tag:theconversation.com,2011:/uk/topics/court-26088/articlesCourt – The Conversation2024-02-01T12:42:41Ztag:theconversation.com,2011:article/2203492024-02-01T12:42:41Z2024-02-01T12:42:41ZHalo effect: do attractive people really look less guilty? How the evidence is changing<figure><img src="https://images.theconversation.com/files/567991/original/file-20240105-16-l5dgrq.jpg?ixlib=rb-1.1.0&rect=0%2C15%2C2616%2C1917&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Witness for the Prosecution was a 1957 film about a supposedly conscientious woman testifying against her husband. </span> <span class="attribution"><a class="source" href="https://www.alamy.com/dietrichlaughton-witness-for-the-prosecution-1957-image236825116.html?imageid=67079CF2-84AD-4647-8D62-1004A2F7ECE0&p=1894192&pn=undefined&searchId=2957f60faf41b160bd1bf39e7ece4f9e&searchtype=0&login=1">Allstar Picture Library Limited/Alamy Stock Photo</a></span></figcaption></figure><p>You might think attractive people get preferential treatment in life – and research suggests you’d be right. Some psychologists have shown this can even help people get a lighter prison sentence. More recently, however, <a href="https://journals.sagepub.com/doi/full/10.1177/17470218231218651">our own study</a> suggests that this “halo effect” is, in fact, more complicated. </p>
<p>The <a href="https://www.psychologytoday.com/gb/basics/halo-effect">halo effect</a> is a psychological term describing how an initial good impression of someone positively colours our subsequent perceptions of them.</p>
<p>Our first impressions are <a href="https://journals.sagepub.com/doi/full/10.1111/j.1467-9280.2006.01750.x">formed quickly</a> when we meet new people and they bias how we behave towards them. When we judge a person to be attractive, this can cause us to believe they also have other socially desirable traits, such as being interesting or funny.</p>
<p>Studies show that, as a result, attractive people may <a href="https://www.sciencedirect.com/science/article/abs/pii/0022103176900731">receive more help</a> from strangers, <a href="https://www.tandfonline.com/doi/full/10.1080/13504851.2011.587758">earn higher wages</a>, and get more <a href="https://www.sciencedirect.com/science/article/abs/pii/S0165176512005599">job opportunities</a>.</p>
<h2>Cognitive biases</h2>
<p>One place in which you’d really hope that appearance doesn’t affect decisions is in court. The problem, however, is that jurors show biases just like other people. </p>
<p>Studies into real cases have found that inmates who people think look <a href="https://journals.sagepub.com/doi/full/10.1177/0956797615590992">less trustworthy</a> may be more likely to receive death sentences, while <a href="https://link.springer.com/article/10.1007/bf01065855">baby-faced defendants</a> in small claims courts may be more likely to win cases involving intentional actions. And, as you might now suspect, <a href="https://www.tandfonline.com/doi/abs/10.1080/00224545.1985.9922900">more attractive defendants</a> seem to receive more lenient sentences.</p>
<p>That said, it can be difficult to work out the causes of effects found in studies conducted in real-world situations, and there are often many possible explanations. For this reason, studies in the laboratory can be the best way to investigate specific research questions.</p>
<p>In lab studies, participants typically feature in the role of mock jurors. Again, these tend to show evidence that attractive people receive more lenient punishments for <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.1994.tb01552.x">most types of crime</a>. </p>
<p>Attractiveness <a href="https://www.tandfonline.com/doi/full/10.1080/01639625.2020.1844364">doesn’t always</a> influence mock juror decisions though. The attractiveness of the defendant may interact with other factors, such as the <a href="https://pubmed.ncbi.nlm.nih.gov/15074507/">attractiveness of the plaintiff</a> or whether the jurors have <a href="https://journals.sagepub.com/doi/abs/10.2466/pr0.102.3.727-733">a chance to deliberate</a> with each other.</p>
<p>However, previous laboratory-based studies also show limitations. First, they often focus on only one type of crime, so it isn’t clear whether attractiveness may play a role in the sentencing of some crimes but not others. Second, these studies present a single image of their supposed criminals even though real juries typically see defendants moving around and from different angles, which could change jurors’ perceptions of defendents’ attractiveness. </p>
<p>Finally, many studies investigate the impact of attractiveness by comparing decisions based on just one “high attractive” versus one “low attractive” defendant. In reality, attractiveness is a continuous measure, so this simplified comparison of the two extremes may not show what’s really going on. Plus the two faces chosen are unlikely to be representative of all such faces – a particular face might be very attractive, but will also have many other specific qualities that make it different.</p>
<h2>New findings</h2>
<p>In a <a href="https://journals.sagepub.com/doi/full/10.1177/17470218231218651">recent study</a>, my collaborators and I tackled these limitations by including several different descriptions of crimes, supposedly perpetrated by the defendant, for each of three crime types (robbery, sexual assault, murder). </p>
<p>We also presented short video clips to our mock jurors rather than photos of the defendants. Finally, we used 60 different “defendants” varying in attractiveness. In this way, we hoped that our findings might better apply to the processes evident in the real world.</p>
<p>During the experiment, some of the participants judged the attractiveness of the defendants. On each of the 60 trials, they were presented with a five-second video clip of a smartly dressed man testifying in court (with the sound removed) and rated the attractiveness using a zero (very unattractive) to nine (very attractive) scale.</p>
<p>Other participants judged the perceived guilt of the men (again, with the sound removed to avoid being influenced by what was being said). Each video clip was accompanied by a crime description and participants rated whether they thought the man was innocent or guilty using a zero (definitely innocent) to nine (definitely guilty) scale. We then used the men’s attractiveness ratings to see if these predicted the guilt ratings they received.</p>
<p>Our results provided some evidence that more attractive defendants were rated as less guilty of murder but more guilty of sexual assault, with no bias observed for robbery. However, these effects were all small in size. In other words, even if there was some influence of attractiveness on perceived guilt, it would be of little importance in the real world.</p>
<p>Given that researchers typically find that more attractive people receive lighter sentences, we argue that the lack of an effect of attractiveness in our study is likely due to the improvements in our design. Of course, there are still many differences between our study and jurors’ experiences that we didn’t investigate. For instance, the way that defendants speak in court may influence perceptions, as might their gender.</p>
<p>Since attractiveness is known to bias judgements in a number of contexts, why might it fail to influence decisions of guilt or innocence in court? </p>
<p>We suggest the seriousness of the crime could trump any biases due to the defendant’s appearance. Although we may think more favourably about attractive people in daily life, this halo effect could dissipate when we are faced with decisions about robbery or murder. </p>
<p>In such circumstances, we would hope that the evidence carries most of the weight in our decision-making processes.</p>
<p>Although there may be good reason for jealousy when considering the way attractive people are treated in general, justice may overcome such things in the courtroom.</p><img src="https://counter.theconversation.com/content/220349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robin Kramer 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>Recent research suggests jurors are less likely to be lenient on attractive defendants than previously thought.Robin Kramer, Senior Lecturer in the School of Psychology, University of LincolnLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2218522024-01-31T22:33:11Z2024-01-31T22:33:11ZUse of lockdowns in Canadian prisons could amount to torture<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/use-of-lockdowns-in-canadian-prisons-could-amount-to-torture" width="100%" height="400"></iframe>
<p>The Supreme Court of Nova Scotia <a href="https://www.cbc.ca/news/canada/nova-scotia/judge-rules-lockdowns-due-to-staff-shortages-at-nova-scotia-jails-are-unlawful-1.7084269">recently ruled</a> in a pair of decisions that it is unlawful to lock down imprisoned people due to staff shortages. Lockdowns are a practice of restrictive confinement that has become <a href="https://www.cbc.ca/news/canada/nova-scotia/east-coast-prison-justice-lockdowns-jails-prisoners-1.6117836">increasingly common</a>. This is despite the fact that, under the <a href="https://www.un.org/en/un-chronicle/nelson-mandela-rules-protecting-rights-persons-deprived-liberty">United Nations Nelson Mandela Rules</a>, those lockdowns meet the criteria for torture. </p>
<p>In November 2023, the East Coast Prison Justice Society raised alarm over institutional lockdowns at the Central Nova Scotia Correctional Facility in Dartmouth. One of the prisoners the society spoke with said, “<a href="https://www.eastcoastprisonjustice.ca/press-releases.html">things are worse than they have ever been</a>.”</p>
<p>Lockdowns are common not just in Nova Scotia, <a href="https://www.thestar.com/news/canada/lockdowns-soaring-in-ontario-jails-due-to-staff-shortages/article_4012038e-c280-5697-b94a-08b7c3a00276.html">but across Canada</a>. Perhaps most notoriously, the Toronto South Detention Centre has been subject to <a href="https://www.ohrc.on.ca/en/report-conditions-confinement-toronto-south-detention-centre">numerous investigations</a> surrounding its abuse of restrictive confinement. </p>
<p><a href="https://www.ontario.ca/document/2022-data-release-inmates-ontario/human-rights-based-data-collection-inmates-restrictive-confinement">Recent data</a> collected by Ontario’s Ministry of the Solicitor General further demonstrates the extent of the problem in provincial institutions (no data is available on Nova Scotia). Between April 1, 2021 and March 31, 2022, 15,929 individuals, out of a total of 29,693 people in custody, spent at least one day in a unit that was regularly locked down for 17 hours or more per day. These trends are relatively stable and consistent across provinces. </p>
<p>The East Coast Prison Justice Society said they were increasingly concerned by the impact these conditions have on the physical and mental health and well-being of prisoners. Given the ongoing problem of lockdowns across prisons in Canada, what is the significance of the court’s rulings, and do they go far enough?</p>
<h2>Loss of liberty and habeas corpus</h2>
<p><a href="https://www.canlii.org/en/ns/nssc/doc/2024/2024nssc11/2024nssc11.html">The pair</a> of <a href="https://www.canlii.org/en/ns/nssc/doc/2024/2024nssc12/2024nssc12.html">rulings</a> from the Nova Scotia Supreme Court found that the routine use of institutional lockdowns in the province’s jails to address staffing shortages is unlawful. </p>
<p>Two <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art10c.html">habeas corpus</a> petitions were filed by Durrell Diggs and Ryan Wilband, both low-risk prisoners, who were subjected to cell confinement for 51 and 29 days respectively, often with no time out of their cells. These petitions argued the use of lockdowns was a violation of their <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/">Charter rights</a>.</p>
<p>In Diggs’s case the court ruled: “It is not a ‘privilege’ to be out of one’s cell,” it is something imprisoned people are entitled to. The court ruled that the near-daily decision to put the jail on partial or total lockdown is unlawful and unreasonable.</p>
