.com/news-and-politics/2020/03/kansas-v-garcia-scotus-ideological-splits.html">decisions down partisan lines</a> on the day’s most controversial issues. Although ideology has <a href="https://press.princeton.edu/books/hardcover/9780691175522/ideology-in-the-supreme-court">long influenced</a> Supreme Court decisions, today’s court is <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/06/29/it-took-conservatives-50-years-to-get-a-reliable-majority-on-the-supreme-court-here-are-3-reasons-why/">unusual</a> because all the conservative justices are Republicans and all the liberal justices are Democrats.</p>
<p>In April 2021, President Biden <a href="https://www.nytimes.com/2021/04/15/us/politics/supreme-court-commission.html">formed a committee</a> to examine <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/">reforming the Supreme Court</a>, including term-limiting justices. <a href="https://crsreports.congress.gov/product/pdf/R/R46731">To end the justices’ life tenure</a> would likely mean a constitutional amendment requiring approval from two-thirds of both houses of Congress and three-fourths of U.S. states. </p>
<p>Ultimately, Congress, the states and the public they represent will decide whether the country’s centuries-old lifetime tenure system still serves the needs of the American people.</p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p><img src="https://counter.theconversation.com/content/159620/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Unlike in most countries, US Supreme Court justices enjoy life tenure. Some legal scholars believe that centuries-old custom, meant to protect judicial independence, no longer serves the public.Paul M. Collins Jr., Professor of Legal Studies and Political Science, UMass AmherstArtemus Ward, Professor of Political Science, Northern Illinois UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1130532019-03-20T14:21:25Z2019-03-20T14:21:25ZDomestic abuse: the psychology of coercive control remains a legal battlefield<figure><img src="https://images.theconversation.com/files/264130/original/file-20190315-28487-nmf4l6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>Not everyone was celebrating when Sally Challen’s murder conviction for killing her husband <a href="https://www.theguardian.com/law/2019/feb/28/sally-challen-wins-appeal-against-conviction-for-murdering-husband">was quashed</a>. The backlash on <a href="https://twitter.com/SarahbaxterSTM/status/1101146381002178560">social media</a> indicates we still have a long way to go before domestic abuse is properly understood. </p>
<p>Interestingly, that backlash comes from women as well as men. These are often women who claim not to be able to understand Challen’s actions as depicted in court. Why didn’t she leave, they ask, convinced they would have behaved differently in her place. </p>
<p>They think they would not have ended up in an abusive relationship in the first place. And even if they had, they would have found a way to end the relationship appropriately – by simply leaving, or filing for divorce, not by killing their partner. </p>
<p>Challen’s case has been sent for retrial so all the issues will be decided in court. It it likely to involve the use of coercive control as a partial defence to murder. However, the kind of response seen on social media displays a wider problem which will continue to limit the use of <a href="http://www.legislation.gov.uk/ukpga/2015/9/section/76/enacted">the offence</a> of “controlling or coercive behaviour”. </p>
<p>The offence was introduced in England and Wales in 2015 to criminalise the non-physical aspects of domestic abuse. But there is still insufficient understanding of the individual psychology and social factors which explain why a victim can <a href="https://global.oup.com/academic/product/coercive-control-9780195384048?cc=gb&lang=en&">become entrapped</a> in a relationship characterised by coercive control, and be unable to leave. </p>
<p>For instance, the <a href="http://www.zoelodrick.co.uk/training/article-1">response of the brain and nervous system</a> to trauma, coupled with <a href="https://journals.sagepub.com/doi/abs/10.1177/1365712717725535">gendered expectations</a> of behaviour, can help to explain the behaviour of those who stay with abusive partners. And the <a href="https://www.womensaid.org.uk/femicide-census-published/">most dangerous time</a> for an abused woman is the time when she does try to leave. </p>
<p>If these aspects of domestic abuse are not widely understood, those determining whether an offence has been committed may be unable to recognise the controlling and coercive nature of the behaviour, and its impact on the psyche and behaviour of the victim.</p>
<h2>The science behind staying</h2>
<p>Current thinking in neuroscience and attachment theory tells us that in a dangerous situation, such as when facing the prospect of rape or physical violence, <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2553232/">we are hard-wired</a> to preserve our attachment relationships (our connection with our primary attachment figure who, after childhood, is often a romantic partner) above all else. After a person has attempted fight, flight and freeze in the face of a physical or verbal attack, they will often surrender as a final defence mechanism.</p>
<p>This involves appearing compliant, as though they are making autonomous choices to behave in the way the abuser has asked them to, when in reality they are <a href="http://www.zoelodrick.co.uk/training/article-1">utterly subservient</a> to the abuser’s will. When the victim survives the attack with their attachment to the abuser still intact, their brain records it as a success and automatically behaves in the same way again next time. </p>
<p>Without an understanding of this neuroscience, a victim may feel confused and ashamed of their compliance, believing they are responsible for what happened to them because they didn’t fight back or run away. In reality they are traumatically bonded to their abuser and complying with their demands in order to survive.</p>
<p>Gendered expectations then serve to further disguise the coercive nature of the abuser’s behaviour. According to the <a href="https://global.oup.com/academic/product/coercive-control-9780195384048?cc=gb&lang=en&">sociologist Evan Stark</a>, it is impossible to separate coercive control from an analysis of gender and the expectations associated with feminine and masculine gender roles and identities. </p>
<p>The tactics of coercive control can involve the micro-regulation of everyday domestic activities typically associated with the appropriate role of a woman within a heterosexual partnership. This might include rules and demands about who she sees and where she goes, how she dresses, cooks, cleans, looks after children, and how she performs sexually. </p>