<p>The Mandela Rules state that being held in confinement for more than 15 days without at least four hours per day out of cell, two of which must include meaningful human contact, is prolonged solitary confinement and constitutes torture. </p>
<p>Nova Scotia’s correctional regulations state prisoners are entitled to fresh air for a minimum of <a href="https://novascotia.ca/just/regulations/regs/CORserv.htm">just 30 minutes every day</a>, which falls below the Mandela Rules threshold. According to the recent court ruling, Wilband likely received that minimum on only five occasions over 28 days.</p>
<p><a href="https://digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=1044&context=reports">Another man imprisoned at the facility told researchers</a>: </p>
<blockquote>
<p>“We are locked down every second day because of staff shortages. They let us out of cells in groups, sometimes two or three, sometimes eight. One time the whole range at once was let out, but not usually. Some days no one gets out of their cell at all. The guards say how many people will be let out, but it is up to the prisoners as to who it is who gets out. The younger weaker guys do not even ask to get out because they know they will get beaten up if they take a spot from someone higher in the pecking order.”</p>
</blockquote>
<h2>Impacts of lockdowns</h2>
<p><a href="https://academic.oup.com/bjc/article/62/2/279/6309329">Research finds</a> these kinds of lockdowns can have severe impacts on an inmate’s mental and physical health and well-being. Lockdowns disrupt communication with lawyers, contact with loved ones, access to programs, spiritual and cultural practice, hygiene and medical treatment. Inadequate time out of their cell is associated with <a href="https://www.emerald.com/insight/content/doi/10.1108/IJPH-06-2020-0037/full/html">worse mental health and higher suicide risk</a>. </p>
<p>In another recent decision, <a href="https://www.canlii.org/en/ns/nssc/doc/2023/2023nssc204/2023nssc204.html">Nova Scotia’s Supreme Court stated</a>: </p>
<blockquote>
<p>“Confining persons in custody — many of whom may have pre-existing mental health issues — to their cells for exorbitant periods of time does nothing to assist and support their rehabilitation…Even a person with robust mental health would find it challenging to be regularly confined to a cell, often for more than 20 hours per day, with little notice and no ability to earn more time out. This practice is dehumanizing, and it is setting these individuals up to fail. They deserve better.”</p>
</blockquote>
<h2>Why this ruling is important</h2>
<p>Lockdowns are not new, although reliance on lockdowns in response to institutional issues including staffing and maintenance problems, has <a href="https://globalnews.ca/news/9894823/burnside-jail-staffing-shortage-critical/">increased substantially</a> since the onset of the COVID-19 pandemic. <a href="https://muse.jhu.edu/pub/122/article/908261">In our research</a> we examine these practices and caution that without adequate oversight, they are likely to become a new normal. </p>
<p>Importantly, our research finds that lockdowns often replicate the torturous conditions of solitary confinement, a practice which was <a href="https://theconversation.com/the-end-of-solitary-confinement-in-canada-not-exactly-124679">ended federally</a> through Bill C-83, an amendment to the Corrections and Conditional Release Act, which received royal assent in 2019.</p>
<p>The recent Nova Scotia rulings are significant in that they state operational problems at the institutional level are not sufficient to justify lockdowns. Because a majority of lockdowns are caused by institutional operational issues, not prisoners’ behaviour, lockdowns constitute a “<a href="https://press.princeton.edu/books/paperback/9780691130644/the-society-of-captives">pain of imprisonment</a>” which exceeds the conditions and objectives of custodial sentences. </p>
<p>Lockdowns compound the pains associated with imprisonment, including poor mental and physical health, which impacts community release, reintegration and recidivism.</p>
<p>More lockdowns mean people are subject to practices that amount to torture. <a href="https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510001401&pickMembers%5B0%5D=1.4&cubeTimeFrame.startYear=2021+%2F+2022&cubeTimeFrame.endYear=2021+%2F+2022&referencePeriods=20210101%2C20210101">Almost 80 per cent</a> of the provincial prisoner population in Nova Scotia are in jail awaiting trial, presumed innocent of charges and denied pre-trial release for reasons as simple as a lack of community housing and other supports. </p>
<h2>Recommendations</h2>
<p>Many of the recommendations in the court’s ruling are about ensuring adequate staffing to avoid lockdowns. However, this does not address other operational issues that can trigger lockdowns. An alternative is decreasing prison numbers rather than increasing prison staff, and abolishing solitary confinement altogether.</p>
<p>In 2020, prison numbers were <a href="https://www.cbc.ca/news/canada/nova-scotia/jail-population-cut-in-half-new-covid-19-measures-1.5541732">significantly decreased</a> in Nova Scotia. In total, over <a href="https://atlantic.ctvnews.ca/nova-scotia-prisons-released-41-per-cent-of-inmates-during-pandemic-1.5063557">40 per cent</a> of the provincially incarcerated population was released.</p>
<p>The judiciary, corrections, crown and defense counsels, along with community organizations, <a href="https://theconversation.com/if-canada-is-serious-about-confronting-systemic-racism-we-must-abolish-prisons-141408">collaborated to cut</a> provincial prison numbers. Some imprisoned people went to new supported community residency options, which proved successful even for people with the most complex needs.</p>
<p>Beyond ending these lockdowns, a whole-of-government approach must be taken to foster and sustain community-based alternatives to pre-trial detention and to support other initiatives preventive of imprisonment.</p><img src="https://counter.theconversation.com/content/221852/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>Lockdowns can have severe impacts on an inmate’s mental and physical health and well-being.Jessica Evans, Assistant Professor, Criminology, Toronto Metropolitan UniversityLinda Mussell, Lecturer, Political Science and International Relations, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173472024-01-04T13:45:06Z2024-01-04T13:45:06ZSchool board members could soon be blocked from blocking people − and deleting their comments − on social media<figure><img src="https://images.theconversation.com/files/566311/original/file-20231218-15-v903xy.png?ixlib=rb-1.1.0&rect=0%2C0%2C6877%2C4213&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A California couple sued two school board members who blocked them on Facebook after they made critical remarks.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/laptop-and-colour-speech-bubbles-royalty-free-image/1403128248?adppopup=true">OsakaWayne Studios via Getty Images</a></span></figcaption></figure><p>If a school board member has a social media account, would it be wrong for them to block someone and delete their comments? That’s a question the Supreme Court has decided to take up after public officials, including two school board members, blocked constituents from seeing their accounts or removed critical comments. </p>
<p>At stake is what constitutes state action – or action taken in an official governmental capacity – on social media. Under the First Amendment, officials engaging in state action <a href="https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech">cannot restrict individuals’ freedom of speech and expression</a>. </p>
<p>A ruling in the case, likely to come in spring or early summer 2024, could have broad implications for American society, where nearly three-fourths of the population <a href="https://backlinko.com/social-media-users">use social media in their daily lives</a>. The ruling could also establish whether social media accounts of public officials should be treated as personal or governmental. </p>
<p>In a joint oral argument, the Supreme Court heard <a href="https://www.scotusblog.com/2023/10/justices-consider-liability-for-officials-who-block-critics-on-social-media/">two separate cases on the matter</a>, including the one involving school board members, in late October 2023. Interestingly, lower courts reached opposite outcomes, prompting the question of whether a post on a personal social media page can be considered state action.</p>
<h2>The school board case</h2>
<p>Beginning around 2014, two school board candidates in the Poway Unified School District in San Diego created Facebook and Twitter, now X, pages as part of their campaigns for office. They continued to use them after they were elected to communicate with residents and seek their input. </p>
<p>In 2017, the school board members blocked a couple with children in the district from commenting on their pages. Christopher and Kimberly Garnier <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/27/21-55118.pdf">repeatedly posted criticism</a> on those pages over such issues as the board members’ handling of race relations in the district and alleged financial wrongdoing by the then-superintendent. The Garniers responded to being blocked by filing a lawsuit. </p>
<p>In the resulting case, <a href="https://www.oyez.org/cases/2023/22-324">O'Connor-Ratcliff v. Garnier</a>, the U.S. Court of Appeals for the 9th Circuit affirmed that the two school board members violated the Garniers’ First Amendment rights to free speech and expression. The court rejected the board members’ claims that their accounts were private because they were not controlled by their boards and their posts were not directly related to their official duties.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/566369/original/file-20231218-23-9xvonp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566369/original/file-20231218-23-9xvonp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566369/original/file-20231218-23-9xvonp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566369/original/file-20231218-23-9xvonp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566369/original/file-20231218-23-9xvonp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566369/original/file-20231218-23-9xvonp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566369/original/file-20231218-23-9xvonp.jpeg?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">Christopher and Kimberly Garnier.</span>
<span class="attribution"><span class="source">Courtesy of Cory Briggs</span></span>
</figcaption>
</figure>
<p>The 9th Circuit judges made three points in ruling that the board members violated the First Amendment. First, the pages identified the board members as government officials and displayed their titles prominently. Second, the social media accounts provided information about school activities. And third, the board members solicited constituent input about school matters on the social media pages in question. </p>
<p>However, the court concluded that the board members were not liable for monetary damages. This is because at the time the school board members blocked the Garniers, no court had yet established whether the First Amendment applies to public officials’ speech in the context of social media. It was – and remains – a new frontier in the law.</p>
<h2>Critical comments over COVID-19</h2>
<p>Conversely, in a similar case in Port Huron, Michigan, the 6th Circuit made the opposite ruling.</p>
<p>Years before he was appointed city manager in 2014, a man named James Freed created a personal Facebook page that he eventually made public when he reached the limit of “friends” allowed on Facebook. Once in office, he used the page for both personal and professional reasons, posting updates about his family as well as policies he was working to implement. During the pandemic, constituent Kevin Lindke posted on Freed’s page, <a href="https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0138p-06.pdf">criticizing his handling of the public health crisis</a>. Freed deleted Lindke’s comments and blocked him from the page. Lindke sued.</p>