<p>These strategies reinforce a specific construction of feminine identity. And due to the cultural association of masculine identity with control, the male dominance and controlling behaviour typically seen in a coercive relationship may be hard to discern. It may instead be considered to fall at the extreme end of the spectrum of power relations that exist within what many people consider to be “normal” heterosexual partnerships. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/tUVRkBkup0c?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>This means that structural gender inequality both underpins the offence and also acts to normalise it. Without seeing the ways in which gendered expectations may serve to obscure the coercive and controlling nature of certain behaviours, it may be decided that there is insufficient evidence that the behaviour had a serious adverse effect on the victim for the purposes of proving the offence in a criminal court.</p>
<p>When these factors are brought together it is easier to see why many victims do not recognise they are being abused. It also demonstrates why society – and the criminal justice system – struggle to see the lack of autonomy afforded to women in coercive and controlling relationships. They then often end up holding her accountable for taking extreme action, when she could have just “walked away”.</p><img src="https://counter.theconversation.com/content/113053/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charlotte Bishop does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Lawyers and jurors need to know what causes people to behave the way they do.Charlotte Bishop, Lecturer in Law, University of ExeterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941382018-03-29T09:28:21Z2018-03-29T09:28:21ZSurvivors of sexual violence are let down by the criminal justice system – here’s what should happen next<figure><img src="https://images.theconversation.com/files/212616/original/file-20180329-189827-129u74x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Seeking justice.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/witness-stand-black-seat-580450336?src=46-A02O4Xo2yRmDvqwesvw-1-2">Shutterstock</a></span></figcaption></figure><p>How well do criminal justice systems treat survivors of sexual violence? The answer is not only important to survivors. It also <a href="http://journals.sagepub.com/doi/abs/10.1177/1477370815571949">signals to society</a> how sexual violence should be viewed.</p>
<p>The poor treatment of survivors, when combined with <a href="http://www.jstor.org/stable/10.1086/653101?seq=1#page_scan_tab_contents">few perpetrators being convicted</a> and a <a href="https://www.secasa.com.au/assets/Statstics/judging-rape-public-attitudes-and-sentencing.pdf">perception of lenient sentencing</a>, could tacitly signal to society a “<a href="https://books.google.ie/books/about/Policing_Sexual_Assault.html?id=0I8K5x8oOJkC&redir_esc=y">decriminalisation of rape</a>”. This cannot be permitted.</p>
<p>Many survivors in the United Kingdom, Ireland and the US (which all have <a href="https://en.wikipedia.org/wiki/Adversarial_system">adversarial legal systems</a>) have <a href="http://www.rcni.ie/wp-content/uploads/Exec-Summary.pdf">negative experiences of the criminal justice system</a> (CJS). Many <a href="http://www.rcni.ie/wp-content/uploads/Exec-Summary.pdf">also have positive experiences</a>. But certain key problems are flagged time and time again.</p>
<p>There is an urgent need to discuss and rectify these.</p>
<h2>Problems entering the system</h2>
<p>The first problem with the CJS for survivors is that most never enter it in the first place. Sexual assault is <a href="https://www.bjs.gov/content/pub/pdf/vnrp0610.pdf">the most unreported crime against the person</a>. Over 80% of survivors <a href="http://www.jstor.org/stable/10.1086/653101?seq=1#page_scan_tab_contents">never report their experiences to the police</a>. </p>
<p>The reasons for this are often <a href="http://mams.rmit.edu.au/igzd08ddxtpwz.pdf">rooted in fear</a>. Fear of disbelief, of unjustified blame, of retribution, of re-traumatisation, of the impact on their family and community and of being let down by the system. One <a href="http://www.theliffeypress.com/rape-and-justice-in-ireland.html">Irish study</a> found the CJS had “assumed such terrible proportions in the minds of some rape victims that they would prefer to forego any prospect of justice rather than engage with it”. </p>
<p>Even when people do enter the CJS, many leave it again. Survivors’ first contact with police is well known to be a <a href="https://www.cps.gov.uk/publication/report-independent-review-investigation-and-prosecution-rape-london-rt-hon-dame-elish">“make or break”</a> stage. <a href="http://journals.sagepub.com/doi/abs/10.1177/1077801205277539">A 2006 study found that</a> more than 80% of rape survivors without advocacy support felt bad about themselves, and reluctant to seek further help, after their first contact with police. </p>
<p>In recognition of such problems, many police forces have committed to improving training for officers. This seems to be having some positive effects. For example, <a href="http://www.rcni.ie/wp-content/uploads/RCNI-RCC-StatsAR-2015-1.pdf">a 2015 report found</a> that 69% of survivors of sexual violence in Ireland who filed a complaint with police felt the police had treated them sensitively (an increase of 6% from the previous year).</p>
<h2>The problems at trial</h2>
<p>Around <a href="http://www.jstor.org/stable/10.1086/653101?seq=1#page_scan_tab_contents">8% of cases</a> reported to police are taken to trial. Here, survivors face further challenges. As the psychologist <a href="https://www.ncbi.nlm.nih.gov/pubmed/16043563">Judith Herman has noted</a>, “if one set out intentionally to design a system for provoking symptoms of traumatic stress it would look very much like a court of law”. </p>
<p>In particular, cross-examination is frequently cited as <a href="https://www.tandfonline.com/doi/abs/10.1080/15564880903048529">retraumatising</a>. In adversarial legal systems, it is the job of the defence to bring the prosecution’s case into doubt. In sexual violence cases, the survivor’s testimony may be the only evidence. This will therefore be the focus of attack for the defence. <a href="https://academic.oup.com/bjc/article-abstract/57/3/551/2623935">This is typically done by</a> undermining the survivor’s credibility and reliability, and their story’s plausibility and consistency.</p>
<p>Survivors may be accused of lies and fabrication. <a href="https://www.sciencedirect.com/science/article/pii/S1756061614000482">Rape myths and stereotypes</a> can be invoked. Detailed questioning can recreate the powerlessness and terror of the original assault. This is referred to as <a href="http://journals.sagepub.com/doi/abs/10.1177/088626001016012002">secondary victimisation or the second rape</a>. It can have serious consequences for survivors’ mental health and well-being.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212487/original/file-20180328-109182-esf8vg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Rape myths impact juror decision making.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/multi-ethnic-jurors-witness-stand-court-121503349?src=P9umXpNmNuQJcoJGhYrNKw-1-17">Shutterstock</a></span>
</figcaption>
</figure>
<p>Survivors have to deal with this while potentially suffering from the <a href="https://www.ncbi.nlm.nih.gov/pubmed/28689071">psychological consequences</a> of experiencing sexual violence. For example, rape is the most likely form of trauma to lead <a href="http://www.nejm.org/doi/full/10.1056/NEJMra012941">to post-traumatic stress disorder</a> (PTSD). </p>
<p><a href="https://www.psychiatry.org/psychiatrists/practice/dsm">People with PTSD</a> will often try to avoid thoughts and feelings about the trauma. Yet survivors will be forced to address the trauma in excruciating detail in court. PTSD is also associated with exaggerated feelings of blame, overly negative thoughts and assumptions about oneself, and difficulties with memory. </p>
<p>Ironically, the psychological consequences of sexual violence can be <a href="https://academic.oup.com/bjc/article-abstract/57/3/551/2623935">what the defence uses</a> to undermine survivors’ claims to have experienced sexual violence.</p>
<h2>What should happen now</h2>
<p>Reforms to the legal system have focused more on improving its effectiveness (for example, increasing conviction rates) than on increasing its sensitivity to survivors’ needs. Yet, <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1747-4469.1994.tb00941.x/abstract">it has been questioned whether</a> a prosecution that results in a conviction but devastates the victim is really a success. </p>
<p>The starting place for improvement is listening to survivors. This can establish <a href="https://aifs.gov.au/publications/family-matters/issue-85/what-justice-system-willing-offer">what their needs are</a>, what <a href="https://minerva-access.unimelb.edu.au/bitstream/handle/11343/42213/Haley%20Clark%20Thesis.pdf?sequence=1">justice is for them</a>, and what changes they think are necessary. Obviously, this will have to be balanced against the rights of defendants.</p>
<p>Survivors should have legal, psychological and advocacy support. They should be entitled to <a href="http://www.drcc.ie/wp-content/uploads/2011/03/rapevic.pdf">separate legal representation</a> throughout their trial. This can <a href="http://www.drcc.ie/wp-content/uploads/2011/03/rapevic.pdf">increase their satisfaction</a> with the process. They should have the support of an advocate. This <a href="http://journals.sagepub.com/doi/abs/10.1177/1077801205277539">can make survivors</a> less likely to be treated negatively by the police, more likely to receive medical care and less likely to be distressed by medical services. </p>
<p>Survivors should be <a href="http://www.ukpts.co.uk/site/assets/From-Report-to-Court-UKPTS-final.pdf">offered psychological support</a> throughout their involvement with the CJS. Courts and juries should be educated on the <a href="http://www.ukpts.co.uk/site/assets/From-Report-to-Court-UKPTS-final.pdf">potential psychological effects</a> of sexual violence on survivors. This should include effects that relate to strategies commonly employed by the defence during cross examination. </p>
<p>For example, defence lawyers often attempt to undermine the reliability of survivors’ testimony by <a href="https://academic.oup.com/bjc/article-abstract/57/3/551/2623935">challenging them about memory fallibility</a>. Courts may consider inconsistencies, low detail, errors and omissions in survivors’ memories as undermining their testimony. However, <a href="http://openaccess.city.ac.uk/15348/">contemporary psychological understandings of memory</a> consider this typical. Memory is not like a DVD.</p>
<h2>Beyond reform</h2>
<p>Reform may not be enough. The adversarial system is designed to achieve justice for the accused, not the victim. A <a href="http://paralleljustice.org">parallel system</a>, which decouples the pursuit of justice for victims from the administration of justice for offenders, could be helpful to survivors.</p>
<p>A shift to <a href="https://core.ac.uk/download/pdf/9257247.pdf">an inquisitorial system</a> could also help survivors. Here, the state investigates an event and the persons involved to establish the truth. </p>
<p>And yet, all this may still be unsuccessful if we don’t remove from society the <a href="http://journals.sagepub.com/doi/abs/10.1177/0886260509354503">myths and prejudice that surround sexual violence</a>. This is work for everyone.</p><img src="https://counter.theconversation.com/content/94138/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon McCarthy-Jones receives funding from the Brain & Behavior Research Foundation.</span></em></p>Reliving trauma and not being believed – just two of the damning indictments about seeking justice for sexual violence.Simon McCarthy-Jones, Associate Professor in Clinical Psychology and Neuropsychology, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/802632017-08-02T08:39:33Z2017-08-02T08:39:33ZIf a brain can be caught lying, should we admit that evidence to court? Here’s what legal experts think<figure><img src="https://images.theconversation.com/files/180175/original/file-20170728-23788-guf82w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Functional magnetic resonance imaging could reveal whether someone knows something they're not telling.</span> <span class="attribution"><a class="source" href="http://journal.frontiersin.org/article/10.3389/fneur.2013.00016/full">John Graner et al/Frontiers in Neurology</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>A man is charged with stealing a very distinctive blue diamond. The man claims never to have seen the diamond before. An expert is called to testify whether the brain responses exhibited by this man indicate he has seen the diamond before. The question is – should this information be used in court?</p>
<p>Courts are reluctant to admit evidence where there is considerable debate over the interpretation of scientific findings. But a <a href="https://academic.oup.com/jlb/article/3796509/The-limited-effect-of-electroencephalography?searchresult=1">recent study from researchers in the US</a> has noted that the accuracy of such “mind reading” technology is improving. </p>
<p>There are various methods of detecting false statements or concealed knowledge, which vary greatly. For example, traditional “lie detection” relies on measuring physiological reactions such as heart rate, blood pressure, pupil dilation and skin sweat response to direct questions, such as “did you kill your wife?” Alternatively, a <a href="http://theconversation.com/brain-scanners-allow-scientists-to-read-minds-could-they-now-enable-a-big-brother-future-72435">functional magnetic resonance imaging (fMRI)</a> approach uses brain scans to identify a brain signature for lying. </p>
<p>However, the technology considered by the US researchers, known as “brain fingerprinting”, “guilty knowledge tests” or “concealed information tests”, differs from standard lie detection because it claims to reveal the fingerprint of knowledge stored in the brain. For example, in the case of the hypothetical blue diamond, knowledge of what type of diamond was stolen, where it was stolen, and what type of tools were used to effect the theft.</p>
<p>This technique gathers electrical signals within the brain through the scalp by electroencephalography (EEG), signals which indicate brain responses. Known as the <a href="https://www.rroij.com/open-access/the-p300-wave-of-eventrelatedpotential.php?aid=34978">P300 signal</a>, those responses to questions or visual stimuli are assessed for signs that the individual recognises certain pieces of information. The process includes some questions that are neutral in content and used as controls, while others probe for knowledge of facts related to the offence. </p>