<p>In <a href="https://www.oyez.org/cases/2023/22-611">Lindke v. Freed</a>, the 6th Circuit affirmed that Freed did not violate the First Amendment in deleting and blocking Lindke’s comments. And like the 9th Circuit in <a href="https://www.oyez.org/cases/2023/22-324">O'Connor-Ratcliff v. Garnier</a>, the court concluded that people’s First Amendment rights to comment on public officials’ social media pages had not yet been established.</p>
<p>The 6th Circuit ruled that Freed posted on his social media page as a private citizen, rather than as a governmental official. The court determined this for three reasons. First, no state law required him to run a social media page. Second, state funds and resources were not used to run the page. And third, the page belonged to Freed as an individual, rather than to the office of city manager – unlike the <a href="https://twitter.com/POTUS">@POTUS</a> page on X, for example. Therefore, the court concluded that the postings did not constitute state action subject to the First Amendment.</p>
<p>In April 2023, the Supreme Court agreed to intervene in both cases.</p>
<h2>The future of the cases</h2>
<p>Both cases not only have consequences for citizens’ First Amendment rights but also for <a href="https://www.vox.com/scotus/2023/10/27/23929468/supreme-court-social-media-twitter-free-speech-content-moderation">social media companies and users</a>. The Court may decide whether social media platforms such as Facebook and X can be liable for allowing a public official to block private citizens from commenting on their accounts.</p>
<p>These cases might also establish rules and standards about how public officials can control their social media accounts and the role of the courts in these disputes.</p>
<p>In a <a href="https://www.supremecourt.gov/DocketPDF/22/22-611/275406/20230815175747110_22-611bsacUnitedStates.pdf">brief supporting the city manager in Lindke v. Freed</a>, the U.S. Department of Justice basically argued that if the government neither owns nor controls the personal social media accounts of public officials, their behavior on the platforms “will rarely be found to be state action.”</p>
<p>The DOJ added that preventing public officials from blocking some messages might make them less willing to speak out about important issues. They warned that this could reduce, rather than enhance, free speech and discourse on matters of public interest, whether in schools or other agencies. </p>
<p>On the other hand, organizations such as the ACLU argue that allowing public officials to restrict comments on social media would be detrimental to democracy by limiting free speech.</p>
<p>“The upshot of the government officials’ argument is that they should have a constitutional blank check to silence or retaliate against their constituents for expressing disfavored viewpoints on social media,” the ACLU <a href="https://www.aclu.org/cases/oconnor-ratcliff-v-garnier-and-lindke-v-freed">wrote about the two cases</a>. “This would give officials a way to short-circuit our most fundamental First Amendment protections.”</p>
<p>Depending on how the court rules, social media may be headed into a new era of who can access and comment on the accounts of public officials.</p><img src="https://counter.theconversation.com/content/217347/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A law scholar examines a pair of Supreme Court cases that pit the public’s free speech rights against politicians’ rights.Charles J. Russo, Joseph Panzer Chair in Education and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2157082023-10-29T23:02:06Z2023-10-29T23:02:06ZDoes Australia need dedicated sexual assault courts?<figure><img src="https://images.theconversation.com/files/555741/original/file-20231025-17-i775en.jpg?ixlib=rb-1.1.0&rect=0%2C11%2C985%2C654&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/witness-stand-184839455">Shutterstock</a></span></figcaption></figure><p>Victim/survivors of sexual assault have always faced an uphill battle in their pursuit of justice.</p>
<p>In being made to retell their assault story over and over, they can be <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">retraumatised</a> and made to <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">wait years</a> for their case to go to trial, delaying their opportunity to heal.</p>
<p>The public watched on as charges against Bruce Lehrmann for the alleged rape of Brittany Higgins (which he denies) were dropped because of concerns for Higgins’ <a href="https://www.theguardian.com/australia-news/2022/dec/02/bruce-lehrmann-retrial-wont-proceed-after-prosecutors-drop-charges-for-alleged-of-brittany-higgins">mental health</a> after a mistrial in 2022.</p>
<p>So is it the case that sexual assault trials simply shouldn’t be conducted in a general criminal court? Does Australia need dedicated facilities instead?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/male-soldiers-cant-help-themselves-is-among-many-rape-myths-that-need-debunking-212568">'Male soldiers can't help themselves' is among many rape myths that need debunking</a>
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</em>
</p>
<hr>
<h2>The harms of a combative court process</h2>
<p>Cross-examination is a vital part of a regular criminal trial. But in sexual assault cases, it can be complicated.</p>
<p>It is the job of defence lawyers to create doubt in the minds of the jury about the victim/survivor and the assault. </p>
<p>This is often done by drawing on popular <a href="https://fullstop.org.au/uploads/main/FSA-submission-to-taskforce-discussion-paper-3.pdf">rape myths</a>, such as: why didn’t you fight back? Was the attacker a stranger? Was a weapon used in the attack? Had you been drinking or taking drugs? What were you wearing?</p>
<p>Jurors can be influenced by this performance – a performance that reflects the attitudes of those in the community who doubt women’s reports of <a href="https://www.anrows.org.au/publication/attitudes-matter-the-2021-national-community-attitudes-towards-violence-against-women-survey-ncas-findings-for-australia/">violence</a>.</p>
<p>It can take a severe toll on victim/survivors.</p>
<p>In one Queensland case, it took <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">eight years</a> and two trials to resolve. </p>
<p>The first trial resulted in a hung jury, and the second in acquittal. The victim/survivor underwent cross-examination twice.</p>
<p>Such an extended court process can have a <a href="https://www.sccjr.ac.uk/wp-content/uploads/2020/08/Delays-in-Trials-SCCJR-Briefing-Paper_July-2020.pdf">massive impact</a> on a victim/survivor’s life. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A courtroom with a view of the scales of justice on a wooden panel." src="https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556253/original/file-20231027-23-1h0l1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Victim/survivors of sexual assault have always faced an uphill battle in their pursuit of justice.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/balance-sign-court-room-1812892960">Shutterstock</a></span>
</figcaption>
</figure>
<p>Many feel they must <a href="https://www.sccjr.ac.uk/wp-content/uploads/2020/08/Delays-in-Trials-SCCJR-Briefing-Paper_July-2020.pdf">delay</a> holiday, career or study plans while they await vital court dates.</p>
<p>It makes it more likely they will <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0008/723842/Hear-her-voice-Report-2-Volume-1.pdf">withdraw</a> their complaint. </p>
<p>The layout of courthouses can also be an issue.</p>
<p>Victim/survivors can be forced to come face-to-face with their alleged attacker due to a lack of alternative entrances and waiting areas.</p>
<h2>Reforms have helped, but not enough</h2>
<p>Reforms over the past 50 years have achieved some improvements in the criminal justice process for victim/survivors. </p>
<p><a href="https://www.anrows.org.au/publication/attitudes-matter-the-2021-national-community-attitudes-towards-violence-against-women-survey-ncas-findings-for-australia/">Research</a> shows that, in some Australian jurisdictions, procedural reforms such as giving evidence via CCTV and closed courtrooms are working. </p>
<p>However, these reforms are inconsistent across jurisdictions. </p>
<p>Core re-traumatising features of trials, such as cross-examination without clear boundaries, remain part of the court experience where trauma-informed reforms have not been introduced. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/jurors-who-believe-rape-myths-contribute-to-dismal-conviction-rates-but-judge-only-trials-wont-solve-the-problem-205066">Jurors who believe rape myths contribute to dismal conviction rates – but judge-only trials won't solve the problem</a>
</strong>
</em>
</p>
<hr>
<h2>Are dedicated courts the answer?</h2>
<p>Some countries, such as South Africa, operate specialist sexual offences courts. Scotland is setting up a pilot specialist court.</p>
<p>The benefit of these courts is that all court personnel are <a href="https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6">trauma-informed</a> and can deal with complex social issues and laws.</p>
<p>One early <a href="https://pubmed.ncbi.nlm.nih.gov/15961155/">evaluation</a> in South Africa shows 94.9% of victim/survivors were satisfied with prosecutors, and 87.5% were satisfied with their preparation for trial. </p>
<p>Almost all felt totally or fairly safe at court. </p>
<p>Only 20% found the defence attorney intimidated them, and less than a third felt their personal dignity was insulted during cross-examination. </p>
<p>South Africa also implements “juryless” trials, heard by a judge and a two-person lay panel, which may be a factor in the favourable findings. </p>
<p>Specialists courts can also reduce <a href="https://aija.org.au/wp-content/uploads/2023/10/Specialist-Approaches-to-Managing-Sexual-Assault-Proceedings_An-Integrative-Review_05.pdf">delays</a>. </p>
<p>Yet there are risks to such a narrow approach.</p>
<p>It may lead to a gradual loss of more general legal skills and too narrow a focus, which may result in <a href="http://classic.austlii.edu.au/au/journals/UQLRS/2016/5.html">biased</a> decision-making.</p>
<p>In fact, it may not be necessary to create a separate standalone court to get better outcomes. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1598490165672292352"}"></div></p>
<p><a href="https://aija.org.au/publications/specialist-approaches-to-managing-sexual-assault-proceedings-an-integrative-review/">Research</a> has shown trauma-informed training is necessary for court personnel to understand and help prevent victim/survivor retraumatisation. </p>
<p>This can be achieved within the existing court system.</p>
<p>Regular courts can have a “specialist approach” - a different way of running proceedings for sexual assault cases that better meet the needs of victim/survivors. </p>
<p>This can be on specific days of the week around normal court operations.</p>
<p>Significantly, having a separate specialist approach within the general criminal court system to deal exclusively with sexual assault cases may introduce positive <a href="https://aija.org.au/publications/specialist-approaches-to-managing-sexual-assault-proceedings-an-integrative-review/">culture change</a>. </p>
<p><a href="https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6">Studies</a> indicate a comprehensive specialist approach may be the missing link in reforming the adversarial system.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-mark-188235">Rape is endemic in South Africa. Why the ANC government keeps missing the mark</a>
</strong>
</em>
</p>
<hr>
<h2>More to do to improve court experiences</h2>
<p>Our <a href="https://aija.org.au/wp-content/uploads/2023/10/Specialist-Approaches-to-Managing-Sexual-Assault-Proceedings_An-Integrative-Review_05.pdf">review</a> of international practice identified a range of things Australia could do to significantly improve victim/survivors’ experiences in the criminal justice system. </p>