<p>The P300 response typically occurs some 300 to 800 milliseconds after the stimulus, and it is said that those tested will react to the stimulus before they are able to conceal their response. If the probes sufficiently narrow the focus to knowledge that only the perpetrator of the crime could possess, then the test is said to be “accurate” in revealing this concealed knowledge. Proponents of the use of this technology argue that this gives much stronger evidence than is possible to get through human assessment.</p>
<p>Assuming this technology might be capable of showing that someone has hidden knowledge of events relevant to a crime, should we be concerned about its use?</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/176612/original/file-20170703-4580-1c1nqcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/176612/original/file-20170703-4580-1c1nqcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=499&fit=crop&dpr=1 600w, https://images.theconversation.com/files/176612/original/file-20170703-4580-1c1nqcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=499&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/176612/original/file-20170703-4580-1c1nqcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=499&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/176612/original/file-20170703-4580-1c1nqcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=627&fit=crop&dpr=1 754w, https://images.theconversation.com/files/176612/original/file-20170703-4580-1c1nqcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=627&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/176612/original/file-20170703-4580-1c1nqcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=627&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">How private are our memories?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cute-girl-colorful-glowing-photo-memories-246693712?src=wiIuEZYLCMwWJVX1yAjxjQ-1-18">ESB Professional/Shutterstock</a></span>
</figcaption>
</figure>
<h2>Potential for prejudice</h2>
<p>Evidence of this sort has not yet been accepted by the English courts, and possibly never will be. But similar evidence has been admitted in other jurisdictions, including India. </p>
<p>In the Indian case of <a href="http://www.nytimes.com/2008/09/15/world/asia/15brainscan.html">Aditi Sharma</a> the court heard evidence that her brain responses implicated her in her former fiancé’s murder. After investigators read statements related and unrelated to the offence, they claimed her responses indicated experiential knowledge of planning to poison him with arsenic, and of buying arsenic with which to carry out the murder. The case generated much discussion, and while she was initially convicted, this was later overturned. </p>
<p>However, the Indian Supreme Court has <a href="http://www.thehindu.com/migration_catalog/article16297234.ece/BINARY/Supreme%20Court%20judgement%20on%20narco-analysis%20test%20(833%20Kb)">not ruled out the possibility of such evidence being used</a> if the person being tested freely consents. We should not forget that people may knowingly conceal knowledge of facts relevant to a crime for all sorts of reasons, such as protecting other people or hiding illicit relationships. These reasons for hiding knowledge may have nothing to do with the crime. You could have knowledge relevant to a crime but be totally innocent of that crime. The test is for knowledge, not for guilt.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=705&fit=crop&dpr=1 600w, https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=705&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=705&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=886&fit=crop&dpr=1 754w, https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=886&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/176644/original/file-20170703-17450-u7v7lb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=886&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">How much weight is placed on neuroscientific evidence in the courtroom?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/balance-weight-head-silhouette-graphic-design-330801134">Studio_G/Shutterstock</a></span>
</figcaption>
</figure>
<h2>Context is key</h2>
<p>The US researchers looked at whether brain-based evidence might unduly influence juries and prejudice the fair outcome of trials. They found concerns that <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2778755/">neuroscientific evidence may adversely influence trials</a> could be overstated. In their experiment, mock jurors were influenced by the existence of brain based evidence, whether it indicated guilty knowledge or the absence of it. But the strength of other evidence such as motive or opportunity weighed more heavily in the hypothetical jurors’ minds.</p>
<p>This is not surprising, as our <a href="https://academic.oup.com/jlb/article/2/3/510/1917949/The-use-of-neuroscientific-evidence-in-the?searchresult=1">case-based research</a> demonstrates the importance of the context in which neuroscientific evidence is introduced in court. It could help support a case, but the success is dependent on the strength of all the evidence combined. In no case was the use of neuroscientific evidence alone determinative of the outcome, though in several it was highly significant.</p>
<p>Memory detection technologies are improving, but even if they are “accurate” (however we choose to define that term) it does not automatically mean they will or should be allowed in court. Society, legislators and the courts are going to have to decide whether our memories should be allowed to remain private or whether the needs of justice trump privacy considerations. Our innermost thoughts have always been viewed as private; are we ready to surrender them to law enforcement agencies?</p><img src="https://counter.theconversation.com/content/80263/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Using mind reading technologies in court could become common practice.Lisa Claydon, Senior Lecturer in Law, The Open UniversityPaul Catley, Head of Law School, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/555612016-03-01T00:57:40Z2016-03-01T00:57:40ZTo believe or not to believe: child witnesses and the sex abuse royal commission<p>Testifying from Rome on Monday, Cardinal George Pell told the royal commission into child sex abuse that the Catholic Church had a <a href="http://www.theguardian.com/australia-news/2016/feb/29/george-pell-church-made-enormous-mistakes-in-dealing-with-paedophile-priests">“predisposition not to believe”</a> children who made complaints about abuse. </p>
<p>You would be forgiven for thinking such attitudes towards children were common “back then”. Maybe they were. You might think that children were only ever seen, not heard “in those days”. Not so.</p>
<p>Throughout the 20th century offences against children were being prosecuted in courts across Australia – often. Guilty verdicts were handed down – often. Perpetrators went to prison – often.</p>