<p>These include:</p>
<ul>
<li><p>specialist trauma-informed training for all court personnel, including defence counsel</p></li>
<li><p>measures to better inform victim/survivors about their case, and improve communication</p></li>
<li><p>linking victim/survivors to support services and providing safe court facilities</p></li>
<li><p>specialists (called “intermediaries”) who can help victim/survivors understand court processes</p></li>
<li><p>specialist case management, including ground rules hearings to address inappropriate questioning in cross-examination</p></li>
<li><p>pre-recorded evidence. </p></li>
</ul>
<p>Standalone sexual assault courts would be one way of implementing these measures, but it’s not the only way.</p>
<p>Specialist approaches with trauma-informed legal staff would also put these actions into place without the need for a dedicated court. </p>
<p>Introducing these measures wouldn’t fix everything, but it’s certainly a starting point to help reduce the harm that’s too often compounded by court proceedings.</p><img src="https://counter.theconversation.com/content/215708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vicki Lowik and Amanda-Jane George received funding from the Australasian Institute of Judicial Administration and Commonwealth Attorney-General's Department for the report on which this article is based.</span></em></p><p class="fine-print"><em><span>Amanda-Jane George 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>Sexual assault trials can compound a victim/survivors trauma, drag on for years and bring them face to face with their attacker. Is having dedicated sexual assault courts the answer?Vicki Lowik, Research Officer, Queensland Centre for Domestic and Family Violence Research, CQUniversity AustraliaAmanda-Jane George, Postgraduate Research Coordinator, Senior Lecturer in Innovation & Intellectual Property Law, School of Business and Law, CQUniversity AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2124222023-09-21T12:43:48Z2023-09-21T12:43:48ZTraffic tickets can be profitable, and fairness isn’t the bottom line in city courts where judges impose the fines<figure><img src="https://images.theconversation.com/files/547636/original/file-20230911-19-g0j5s5.jpg?ixlib=rb-1.1.0&rect=6%2C0%2C4013%2C2999&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A police officer pulls over and tickets a delivery person in the New York City borough of Queens on March 22, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/doordash-delivery-person-pulled-over-by-traffic-police-and-news-photo/1480061224?adppopup=true">Lindsey Nicholson/UCG/Universal Images Group via Getty Images</a></span></figcaption></figure><p>When city governments spend more money than they take in, officials often search for ways to generate revenue. One <a href="https://doi.org/10.1177/1078087419834632">increasingly common source</a> of money is traffic tickets. And <a href="https://doi.org/10.2139/ssrn.961967">research shows police officers issue more traffic tickets</a> when cities are financially in a deficit. </p>
<p>But police represent only one aspect of this revenue-generating system. Judges and their courts also use traffic citations to generate money for the cities that employ them.</p>
<p>As <a href="https://scholar.google.com/citations?user=D2biqfmENKAC&hl=en">scholars of public finance</a>, we study <a href="https://scholar.google.com/citations?user=_5eMV20AAAAJ&hl=en">how cities raise money</a> to pay for their operations. Our <a href="https://doi.org/10.1111/puar.13595">new research</a> indicates that judges in cities facing red ink often use their positions to maximize revenue from traffic tickets. They can do this by adding financial penalties to unpaid tickets. Judges often use the extra penalties to encourage people to pay.</p>
<p>The process of generating dollars through traffic tickets, though, begins with the police.</p>
<h2>Revenue-motivated policing</h2>
<p><a href="https://www.bjs.gov/index.cfm?tid=702&ty=tp">Traffic violations are common</a>. Whether drivers fail to signal a turn or drive a few miles per hour above the speed limit, it is not difficult for police to find someone who violated a traffic law. Officers have the discretion to pick and choose when to ticket and can adjust the number of tickets they issue based on factors that are not related to whether someone broke the law. </p>
<p>Those factors include the <a href="https://doi.org/10.1038/s41562-020-0858-1">race of the driver</a> or the <a href="https://doi.org/10.1177/1098611107306995">racial makeup of the neighborhood</a> the officers are patrolling. Usually, this means African American drivers and drivers in neighborhoods with more African American residents <a href="https://doi.org/10.2139/ssrn.3355599">are ticketed at higher rates</a> than other people.</p>
<p>Another factor affecting ticketing, but unrelated to whether drivers are breaking traffic laws, is the budgetary situation of the city.</p>
<p>One high-profile example of how a city’s use of traffic tickets can be a problem is Ferguson, Missouri. According to a 2015 Department of Justice report, “<a href="https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf">Ferguson’s law enforcement practices are shaped</a> by the city’s focus on revenue rather than by public safety needs.” And those practices affected African Americans disproportionately. According to that report, African Americans made up 67% of the city’s population at the time, but they were the subjects of 85% of traffic stops, 90% of the tickets, 92% of the warrants police issued and 96% of the arrests.</p>
<p>Ferguson was neither the first nor the only local government to replenish its coffers <a href="https://doi.org/10.1086/589702">through traffic tickets</a>. In the years since that federal report, numerous studies <a href="https://doi.org/10.1111/puar.13125">have shown that</a> police and other city personnel <a href="https://doi.org/10.1111/lapo.12228">increase the volume of traffic tickets</a> they issue based on <a href="https://doi.org/10.1111/puar.13125">budgetary need</a>. </p>
<figure class="align-center ">
<img alt="A long line of uniformed police officers stand with their backs to range cones as they speak individually to the motorists in the cars parked in front of them." src="https://images.theconversation.com/files/547634/original/file-20230911-17-cyckg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/547634/original/file-20230911-17-cyckg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547634/original/file-20230911-17-cyckg4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547634/original/file-20230911-17-cyckg4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547634/original/file-20230911-17-cyckg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547634/original/file-20230911-17-cyckg4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547634/original/file-20230911-17-cyckg4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">San Francisco police officers check drivers at a sobriety checkpoint on Dec. 26, 2004.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/san-francisco-police-officers-check-drivers-at-a-sobriety-news-photo/51895744?adppopup=true">Justin Sullivan/Getty Image</a></span>
</figcaption>
</figure>
<p><a href="https://doi.org/10.1093/aler/ahaa001">The practice is actually so common</a> that it has several names: “<a href="https://www.forbes.com/sites/instituteforjustice/2020/06/12/policing-should-not-be-about-generating-profit/">policing for profit</a>” and “<a href="https://news.clemson.edu/clemson-research-cites-shortfalls-of-revenue-motivated-law-enforcement/">revenue-motivated policing</a>” among them.</p>
<p>After a police officer tickets a driver, the process moves to a court.</p>
<h2>Ticketing incentives in court</h2>
<p>In some cases, the court that will process traffic tickets is operated by the state; in others, it is operated by the municipality. Regardless, the court is <a href="https://doi.org/10.1111/pbaf.12277">responsible for collecting money from traffic tickets</a>.</p>
<p>But which court hears the case matters quite a bit. If a traffic ticket is settled in a state court, the money from fees is divided across the state and its various local governments. But if that same ticket is settled in a municipal court, then the vast majority of the money goes to the city.</p>
<p>Our <a href="https://doi.org/10.1111/puar.13595">research</a> examined how this difference affected traffic tickets in Indiana. Like <a href="https://doi.org/10.1177/1078087419834632">prior research</a>, we found that police from cities facing revenue shortages issued more tickets. But we showed that this only happened when cities ran their own municipal courts. Put another way, the <a href="https://ij.org/wp-content/uploads/2019/10/Taxation-by-Citation-FINAL-USE.pdf">police are only more likely to ticket when it is profitable for</a> the cities they serve.</p>
<p>We also examined how judges use their power to collect more money.</p>
<p>Ferguson once again provides <a href="https://www.npr.org/2014/08/25/343143937/in-ferguson-court-fines-and-fees-fuel-anger">an example of how authorities can abuse this power</a>. As detailed <a href="https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf">in the Justice Department report</a>, judges did not consider a person’s financial status when levying penalties or setting payment deadlines. They also aggressively applied optional fees for late payments. Lastly, judges and police officers provided incorrect or incomplete information about when or whether defendants were required to appear in court. That meant defendants often racked up additional fees – and sometimes arrest warrants – for failure to appear.</p>
<p>Our research explored whether the problems in Ferguson happened elsewhere. We studied Indiana, where judges can suspend defendants’ driver’s licenses if they have not paid their fines. <a href="https://dc.uwm.edu/eti_pubs/4">This is a powerful, but potentially harmful, way to coerce payment</a>. We counted the number of days judges waited before suspending a driver’s license. Then, we looked at whether the city was experiencing a revenue shortfall. We found that judges suspend licenses faster when their cities need more money. The effect was pretty large: A 1% decrease in revenue caused licenses to be suspended three days faster.</p>
<p>Indiana’s property tax system places limits on the amount of revenue cities can collect through property taxes, and cities do not discover how much of their property tax levy they will be able to collect until after the city budget process is complete. This system allowed us to compare cities facing different levels of revenue shortfalls due to state-imposed reductions in property tax revenues.</p>
<figure class="align-center ">
<img alt="The words Court House are etched onto a concrete wall." src="https://images.theconversation.com/files/549447/original/file-20230920-29-em1ks5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549447/original/file-20230920-29-em1ks5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=362&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549447/original/file-20230920-29-em1ks5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=362&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549447/original/file-20230920-29-em1ks5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=362&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549447/original/file-20230920-29-em1ks5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=455&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549447/original/file-20230920-29-em1ks5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=455&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549447/original/file-20230920-29-em1ks5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=455&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">An undated photo shows the exterior wall of a courthouse building.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/the-words-court-house-etched-into-stone-wall-royalty-free-image/1464181858?adppopup=true">Chris Jongkind/via Getty Images</a></span>