<p>Countless cases clearly show that children were believed in police stations and courtrooms. Juries believed them. Judges believed them. Even defendants are known to have admitted that children were <a href="http://nla.gov.au/nla.news-article111542000">telling the truth</a>. But to believe or not to believe a child’s allegation of abuse is an issue that has challenged legal systems from time immemorial.</p>
<h2>The historical context</h2>
<p>From the mid-18th century until the late 20th century, before a child could give evidence in court they first had to demonstrate that they understood the nature of an oath. This involved demonstrating their belief in God and understanding that they would go to hell if they lied.</p>
<p>Many children failed this test. The absurdity of asking young children such a question is <a href="http://nla.gov.au/nla.news-article40683129">demonstrated by the response</a> of a four-year-old boy giving evidence in Melbourne in 1929. Asked if he knew “who watches over us and knows everything we do?”, the boy rather smartly replied:</p>
<blockquote>
<p>The police. </p>
</blockquote>
<p>His evidence was rejected.</p>
<p>But judges and courts could also be quite creative in how they approached this issue – far more so than they can be now. When it mattered – to them – judges often found creative ways for children to satisfy the oath question. Presiding over the trial of a known sex offender and not satisfied the eight-year-old witness understood the nature of an oath, a judge in Maryborough in 1910 <a href="http://nla.gov.au/nla.news-article148736798">adjourned the matter</a> so that the boy could be:</p>
<blockquote>
<p>… instructed as to the nature of the difference between truth and falsehood.</p>
</blockquote>
<p>In response to a child witness saying he would go to hell if he lied, Judge Foster in Victoria once <a href="http://nla.gov.au/nla.news-article91071921">famously remarked</a>:</p>
<blockquote>
<p>Don’t you believe it, sonny. There is no hell. It is a shame that children should be taught such a thing.</p>
</blockquote>
<p>Not surprisingly, the Catholic Freeman’s Journal took great exception to Foster’s remarks. It <a href="http://nla.gov.au/nla.news-article146410875">noted</a>:</p>
<blockquote>
<p>Every Catholic is … taught that perjury by a false oath is a mortal sin. And every Catholic is also taught that those who die in a state of mortal sin go to hell.</p>
</blockquote>
<p>Even where children could not satisfactorily demonstrate an understanding of the oath, they were often permitted to give unsworn evidence. This, in turn, presented another hurdle for the child. The law differed from state to state, but generally a child’s unsworn testimony needed to be corroborated by the sworn testimony of an independent witness. </p>
<p>This was problematic for offences involving the abuse of children. Either the child victim was alone or the other children present could not give sworn testimony. Such cases were frequently dismissed for want of corroborative evidence.</p>
<h2>Attempts at reform</h2>
<p>The legal system often presented a significant barrier to the satisfactory resolution of offences against children. It still does. The chair of the royal commission, Peter McClellan, has previously spoken of the problems posed by the justice system’s <a href="http://childabuseroyalcommission.gov.au/media-centre/speeches/14th-australasian-conference-on-child-abuse-and-ne">historical attitudes towards children</a>.</p>
<p>But it was never the case that such offences could not be prosecuted. In the right circumstances they could be, and they were.</p>
<p>The Australian Law Reform Commission has <a href="http://www.alrc.gov.au/publications/14-childrens-evidence/children-reliable-witnesses">previously noted</a> that the requirement to swear an oath discriminated against children who did not have religious beliefs or even knowledge of religion.</p>
<p>Presumably, then, the child residents of the religious institutions investigated during the royal commission would have been some of the most competent of witnesses. They would have had the message about God and hell <a href="http://www.childabuseroyalcommission.gov.au/case-study/860eabc6-e0fc-453a-b9d4-51a89852fede/case-study-28,-may-and-november-2015">literally beaten</a> into them. </p>
<p>They would have been in a position to give sworn evidence. And if they couldn’t, it would have been likely that other children who had witnessed the abuse could give sworn evidence corroborating the unsworn testimony.</p>
<p>Truth-telling is a base premise of Catholic religious instruction. Therefore, child witnesses who emerged from these institutions – through fear alone of the fiery depths of hell – had another dimension of witness reliability. In the right circumstances, with adult police and adult judges and adult juries ready to believe them, the impediments to these children being heard were significantly reduced.</p>
<p>That children from religious institutions were not listened to or protected, in circumstances where the law may well have done so, speaks volumes about the Catholic Church. While Pell claims these “muck-ups” were due to the <a href="http://www.theguardian.com/australia-news/2016/feb/29/george-pell-church-made-enormous-mistakes-in-dealing-with-paedophile-priests">personal failings</a> of a few members of the church, the history of children in Australian courts suggests otherwise. </p>
<p>All the structures were in place, bolstered by Catholic dogma, to hear the testimonies of these children within the courts. That they were not heard points to an organisational structure that consistently and repugnantly failed the most vulnerable of its members.</p><img src="https://counter.theconversation.com/content/55561/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robyn Blewer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>George Pell told the royal commission into child sex abuse the Catholic Church was predisposed not to believe children’s complaints. But, when abuse was reported, police and the courts believed them.Robyn Blewer, PhD Candidate, Griffith Criminology Institute, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/499442015-11-04T00:19:11Z2015-11-04T00:19:11ZMerging federal courts’ administration won’t improve services for those who need it<figure><img src="https://images.theconversation.com/files/100254/original/image-20151030-20128-526p9e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family Court clients often have specific needs and vulnerabilities.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>The federal government <a href="http://www.australasianlawyer.com.au/news/budget-savings-trigger-federal-courts-merger-207337.aspx">looks set</a> to merge the administration of three of Australia’s federal courts — the Federal Court, the Family Court and the Federal Circuit Court – with the aim of saving A$6 million over four years.</p>