</figcaption>
</figure>
<h2>The bottom line</h2>
<p>In some cities and states, officials operate their courts – not just the police department – <a href="https://doi.org/10.1111/pbaf.12277">to generate revenue</a>. We believe this is inherently a problem. The criminal justice system should exist to maximize public safety, not revenue.</p>
<p>But if states change the rules about who keeps the money generated by traffic tickets and related fines, the incentives for revenue maximization go away. </p>
<p>Our research bears this out. Judges will have no reason to suspend licenses faster when their cities are facing a budget crunch if the revenue goes to the state. </p>
<p>This change won’t fix everything. <a href="https://doi.org/10.1111/josi.12355">Racial bias in the criminal justice system will still be pervasive</a>. But it could help get rid of policing - and judging - for profit.</p><img src="https://counter.theconversation.com/content/212422/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>Research shows police officers issue more traffic tickets and judges impose more fines when their city gets the money and when the budget is tight.Sian Mughan, Assistant Professor of Public Affairs, Arizona State UniversityAkheil Singla, Assistant Professor at the School of Public Affairs, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2050662023-05-10T14:49:14Z2023-05-10T14:49:14ZJurors who believe rape myths contribute to dismal conviction rates – but judge-only trials won’t solve the problem<figure><img src="https://images.theconversation.com/files/524403/original/file-20230504-21-17t77o.jpg?ixlib=rb-1.1.0&rect=112%2C51%2C5639%2C3776&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>After years of <a href="https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation/">consultations</a> and <a href="https://www.gov.scot/groups/lady-dorrian-review-governance-group/">reports</a>, the Scottish government is proposing to conduct a pilot to test out running rape trials with just a judge – and no jury. </p>
<p>The conviction rate in Scotland for rape and attempted rate is woefully low. Only <a href="https://www.rapecrisisscotland.org.uk/resources-stats-key-info/#:%7E:text=Only%2051%25%20of%20rape%20and,prosecutions%20and%20just%2078%20convictions">51% of trials</a> lead to a conviction, which is simply not acceptable in a modern justice system. Reform is clearly needed to increase convictions. </p>
<p>The idea to run juryless trials is tied to concerns that this low conviction rate is in part due to <a href="https://www.scottishlegal.com/articles/politicians-plans-to-keep-tabs-on-juryless-trials-mark-serious-attack-on-independence-of-judiciary-says-former-judge">rape myths held by jurors</a>. Rape myths are <a href="https://journals.sagepub.com/doi/abs/10.1177/0886260511403762?journalCode=jiva">false beliefs</a> about rapists, people who have been raped and the act of rape or sexual assault itself. It’s the belief that people who have been raped are at fault if they wore “revealing” clothing, for example. It’s an assumption that people commonly lie about being raped <a href="https://www.researchgate.net/publication/264124085_A_systematic_review_of_juries'_assessment_of_rape_victims_Do_rape_myths_impact_on_juror_decision-making">for revenge purposes</a>.</p>
<p>Research has consistently shown that rape myths <a href="https://journals.sagepub.com/doi/pdf/10.1177/1365712720923157">influence juror decision-making</a>. The more accepting of rape myths a juror is, the more likely they are to judge the accused with a <a href="https://www.researchgate.net/publication/264124085_A_systematic_review_of_juries'_assessment_of_rape_victims_Do_rape_myths_impact_on_juror_decision-making">not guilty verdict</a>.</p>
<p>Jurors who believe, for example, that intoxicated people are partially to blame if they are assaulted, that male sexuality is “uncontrollable” or that rape only ever happens as a violent crime committed by a stranger are <a href="https://journals.sagepub.com/doi/pdf/10.1177/1365712720923157">more likely to give a not guilty verdict in rape trials</a>. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-do-so-many-men-get-away-with-rape-police-officers-survivors-lawyers-and-prosecutors-on-the-scandal-that-shames-the-justice-system-192782">Why do so many men get away with rape? Police officers, survivors, lawyers and prosecutors on the scandal that shames the justice system</a>
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<p>It is not only jurors who are affected by rape myths, however. Judges are, after all, also human. They are fallible and could be potentially influenced by rape myths. Therefore, it is unlikely that judge only trials will stop the role that rape myths may play in decisions about verdicts.</p>
<p>Psychological research has shown that experts develop routine and automatic cognitive short cuts so as to make their <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">decision-making fast, efficient (and often accurate)</a>. Through experience, experts learn what information to use and what information to ignore, which allows their decision making to become more efficient. However, this efficient cognitive system can sometimes filter out important pieces of information incorrectly (such as when a particular case has an abnormal feature or the expert does not have experience of a particular case issue). It can lead to overconfidence, which can make the <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">decision maker less likely to take advice from others</a>. Expertise can be paradoxical in this way. It can lead to an over-reliance in bias. </p>
<p>Judges and other legal experts <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">are therefore not immune to bias</a>. <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/bdm.371">Research</a> has found that the decisions made by magistrates, for example, are more aligned with <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/bdm.371">biased decision-making models</a> than rational decision-making models. Their decisions are inconsistent across their own caseload and inconsistent when compared to the decision-making of other magistrates. If their decisions had been rational, we could expect significantly more consistency.</p>
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<img alt="A judge's gavel and sounding block." src="https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Judge-only trials are a novel concept in the UK.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>Extra-legal factors, even trivial ones such as whether judges have had lunch, have been shown to <a href="https://pubmed.ncbi.nlm.nih.gov/21482790/">bias judges’ decisions</a>. And despite their prevalence, judges have rarely been shown to <a href="https://www.jstor.org/stable/10.1525/nclr.2010.13.4.710">counter rape myths</a> in their courtrooms. Together, the evidence makes clear that there is reasonable doubt as to whether juryless trials will positively influence rape trials.</p>
<h2>Flawed pilot</h2>
<p>The pilot is also unlikely to give an accurate reflection of what would happen were juries to be removed from rape trials.</p>
<p>Government ministers will review the results of the pilot to see if the conviction rate climbs, which is, in itself a serious problem. Any potential review of judicial decisions by ministers may undermine the independence of the judiciary. Likewise, it may potentially bias (explicitly or implicitly) judges into reaching guilty verdicts during the pilot. This pressure may also lead to an inflation of convictions during the pilot, which may not continue post-pilot once supervision from the executive is removed – hardly ideal conditions for establishing fair legal procedures from the perspective of either the accused or the accuser. </p>
<p>Judges are also likely to be more aware of the low conviction rates in rape trials than jurors, again, leading to a pressure on the decision maker to convict. This pressure or bias would outlive the pilot. Retired judge, Lord Uist, <a href="https://www.scottishlegal.com/articles/politicians-plans-to-keep-tabs-on-juryless-trials-mark-serious-attack-on-independence-of-judiciary-says-former-judge">recently made similar warnings</a>.</p>
<p>The change being proposed is a drastic one, yet it is unlikely to benefit anyone. From a complainer’s perspective, it is unlikely that the conviction rates will increase dramatically (due to rape myths influencing the judiciary). If they do, this change will be caused by pressure in the system for an increase in convictions and not due to a more rational or fair evaluation of the evidence from the decision maker.</p>
<p>The accused, meanwhile, will no longer be judged by a jury of their peers, rather their fate will be made by a legal professional, employed by the state. That means only a certain view of the world will inform the decision that will drastically alter their life, rather than multiple perspective from all avenues of society.</p>
<p>The change may even decrease confidence in the jury system more generally. Why are jurors competent enough to reach verdicts in murder trials but not rape trials, members of the public may ask. Juryless trials in rape cases may be the first step to the removal of jury trials all together. </p>
<p>A jury selection process would be an alternative strategy for increasing convictions in rape trials and for attenuating the role that rape myths play. Jurors who display a tendency towards rape myths would be screened for and removed from the jury pool using scientific measures such as the <a href="https://journals.sagepub.com/doi/full/10.1177/15248380211050575">Illinois Rape Myth Acceptance scale</a>. This would be a sounder approach than removing juries. In combination with this, rape myths can also be targeted by educating both prospective jurors and young people in schools – and even judges – about the dangers of rape myth. Hopefully education would also remove rape myths from society before individuals are selected to be jurors.</p><img src="https://counter.theconversation.com/content/205066/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>A Scottish pilot will see rape trials conducted without juries in what could set a dangerous precedent.Lee John Curley, Lecturer in Psychology, The Open UniversityJames Munro, Psychology Lecturer, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932282023-01-04T19:22:25Z2023-01-04T19:22:25ZHigh, Supreme, Federal, Family, County – what do all our different courts actually do?<p>One way to understand how the courts in Australia are ranked is to imagine a pyramid and an umbrella. </p>
<p>Let’s start with the pyramid. Imagine three lines horizontally across the pyramid dividing it into four sections. Each section represents a court of each state or territory.</p>
<p>So what’s on the base of the pyramid, and what are the upper layers?</p>
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Read more:
<a href="https://theconversation.com/a-constitutional-voice-to-parliament-ensuring-parliament-is-in-charge-not-the-courts-193017">A constitutional Voice to Parliament: ensuring parliament is in charge, not the courts</a>
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<h2>The Local or Magistrates Courts</h2>
<p>The bottom section represents the local or magistrates courts. It is biggest because it deals with the vast majority of court cases in Australia.</p>
<p>There is a single judicial officer presiding, and no jury. The bread and butter of these courts are minor crimes such as traffic offences, lesser assaults, shoplifting and possession of prohibited drugs. </p>
<p>These courts also have other roles including being children’s and coroners’ courts. They also deal with less serious civil disputes, where one person or company is suing another (under certain limits; in New South Wales, for example, that limit is A$100,000). </p>
<p>Local courts also deal with apprehended violence and restraining orders. The maximum sentence that can be handed out by a judge in a local court is generally two years imprisonment. </p>