<p>While the government <a href="https://www.ag.gov.au/Publications/Budgets/Budget2015-16/Documents/Portfolio-budget-statements/19-2015-16-PBS-Federal-Court.pdf">has said</a> that the proposed model will “preserve the courts’ functional and judicial independence”, what has been foreshadowed appears to be less a collaborative model and more one in which the Federal Court will simply assume administrative responsibility for the other two courts.</p>
<p>The rationale for that approach is unclear. It could have significant implications for the way in which resources are allocated to meet the needs of Australia’s family courts and their clients.</p>
<h2>Feeling the pinch</h2>
<p>The Federal Circuit Court was designed to provide a faster, simpler and more accessible alternative to the Family Court and the Federal Court. In practice, family law matters make up most of its workload – <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part3">91% in 2014-15</a>.</p>
<p>But the Federal Circuit Court is under pressure. Its <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part3">annual report</a> reveals that the number of new family law filings in the court grew 3.5% for the year 2014-15 (to 86,380), while the number of cases concluded remained relatively static (81,744). </p>
<p>These figures tell only part of the story. As chief judge John Pascoe has <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part1">pointed out</a>, this workload is being dealt with by fewer judges. Of the four new judges recently <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FourthQuarter/29-October-2015-Appointments-to-the-Federal-Court-and-Federal-Circuit-Court.aspx">appointed</a> to the court, only one is a family law expert.</p>
<p>Waiting times for trials have grown and <a href="http://www.dailytelegraph.com.au/news/nsw/family-law-tsunami-swamps-western-sydney-court-with-600-per-cent-blowout-in-cases/story-fni0cx12-1227360823222?sv=c5d402a1ecd36c70f3790b2b6dbc686">recent reports</a> suggest that some judges may be carrying workloads of up to 700 cases. The court finalised <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/annual-reports/2014+-+15/2014-15-annual-report-part3">only 73%</a> of final order applications in 2014-15, well down on its target of 90%. </p>
<p>The Family Court deals with more complex family law matters and appeals in family matters from the Federal Circuit Court. In 2014-15, the number of notices of appeal <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/annual-reports/2014-15/2014-15-annual-report-part1">grew by 18%</a>. None of this is good news for families and litigants caught up in family law matters.</p>
<h2>What’s happened elsewhere?</h2>
<p>The US and Canada have centralised court administration support functions for their federal courts. However, unlike Australia, in those countries the high-volume family law jurisdiction, with its special needs, is a matter for state – or provincial – courts.</p>
<p>Two Australian states – South Australia and Victoria – have centralised court administration under what are essentially collaborative models. The head of each court has a seat at the table. Their establishment has been driven by the need to ensure judicial independence and provide greater autonomy and flexibility in allocating resources to meet administrative needs and functions.</p>
<p>However, the move to centralisation at federal level appears to be driven by the executive, rather than the courts, and motivated primarily by reducing costs.</p>
<h2>Why it matters</h2>
<p>Rationalising administration sounds innocuous in terms of payroll, communications and judge travel. But court administrative functions also impact directly on the service court users receive by way of support and information, efficiency of case processing, and ancillary services such as alternative dispute resolution, interpreting, family support, IT and court security.</p>
<p>Family court clients often have specific needs and vulnerabilities. And at a time when there is a national commitment to <a href="http://www.malcolmturnbull.com.au/media/release-womens-safety-package-to-stoptheviolence">addressing family violence</a>, a federal inquiry underway into <a href="https://www.childabuseroyalcommission.gov.au/">child abuse</a>, and increasing attention on issues of <a href="http://www.smh.com.au/federal-politics/political-news/mental-health-shakeup-imminent-health-minister-sussan-ley-says-20151004-gk0uuj.html">mental illness</a> and <a href="http://www.brisbanetimes.com.au/queensland/queensland-government-unveils-6-million-plan-to-tackle-ice-problem-20150920-gjqpht.html">drug addiction</a>, it is vital to ensure that Australia’s family courts are well-equipped to tackle the flow-on effects of these problems in family court cases.</p>
<p>Family Court Chief Justice Diana Bryant has <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/annual-reports/2014-15/2014-15-annual-report-part1">reported</a> an increasing number of cases involving mental illness and substance abuse, as well as the complexities of matters involving family violence or allegations of child abuse. </p>
<p>Those factors have obvious implications – not just for the workload of judges, but also for support staff dealing with those clients.</p>
<p>These courts have high levels of people who handle their own court cases because they can’t afford, or don’t want, to engage a lawyer. Skilled administrative staff play an important role in providing the additional information and support they need.</p>
<p>Problems associated with increased judicial workloads are also unlikely to be fixed by a focus on “back-end” operations. Their solution might require more resourcing, not less. These resources might be used to support a renewed focus on case management and workforce planning in the Federal Circuit Court, as well as judicial appointments.</p><img src="https://counter.theconversation.com/content/49944/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Wallace has received funding from the Australian Research Council, including a project in which the Family Court of Australia was one of several industry partners who contributed industry partner funding and support. </span></em></p>Merging the back-end operations of Australia’s federal courts could have significant implications for the way in which resources are allocated to meet the needs of family courts and their clients.Anne Wallace, Professor, School of Law & Justice, Edith Cowan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/340102014-11-14T01:02:27Z2014-11-14T01:02:27ZIn plea bargaining, who really gets the bargain?<figure><img src="https://images.theconversation.com/files/64330/original/vzqn33kx-1415757816.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Plea bargaining in our criminal justice system receives far more negative than positive attention.</span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>Plea bargaining consistently attracts <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/cathu61&div=5&id=&page=">more attention</a> than almost any other aspect of the criminal justice system. Recently, it has received more attention than usual after US District Court judge Jed Rakoff <a href="http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/">joined the chorus</a> of concerns about the dangers of <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/mulr35&div=37&id=&page=">“secret” plea bargaining</a>.</p>