<p>The other reason the bottom section of the pyramid is biggest is because all criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial. </p>
<h2>The District Court</h2>
<p>The next section up the pyramid represents the District Court. </p>
<p>They deal with more serious crime such as sexual assault, major drug supply and high-level violence. </p>
<p>If the person on trial doesn’t plead guilty, there is a jury to determine guilt or innocence. </p>
<p>The district court also deals with serious civil disputes, generally where the amount is up to $750,000.</p>
<h2>The Supreme Court</h2>
<p>The Supreme Court is the next layer of the pyramid. It deals with the most serious civil and criminal cases, such as murder. They mostly have a jury in criminal cases.</p>
<p>They also deal with some specialty areas such as defamation.</p>
<h2>The Courts of Appeal</h2>
<p>Finally, there is the Courts of Appeal, which are part of the Supreme Court, but sit above it.</p>
<p>They hear appeals from lower courts, and there are usually three judges sitting on each matter. </p>
<p>The really interesting aspect of the pyramid is that it represents not just more seriousness and less volume as you go up, but also the appeal process.</p>
<p>So, if you want to appeal from the Local Court, then you go the District Court, then from the District to the Supreme Court and so on.</p>
<p>The “<a href="https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/">doctrine of precedent</a>” means rulings from higher courts are binding on lower ones. </p>
<h2>The High Court and the umbrella model</h2>
<p>But what if you want to appeal from the Court of Appeal? That’s where the umbrella comes in. </p>
<p>That appeal is to the High Court, which you can imagine as an umbrella that sits over each of the state or territory pyramids. </p>
<p>There is one High Court, based in Canberra, and its decisions are final, and binding throughout all parts of Australia. </p>
<p>Fun fact: up until the 1980s the highest court for Australia was in England! Called the Privy Council, it was possible to appeal from state and federal courts and let English law lords be the final decider. But Australia got rid of that system and now the highest court in the land is the High Court.</p>
<h2>Some state-based variations</h2>
<p>Is it all that simple? Not really.</p>
<p>First, in Tasmania the Australian Capital Territory and the Northern Territory there is no District Court level at all. These are small states and territories, with not enough people to necessitate this level of the pyramid.</p>
<p>Second, sometimes appeals jump a level. For example, they may go straight from the Local Court to the Supreme Court. And in some states, there are different names for each level. In Victoria the District Court is called the County Court, and in some places like the Northern Territory, magistrates are called judges. </p>
<p>Finally, there are some specialty courts like the NSW Land and Environment Court that sit at Supreme Court level. </p>
<h2>Hang on, what about federal courts?</h2>
<p>Just when you thought you had your pyramids in a row, along comes another complication: the federal system. </p>
<p>The Constitution divides up powers between the states and the Commonwealth.</p>
<p>The best example is family law, which is allocated to the Commonwealth and so the Federal Court system deals with divorce and related matters. </p>
<p>And so there is another pyramid which works across the whole country only this time it has two levels.</p>
<p>The lowest and biggest level is the <a href="https://www.fcfcoa.gov.au/">Federal Circuit and Family Court of Australia</a>, dealing mostly with family law (but also other federal matters such as immigration and welfare law).</p>
<p>The next level up is the Federal Court, which deals mainly with corporations law, bankruptcy and trade practices as well as hearing appeals from the lower court. </p>
<p>Don’t forget the umbrella, the High Court, which also hears appeals from the Federal Court. </p>
<h2>A whole myriad of tribunals</h2>
<p>I’m sorry to have to tell you it gets even more complex from there. There are also tribunals.</p>
<p>Sitting beneath the state, territory and federal court systems is a whole myriad of tribunals which deal with non-criminal matters. </p>
<p>New South Wales, for example, has the New South Wales Civil and Administrative Tribunal (NCAT), which deals with tenancy, consumer, guardianship, strata and licensing matters. It even has its own appeal panel as well (and if people still aren’t happy, they can then appeal to the courts).</p>
<p>The members of the tribunal are not judicial officers and are appointed for fixed periods. </p>
<p>Of course, if you were to strike out centuries of history and start afresh, you would likely just have one multilayered pyramid across the country with a single tribunal at the foot, and the High Court at the top.</p>
<p>We can live in hope. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143">Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations</a>
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<img src="https://counter.theconversation.com/content/193228/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Heilpern 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>All criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial.David Heilpern, Associate Professor and Chair of Discipline (Law), Southern Cross UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1574282021-03-25T04:01:13Z2021-03-25T04:01:13ZSexual assault victims can easily be re-traumatised going to court — here’s one way to stop this<figure><img src="https://images.theconversation.com/files/391597/original/file-20210325-15-w6k8nf.jpg?ixlib=rb-1.1.0&rect=0%2C71%2C3976%2C2335&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>As federal parliament has been <a href="https://www.smh.com.au/politics/federal/brittany-higgins-audio-recordings-reveal-why-she-stayed-quiet-about-alleged-rape-20210322-p57d3e.html">rocked by allegations</a> of sexual violence, one of the frequent questions has been “why don’t victims go to police?” </p>
<p>But this is not a straightforward or easy solution. And victims can easily end up being re-traumatised by going through the criminal justice system. </p>
<p>How can we make going to court better for those seeking justice? One critical way is to provide victims with their own lawyers. </p>
<p>What many people may not realise, is that throughout the legal process, victims are simply assigned a lawyer through the Director of Public Prosecutions.
This means they do not have access to their own lawyers to protect their privacy and individual interests at trial. </p>
<h2>Women’s fears and community mistrust</h2>
<p>According to the Australian Bureau of Statistics, <a href="https://theconversation.com/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">almost 90%</a> of women do not report their sexual assault to police.</p>
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Read more:
<a href="https://theconversation.com/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">Almost 90% of sexual assault victims do not go to police — this is how we can achieve justice for survivors</a>
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<p>One of the reasons victims do not report sexual violence — or delay reporting — is fear they will <a href="https://theconversation.com/delays-in-reporting-alleged-rapes-are-common-even-years-later-this-isnt-a-barrier-to-justice-156201">not be believed</a>. This does not come out of nowhere. </p>
<p>According to a 2017 national survey, there is a widespread <a href="https://20ian81kynqg38bl3l3eh8bf-wpengine.netdna-ssl.com/wp-content/uploads/2019/12/anr001-NCAS-report-WEB-1019.pdf">mistrust</a> of women’s reports of violence by the community, even though evidence shows <a href="https://apo.org.au/sites/default/files/resource-files/2017-09/apo-nid107216_1.pdf">false reports are rare</a>. </p>
<h2>The DPP has significant powers</h2>
<p>Even for those who do report, the ability for victims to get justice is out of their hands. </p>
<p>The Director of Public Prosecutions has significant discretionary powers, including the ability to decide whether a criminal case should proceed and how it will be prosecuted. The reality is victims have no control or ability to <a href="https://www.theaustralian.com.au/business/legal-affairs/victims-deserve-a-right-of-review/news-story/fa57f46ff343f77feec8b5f11db35518">challenge</a> prosecutors’ decision-making.</p>
<p>For cases that proceed to prosecution, victims’ experiences are generally negative. This is due to insensitive treatment by criminal justice personnel, including <a href="https://www.theaustralian.com.au/inquirer/sluts-and-nuts-defence-still-part-of-the-tactics/news-story/566388d461cfdd3ca1f00503d4d700d1">defence lawyers</a>.</p>
<p>Compounding this are the <a href="https://www.routledge.com/Adversarial-Justice-and-Victims-Rights-Reconceptualising-the-Role-of-Sexual/Iliadis/p/book/9780367204181">myths and stereotypes</a> that underpin [<a href="https://www.independent.co.uk/news/uk/crime/rape-sexual-history-assault-cross-examine-trial-court-voices4victims-plaid-cymru-mp-liz-savile-a7570286.html">intrusive defence questioning</a>] at trial. These include questions about victims’ sexual history, used to create a <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895819880953?journalCode=crjb">false perception</a> the victim consented to sexual activity or is the “type” of person who is more likely to <a href="https://theconversation.com/amp/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">consent</a>.</p>
<p>This is also a reason why so few <a href="https://www.theguardian.com/australia-news/2021/mar/17/the-rule-of-law-how-the-australian-justice-system-treats-sexual-assault-survivors">convictions</a> are reached. </p>
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<strong>
Read more:
<a href="https://theconversation.com/consent-laws-arent-the-reason-for-low-sexual-assault-conviction-rates-its-how-society-views-rape-itself-157689">Consent laws aren't the reason for low sexual assault conviction rates — it's how society views rape itself</a>
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<h2>Women are re-traumatised</h2>
<p>Given victims are disclosing highly personal and distressing details about their assaults, and potentially being subjected to fierce cross-examination at trial, they are often <a href="https://theconversation.com/survivors-of-sexual-violence-are-let-down-by-the-criminal-justice-system-heres-what-should-happen-next-94138">re-traumatisated</a> by going to court. </p>
<p>This intensifies the barriers women face reporting and having their stories heard, which further denies them validation and control. </p>
<p>As US psychiatrist <a href="https://pubmed.ncbi.nlm.nih.gov/16043563/">Judith Herman</a> has noted, </p>
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<p>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>
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<h2>The adversarial system</h2>
<p>The <a href="https://lawhandbook.sa.gov.au/ch27s05.php">adversarial nature</a> of Australia’s criminal justice systems means crime is contested between two parties: the state who prosecute in the public interest and the accused person. </p>
<p>This means the victim is not considered a party to proceedings, despite being directly impacted by the offence, and therefore does not have an active role or voice. </p>
<p>Courts have a duty to protect victims from certain misleading, intimidating and humiliating questioning, such as in relation to victims’ <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/s352.html">sexual history</a> and <a href="https://journals.sagepub.com/doi/pdf/10.1177/0022018317728824">character</a>. </p>
<p>However, <a href="https://bridges.monash.edu/articles/journal_contribution/Development_of_the_Office_of_Commissioner_of_Victims_Rights_as_an_Appropriate_Response_to_Improving_the_Experiences_of_Victims_in_the_Criminal_Justice_System_Integrity_Access_and_Justice_for_Victims_of_Crime/8325155">research shows</a> defence counsel continue to ask such questions to undermine victims’ character and testimony. </p>
<h2>Calls for victim lawyers</h2>
<p>Scholars and victim advocates, including women’s specialist and legal services, have raised <a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/ALRC114_WholeReport.pdf">concerns</a> over the lack of judicial intervention. </p>
<p>This has led to calls for government-funded legal representation to enhance victims’ treatment in the legal process and reduce the likelihood — or extent of —re-traumatisation. </p>
<figure class="align-center ">
<img alt="Woman walking, looking concerned on phone." src="https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/391602/original/file-20210325-15-1c47c50.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Victim lawyers are used in other legal systems, particularly in Europe.</span>
<span class="attribution"><span class="source">www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>If victims can be assured their privacy and interests will be protected, they might be more inclined to report and/or stay engaged in the criminal justice system. Having a lawyer present at trial may also decrease victims’ feelings of stress and anxiety and improve their confidence when testifying. </p>
<p>As former South Australian Commissioner for Victims’ Rights, <a href="https://aija.org.au/wp-content/uploads/2017/08/OConnell2.pdf">Michael O’Connell</a>, has argued, legal representation can allow victims to feel like </p>
<blockquote>
<p>integral players […] rather than mere bystanders in the criminal justice system.</p>
</blockquote>
<h2>Victim lawyers around the world</h2>
<p>There are several different models of legal representation for victims around the world. </p>
<p>In the German system, victims of sexual offences <a href="https://www.abc.net.au/radionational/programs/lawreport/10980050">can engage lawyers</a> who have <a href="http://www.austlii.edu.au/au/journals/CICrimJust/2014/6.pdf">rights to represent them</a>, including the ability to elicit evidence and ask questions of the accused person at trial. In <a href="https://link.springer.com/book/10.1007/978-3-030-04546-3">Denmark and Sweden</a>, victims of sexual offences also have the right to engage a lawyer from as early as the police reporting stage, to receive advice about the legal process and compensation claims, as well as moral support. </p>
<figure class="align-center ">
<img alt="Lady Justice statute in Frankfurt." src="https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/391618/original/file-20210325-19-kju6t3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Victims have a much more powerful role in German criminal trials.</span>
<span class="attribution"><span class="source">www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>The right to victim lawyers in adversarial systems - like Australia’s — is less common. Victim lawyers are available in <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895819851848">Ireland</a> to prevent the disclosure of victims’ sexual history evidence in court. England and Wales also recently <a href="https://needisclear.files.wordpress.com/2020/11/svca-evaluation-final-report-1.pdf">piloted</a> provision for victim lawyers, as has Northern Ireland. </p>
<p>In <a href="https://www.legalaid.qld.gov.au/Find-legal-information/Personal-rights-and-safety/Protecting-sexual-assault-counselling-records">Queensland</a> and <a href="https://www.legalaid.nsw.gov.au/what-we-do/civil-law/sexual-assault-communications-privilege-service">New South Wales</a>, sexual assault victims can be legally represented when challenging defence applications for the disclosure of their counselling notes and other confidential therapeutic records. However, this representation does not extend to the actual criminal trial. </p>
<h2>Resistance to the idea</h2>
<p>Despite the <a href="https://www.routledge.com/Adversarial-Justice-and-Victims-Rights-Reconceptualising-the-Role-of-Sexual/Iliadis/p/book/9780367204181">benefits</a> of lawyers for victims, <a href="https://theconversation.com/lawyers-for-victims-of-crime-wont-guarantee-better-results-27629">concerns</a> about practical implications remain. </p>
<p>This is due to the perceived threat a third party — a victim’s lawyer — might pose to the two-sided contest between the state prosecutor and the accused person. There are concerns the system would become unbalanced. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/delays-in-reporting-alleged-rapes-are-common-even-years-later-this-isnt-a-barrier-to-justice-156201">Delays in reporting alleged rapes are common — even years later. This isn't a barrier to justice</a>
</strong>
</em>
</p>
<hr>
<p>In 2016, the Victorian Law Reform Commission <a href="http://lawreform.vic.gov.au/sites/default/files/VLRC_Victims%20Of%20Crime-Report-W_0.pdf">opposed the idea</a> on the basis police and prosecutors are already obliged <a href="http://classic.austlii.edu.au/au/journals/MonashULawRw/2011/29.html">to keep victims informed</a> about the legal process and victim lawyers might lead to “<a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-6478.2005.00325.x">dual representation</a>”. </p>
<p>However, this fails to recognise victims have legitimate interests that might compete with the interests of the prosecution, who represent the public interest.
These include rights to privacy about their personal records and prior sexual history, and to be free from character attacks during cross-examination at trial.</p>
<p>While it may not be viable, at present, to introduce victim lawyers throughout the entire prosecution process, there is certainly scope to introduce them at specific stages. </p>
<h2>Change that is positive and possible</h2>
<p>In the first instance, we need social and cultural change to quash the myths and stereotypes about sexual violence. They prevent victims from reporting and undermine investigations, prosecutions and victim experiences. </p>
<p>In the meantime, introducing victim lawyers is a practical, possible change we can make to enhance victims’ well-being, safety and access to justice.</p><img src="https://counter.theconversation.com/content/157428/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Iliadis receives funding from the Australian Institute of Criminology. She is co-convenor of the Deakin Research on Violence Against Women Hub.</span></em></p><p class="fine-print"><em><span>Kerstin Braun 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>Many people do not realise victims do not have access to their own lawyers to protect their privacy and individual interests at trial.Mary Iliadis, Senior Lecturer in Criminology, Deakin UniversityKerstin Braun, Senior Lecturer in Criminal Law and Procedure, University of Southern QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1534562021-02-11T13:46:04Z2021-02-11T13:46:04ZGhana’s media need to up their game in covering the presidential election court case<figure><img src="https://images.theconversation.com/files/383237/original/file-20210209-17-1xhgp2.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ghana's Supreme Court plays a key role in election disputes</span> <span class="attribution"><span class="source">Nii Darku Otoo/CitiNewsroom</span></span></figcaption></figure><p>Ghana, touted for its democracy and peaceful transfer of power since 1992, faced its first presidential election dispute in 2012. This was the sixth election of the country’s <a href="https://www.researchgate.net/publication/326756749_Electoral_Politics_in_Ghana's_4th_Republic_1992-2016_and_its_Implications_on_Future_Elections">fourth republic</a>.</p>
<p>Six months prior to the elections, the sitting president, <a href="https://www.bbc.com/news/world-africa-18972107">John Evans Atta Mills</a>, passed away and the vice-president, <a href="https://www.aljazeera.com/news/2012/7/25/ghana-swears-in-mahama-as-new-president">John Mahama</a>, was sworn in as president. </p>
<p>When the Electoral Commission declared the incumbent the winner of the presidential poll, the outcome was <a href="https://ghalii.org/gh/judgment/supreme-court/2013/137">disputed</a> by Nana Addo Dankwa Akufo-Addo, presidential candidate of the leading opposition party, the New Patriotic Party. He petitioned the Supreme Court to annul some 3,000,000 votes. </p>
<p>The Election Petition Case, as it was called, was heard publicly. In August 2013, the <a href="https://www.dw.com/en/ghanas-supreme-court-upholds-election-result/a-17054771">Supreme Court</a> ruled that the president had been validly elected and dismissed the petition. </p>
<p>Ghanaians went to the polls again in December 2020. Akufo-Addo was re-elected in the first round after <a href="https://www.bbc.com/pidgin/tori-55237020">securing</a> a majority of the votes. But Mahama contested the outcome and has <a href="https://citinewsroom.com/2020/12/mahama-rejects-2020-election-results-full-speech/">petitioned</a> the Supreme Court.</p>
<p>Presidential election petitions are important because they trigger all three arms of government – the executive, the legislature and the judiciary. They provide an opportunity for citizens to understand the political and legal issues at play and affirm the strength of national institutions. </p>
<p>Given the significance of these petitions, the media’s role in portraying them matters a great deal. But how have the media covered presidential election petitions and what should we expect in media coverage? My <a href="https://www.tandfonline.com/doi/abs/10.1080/17512786.2020.1784775?journalCode=rjop20">research</a> into how the Ghanaian media framed the 2012 election petition provides some insights.</p>
<p>It was expected that the media would explain the constitutional and electoral issues at stake and why they mattered, to help Ghanaians understand and participate in the democratic process. But I found that the media did a poor job by covering the election petition like any other political campaign. They failed to explain all substantial aspects of the case and depended mainly on partisan sources to the detriment of other legal voices. </p>
<p>I suggest that the media in Ghana and by extension other developing countries need to educate citizens about these judicial processes, issues and implications for the voter. Journalists need to include sources who can clearly explain the judicial and constitutional issues at play.</p>
<h2>The 2012 election petition</h2>
<p>The objectives of my study were to establish:</p>
<ul>
<li><p>whether media coverage followed the lines of normal political coverage focusing on who was winning or losing. </p></li>
<li><p>whether coverage provided insights into the constitutional and electoral issues at play, and</p></li>
<li><p>whose voices were heard. </p></li>
</ul>
<p>I focused on the digital platforms of the leading elite English language and Akan language radio stations. These were Joy Fm and Peace Fm. Their wide listenership made good proxies for other elite and popular media in Ghana. I sampled 400 publications out of the 732 publications.</p>
<p>I assessed the overarching frame of the story – that is, whether it focused on winners and losers or on constitutional and electoral issues at stake. </p>
<p>I further assessed whether coverage focused on conflicts or disagreements, attributed causes or solutions to something or someone, considered the economic consequences, or indicated impacts on individuals. </p>
<p>I also looked at the type of sources used and the tone of headlines.</p>
<h2>Findings</h2>
<p>Overall, both publications mainly presented the election petition as a competition between the incumbent and the opposition by focusing on conflict and responsibility in the proceedings. </p>
<p>Rather than including a diversity of sources, both publications depended almost entirely on official sources – mainly politicians or partisan sources.</p>
<p>I concluded that presenting a legal and constitutional issue merely as a competition between two political parties diverted attention from the electoral issues at stake. </p>