<p>However, Rakoff was not warning about abuse of the process by defendants: he was warning about the abuse of defendants through the process. </p>
<p>Rakoff argued that prosecutors could use plea bargaining to exert pressure on defendants by inflating charges, lying about or exaggerating evidence, and overstating possible sentences. With no media or judicial oversight, and in some cases no legal representation, prosecutors could coerce or induce pleas from defendants to lesser charges that were still in excess of what could be proved against them in court.</p>
<h2>Explaining plea bargaining</h2>
<p>Plea bargaining is negotiations between the prosecution and the defence that result in a criminal defendant pleading guilty to fewer or lesser offences than they originally faced, in exchange for the dropping of the original charges.</p>
<p>It looks like a “win-win” situation. The prosecution secures a conviction, avoids the enormous public expense of trial, and saves victims of crime the trauma of appearing in court. Defendants take responsibility for their actions and receive the reduced sentence that goes with a guilty plea. </p>
<p>However, plea bargaining receives far more negative than positive attention. Since <a href="http://works.bepress.com/steven_krieger/2/">“tough on crime” politics</a> took root in the US in 1960s, and in Australia in the following decades, there has been political and public opposition to criminals and prosecutors doing behind-the-scenes deals instead of going to trial.</p>
<p>Plea bargains don’t happen in court, are not subject to appeal or review by judges, are not guided by legislation, and are not reported. The lack of transparency about the process has created the fear that criminals use the system to get away with serious crimes and end up with light penalties for minor offences.</p>
<h2>Why plea bargaining leads to outrage</h2>
<p>Plea bargaining typically arouses public outrage where murder charges result in convictions for manslaughter, or attempted murder charges result in cause serious harm offences. </p>
<p>The assumption behind the outrage is that in every case the original, higher charge was correct, so the defendant has scored a “bargain” by pleading guilty to a lesser charge. This reasoning is faulty in two ways.</p>
<p>First, it is impossible that the original charge was correct in every case of a plea bargain. The original charge is made by the police, who are not legally trained. They might “overcharge” by choosing an offence that is not the right fit for the facts of the case.</p>
<p>Alternatively, police might choose the offence that is correct on the facts at the time of the offending, but later investigations might produce less or different evidence than expected. Witnesses might also turn out to be unreliable, or evidence was obtained in a manner that means it is unlikely to be admitted in court. </p>
<p>It is a core function of the Office of the Director of Public Prosecutions to review charges laid by police and amend them as appropriate. The plea may not be a bargain at all, but rather be absolutely appropriate given the facts, the evidence and the requirement to prove offences beyond reasonable doubt if they go to trial.</p>
<p>Also, the idea that every criminal defendant who reaches a plea agreement is extracting a bargain from the prosecutors is curious. The avoidance of trial is desirable for prosecutors but, equally, they have the resources of the state behind them specifically to bring criminal prosecutions and have no motivation to make inappropriate compromises. </p>
<p>In making plea deals, prosecutors are negotiating with an individual, often in custody, often facing a prison sentence and sometimes without a lawyer. To suggest that defendants are in control in this situation does not reflect the reality of most criminal defendants before and during trial.</p>
<h2>Long history of controversy</h2>
<p>The irony of the controversy over Rakoff’s comments is that his views are not new. They are simply counter to current thinking. Two hundred years ago, Thomas Jefferson <a href="http://www.fairplay.org/jury/whitepaper.html">famously referred</a> to the criminal trial as:</p>
<blockquote>
<p>… the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.</p>
</blockquote>
<p>Jefferson’s commitment that public ventilation of criminal matters through trial in open court was necessary for the protection of the defendant rights resonated through later centuries. However, under the influence of tough on crime rhetoric, this view morphed into the strange fear that defendants are going to exploit the power of the state from their prison cells.</p>
<p>Rakoff’s perspective offers a timely reminder about where the power has always and continues to lie in criminal prosecution.</p><img src="https://counter.theconversation.com/content/34010/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kellie Toole does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Plea bargaining consistently attracts more attention than almost any other aspect of the criminal justice system. Recently, it has received more attention than usual after US District Court judge Jed Rakoff…Kellie Toole, Lecturer in Law, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/196922013-11-22T21:18:19Z2013-11-22T21:18:19ZJustice reform: a better way to deal with sexual assault<figure><img src="https://images.theconversation.com/files/34752/original/bjmvj59w-1383885444.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The 'lock 'em up' approach largely ignores the victim.</span> <span class="attribution"><span class="source">Image from shutterstock.com</span></span></figcaption></figure><p>All too often, governments take the lazy option when faced with public outcry about sexual offences. Their automatic, knee-jerk, politically charged response is to “get tough on crime” by imposing mandatory sentences, removing parole, cutting back on rehabilitation and demonising offenders. </p>
<p>This “lock ‘em up”, one-trick pony approach is claimed to be taken in the name of victims but, ironically, many are virtually ignored in the process.</p>
<p>It’s time for a drastic overhaul of our justice system’s response to sexual assault. The adversarial system, combined with a reactive political approach, has failed victims of sexual assault on far too many occasions. We need innovative and alternative responses which better address the <a href="http://www.aifs.gov.au/acssa/pubs/issue/i12/i12.pdf">needs of victims</a>, while also acknowledging the importance of offender rehabilitation.</p>
<h2>Current situation</h2>
<p>Despite relatively recent <a href="http://www.lawreform.vic.gov.au/projects/sexual-offences/sexual-offences-final-report-summary">Victorian law reforms</a> intended to make the prosecution of sex offences more responsive and victim-inclusive, <a href="http://www.sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/recidivism_of_sex_offenders_research_paper.pdf">acquittal rates</a> remain high and <a href="http://www.sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/files/recidivism_of_sex_offenders_research_paper.pdf">conviction rates</a> remain low. Victims’ groups continue to <a href="http://www.victimsclearinghouse.nsw.gov.au/vocrc/victims_clearinghouse_research_database_sexualassault_act_rollercoaster.html?s=1001">describe the criminal justice</a> process as disempowering, counter-therapeutic, costly and delayed.</p>
<p>Likewise, a high incidence of <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4906.0/">sexual assault in the community</a> and corresponding <a href="http://www.aic.gov.au/documents/D/4/6/%7BD4631AC0-2DDC-4729-AD3C-8A69DF33BA65%7D2003-06-review.pdf">under-reporting</a> continue to be a significant problem. While the reasons for these statistics are complex, they will continue to deter victims from the prosecution process. They also demonstrate that the justice system – in its current form – is not operating effectively.</p>
<p>The current system assumes that the best outcome for victims of sexual assault is to prosecute the alleged perpetrator. If there happens to be a conviction, then a victim impact statement may be asked for.</p>
<p>But victims’ views are not homogeneous, which shows we need a more complex approach. Yes, victims may want condemnation of the offence, but often they also want formal acknowledgement of the harm done to them and the opportunity to share their story on their own terms – rather than through the confined parameters of the justice system. More than anything they want the violence against them and anyone else to stop.</p>
<p>The Victorian government recently announced a <a href="http://www.justice.vic.gov.au/home/justice+system/laws+and+regulation/criminal+law/review+of+sexual+offences+consultation+paper#breadcrumbs">review</a> of sexual offences. The consultation paper canvasses a raft of potential reforms to the current law, but doesn’t contemplate the inclusion of alternative justice options outside the traditional – and in many ways failed – adversarial model.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/34170/original/7hqk9mkk-1383198666.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/34170/original/7hqk9mkk-1383198666.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/34170/original/7hqk9mkk-1383198666.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/34170/original/7hqk9mkk-1383198666.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/34170/original/7hqk9mkk-1383198666.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/34170/original/7hqk9mkk-1383198666.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/34170/original/7hqk9mkk-1383198666.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Many victims want formal acknowledgement of the harm done to them and the opportunity to share their story on their own terms.</span>
<span class="attribution"><span class="source">AAP/Joe Castro</span></span>
</figcaption>
</figure>
<h2>Innovative justice responses</h2>
<p>There are better options: options which see victims’ experiences properly acknowledged, which are more therapeutic and less alienating for victims and offenders, and which can deliver on the aims of justice more holistically and efficiently. Alternative and <a href="http://www.aifs.gov.au/acssa/pubs/issue/i12/index.html">innovative justice</a> responses are “newer practices that seek to address victims’ justice needs” and also incorporate offender accountability and rehabilitation. </p>
<p>Alternative and innovative justice mechanisms can be located within the formal justice system or exist alongside it. <a href="http://www.aifs.gov.au/acssa/pubs/issue/i12/i12f.html">Examples</a> include, but are not limited to:</p>
<ul>
<li><p>Restorative justice initiatives, such as victim-offender conferencing, non-court based acknowledgement processes involving truth telling procedures and family mediation</p></li>
<li><p>Therapeutic justice initiatives, such as specialist courts, diversion and treatment programs.</p></li>
</ul>
<p>These responses emphasise participation, validation, collaboration and accountability.</p>
<p>Some judges and lawyers have identified <a href="http://www.smh.com.au/federal-politics/society-and-culture/some-sex-offences-are-best-dealt-with-out-of-the-courts-20130122-2d57l.html">restorative and therapeutic justice initiatives</a> as having the potential to make the criminal justice system “<a href="http://www.smh.com.au/federal-politics/editorial/a-radical-alternative-that-just-might-work-20110908-1jzt8.html">fairer and more responsive</a>” for victims and offenders alike. Other jurisdictions have taken up the challenge of innovative and alternative justice models to deal with sexual offenders, including the <a href="http://www.courtinnovation.org/sites/default/files/Sex_Offense_Courts.pdf">specialist sex offence court</a> in New York, the <a href="http://www.academia.edu/274691/Project_Restore_An_Exploratory_Study_of_Restorative_Justice_and_Sexual_Violence">victim-offender conferencing</a> model in New Zealand.</p>
<p>Innovative justice is about finding new solutions to old problems. It requires a focus on what works, trialling novel ideas and allowing for new opportunities for redress and accountability.</p>
<h2>Next steps</h2>
<p>Currently victims have a stark choice between police, prosecution and court – or nothing. No single justice response will have every answer for every context, so <a href="http://www98.griffith.edu.au/dspace/bitstream/handle/10072/4152/vaw_paper.pdf;jsessionid=BF3CD63523B732D7643F481A2D8126F5?sequence=1">a diverse range of options</a> is required.</p>
<p>There will always be cases in which the conventional criminal justice system plays a vital role – because the victim and/or offender want it, and because the community expects it. Even so, it is critical to remain flexible, innovative, and have a suite of options available to fit the circumstances of each case.</p>
<p>Of course, there are also those who will argue for caution when embracing innovation in this area. Understandably, there is a <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1032482">reluctance</a> to see progress undermined by perceptions that alternative options are “soft”, or that they could compound the community’s trivialisation of sexual offending. Clearly, these are legitimate concerns that must be kept in mind when weighing into this debate.</p>
<p>If we are committed to better meeting the needs of current victims, and reducing the number of future victims, we need to rethink traditional approaches to sexual offences and embrace innovation.</p>
<p>Importantly, innovative approaches recognise that justice will not necessarily be achieved through increasing criminalisation, incarceration and stigmatisation</p><img src="https://counter.theconversation.com/content/19692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rob Hulls is a former Victorian Attorney-General and state Labor MP. RMIT's Centre for Innovative Justice received a publicly announced grant from the federal government in 2012.</span></em></p>All too often, governments take the lazy option when faced with public outcry about sexual offences. Their automatic, knee-jerk, politically charged response is to “get tough on crime” by imposing mandatory…Rob Hulls, Director, Centre for Innovative Justice, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.