<p>Secondly, it ran the risk of making audiences question the authority of the Supreme Court justices. For instance, a story titled “Tsatsu fights off judges, Addison wears out Atuguba” suggested a fight between the lawyers and judges. </p>
<p>The media’s reliance on partisan sources was also problematic as it led to <a href="https://www.euppublishing.com/doi/10.3366/ajicl.2015.0123">dubious analysts and veiled politicians</a> being used extensively. Neither provided sound analysis of the process and its importance.</p>
<p>Although the use of these sources was not surprising given the political nature of the trial, more legal voices should have been aired to explain the constitutional issues at stake.</p>
<h2>Wake up call</h2>
<p>The Ghanaian media have another opportunity to engage citizens with the most recent presidential election petition. </p>
<p>Journalists need to consider using diverse voices and affording them the same prominence in news stories. They need to move beyond the routine coverage processes to engage and involve citizens and explain the reasoning of the justices to audiences. </p>
<p>The media, which like to promote themselves as nonpartisan, should step up to the plate and provide a service of educating their audiences.</p><img src="https://counter.theconversation.com/content/153456/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Esi Thompson 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>The Ghanaian media decides how the public understands proceedings from the Supreme Court.Esi Thompson, Assistant Professor, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1519562020-12-22T16:36:41Z2020-12-22T16:36:41ZWhy the courts and police should be held responsible for failing victims of crime<figure><img src="https://images.theconversation.com/files/376226/original/file-20201221-57963-1fd5wgw.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C2780%2C1893&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In order to honour the rights of victims of crime, chronic under-funding in the criminal justice system needs to be addressed.</span> <span class="attribution"><a class="source" href="https://webgate.epa.eu/thumb.php/55071357.jpg?eJxFj7sOwjAMRf_FM4Nj6sbJhrqA1IJEEY8JpU3LghgonSj_jmkFTCdH98p2npAtwLfh2jUzyJbgAZRH8EZxGpGvwJNirWFzu5z7LminUGNGa-ZsP7obu-VYLbNJigkaPe69zj9M8Ra8IKoW3yDPfzfs_8-N1mFuWxEX6qaO4qQiIsuBSKIzKIlxuls_AIRMPBASylBF4TStRLhFTCLD6w0v9zjI">Andy Rain/EPA</a></span></figcaption></figure><p>Nearly a quarter of a million victims and witnesses of crime in London are waiting to have their cases heard in court, according to the <a href="https://www.theguardian.com/law/2020/dec/05/courts-logjam-leaves-227000-waiting-for-justice-in-london-alone">city’s mayor</a>. </p>
<p>Across the rest of England and Wales, the COVID-19 crisis has caused further delays to tens of thousands of other court cases. </p>
<p>In order to honour the rights of victims of crime, <a href="https://commonslibrary.parliament.uk/is-the-criminal-justice-system-fit-for-purpose/">chronic under-funding</a> in the criminal justice system needs to be addressed. Crucially, the <a href="https://victimscommissioner.org.uk/victims-commissioner/">victims’ commissioner</a> needs to be given greater powers.</p>
<h2>Accountability and oversight</h2>
<p>The victims’ commissioner is public official who holds a <a href="https://www.legislation.gov.uk/ukpga/2004/28/contents">statutory responsibility</a> to ensure that victims’ interests, as set out in the <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/936239/victims-code-2020.pdf">victims’ code</a> are respected and promoted. </p>
<figure class="align-center ">
<img alt="Two police officers wearing face masks standing outside with parliament in the background" src="https://images.theconversation.com/files/376348/original/file-20201222-23-d1e4xx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/376348/original/file-20201222-23-d1e4xx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/376348/original/file-20201222-23-d1e4xx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/376348/original/file-20201222-23-d1e4xx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/376348/original/file-20201222-23-d1e4xx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=488&fit=crop&dpr=1 754w, https://images.theconversation.com/files/376348/original/file-20201222-23-d1e4xx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=488&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/376348/original/file-20201222-23-d1e4xx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=488&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In order to honour the rights of victims of crime, chronic under-funding in the criminal justice system needs to be addressed.</span>
<span class="attribution"><a class="source" href="https://webgate.epa.eu/thumb.php/56563551.jpg?eJw1jrEOgkAMht-ls0Ov0LvebYYFE9FETNTJHBy4GAeRSXx3K8Tpy9_vT9s3FGsIfbwP3QqKEgKA8gzBKC4zthsIpNip7B636zhE7VSa2LLNmM0vHuduPVfrAkKuqJaZqtdz1P2nRR8gOESN1V_sVUDmehEf265N4qUhIseRSJI3KLnxekVfBUImnggJZWqSsLWNCPeIeWL4fAE_xjIp">Andy Rain/EPA</a></span>
</figcaption>
</figure>
<p>Introduced in 2004 and revised again last month, the code seeks to ensure that victims have a positive experience of the criminal justice system. It requires bodies like the police to communicate with victims about the progress of their cases and provide information about why certain decisions are taken.</p>
<p>We argue that, in a criminal justice system that is struggling with <a href="https://theconversation.com/legal-aid-at-70-how-decades-of-cuts-have-diminished-the-right-to-legal-equality-120905">systemic problems</a>, victims of crime in the UK still have a <a href="https://www.theguardian.com/law/2020/dec/17/uk-justice-system-treats-victims-of-like-bystanders">low status</a>, even with the existence of the victims’ code. The <a href="https://victimscommissioner.org.uk/victims-commissioner/">victims’ commissioner’s</a> responsibility is to seek to provide an independent voice on behalf of victims, as well as overseeing how criminal justice agencies interact with them. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/criminal-justice-is-at-breaking-point-after-years-of-unstable-leadership-91767">Criminal justice is at breaking point after years of unstable leadership</a>
</strong>
</em>
</p>
<hr>
<p>Our recent <a href="https://victimscommissioner.org.uk/published-reviews/constitutional-powers-of-the-victims-commissioner-for-england-and-wales/">report</a> (co-authored with Prof <a href="https://www.essex.ac.uk/people/sunki14302/maurice-sunkin">Maurice Sunkin</a>) into the commissioner’s powers demonstrates the importance of this role in championing victims’ interests. </p>
<p>Among other measures, it calls for reforms to support the commissioner in holding criminal justice agencies accountable for their conduct with victims. Our suggestions would enable the commissioner to report regularly and directly to parliament, raising the status of victims and awareness of issues affecting them. </p>
<p>The commissioner, for example, could have much greater oversight of complaints by victims against criminal justice agencies, including taking legal action to ensure they follow the victims’ code. </p>
<p>In an article for the Telegraph, the current victims’ commissioner, Vera Baird QC, <a href="https://www.telegraph.co.uk/news/2020/12/03/justice-system-failing-victims-crime/">has recently written</a> that more than half of victims in 2019 claimed that police had failed to keep them “informed on progress on their case”. </p>
<p>Our <a href="https://victimscommissioner.org.uk/published-reviews/constitutional-powers-of-the-victims-commissioner-for-england-and-wales/">findings</a> also highlighted that 90% of victims weren’t referred to support services, half weren’t informed of the progress of their case and 85% did not recall being asked for a victim’s statement, all obligations required by the code.</p>
<p>Giving the commissioner powers to pursue legal action to enforce the code could open up a <a href="https://www.telegraph.co.uk/news/2020/12/03/police-could-made-pay-compensation-letting-victims">new route to compensation</a>. However, victims of crime should be able to seek access to justice through effective prosecution of the offence by the state, not only financial compensation, which is already available through the courts and the <a href="https://www.gov.uk/claim-compensation-criminal-injury">Criminal Injuries Compensation Authority</a>. </p>
<h2>Severe Criminal Court Backlog</h2>
<p>Even before the pandemic, a <a href="https://www.theguardian.com/law/2020/dec/01/clearing-uk-court-backlog-will-need-extra-funds-in-future-years">significant backlog</a> of criminal cases had developed in the courts. James Mulholland QC, chair of the Criminal Bar Association, has recently described the system as being <a href="https://www.theguardian.com/law/2020/nov/19/criminal-justice-system-is-on-its-knees-says-top-english-lawyer">“on its knees”</a>.</p>
<figure class="align-center ">
<img alt="Ministry of Justice sign and Crown Prosecution Service sign on a building" src="https://images.theconversation.com/files/376349/original/file-20201222-23-l60n1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/376349/original/file-20201222-23-l60n1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/376349/original/file-20201222-23-l60n1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/376349/original/file-20201222-23-l60n1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/376349/original/file-20201222-23-l60n1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/376349/original/file-20201222-23-l60n1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/376349/original/file-20201222-23-l60n1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Victims of crime still have a low status.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-november-2018-view-sign-ministry-1238861026">Chrispictures/Shutterstock</a></span>
</figcaption>
</figure>
<p>Delays have put victims at risk and have highlighted the risks posed by the extended process of getting to trial. Lengthy gaps between the launch of a prosecution and the trial of the defendant may lead to victims and witnesses disengaging with the justice process, in some cases withdrawing cooperation with the prosecution, a frequent concern in <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwales/yearendingmarch2018#crown-prosecution-service-prosecutions-and-convictions%22%22">domestic abuse prosecutions</a>. In cases where the relationship between the victim and the defendant is close, such as domestic abuse or gang-related cases, delay can threaten the victim’s safety and wellbeing. </p>
<h2>Cuts to the justice system</h2>
<p>The impact of public sector funding cuts on the justice system as a whole has been vast. In 2019-20, Ministry of Justice spending on prisons, probation and the courts was <a href="https://commonslibrary.parliament.uk/research-briefings/cdp-2019-0217/">25% lower than in 2010-11</a>. The police have also experienced cuts to their workforce, with an overall drop of 21,732 officers between <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/726401/hosb1118-police-workforce.pdf">March 2010 and March 2018</a>. </p>
<p>The <a href="https://www.justiceinspectorates.gov.uk/hmcpsi/wp-content/uploads/sites/3/2020/07/2020-07-08-Annual-Report-2019-20.pdf">stretch on resources</a> within criminal justice agencies has an impact on the quality of decision-making in relation to prosecutions and communication with victims and witnesses. Crucially, the cuts have the potential to exclude victims from the system that is seeking to secure justice on their behalf. </p>
<p>The case-based nature of prosecutions means that a victim’s engagement with agencies is by its nature partial and limited. Victims’ participation in the criminal justice system often depends on how much support and encouragement they are given to interact with agencies they contact during the prosecution process. Resourcing public agencies to keep victims informed about the progress of their case, as required by the code, is key to the effectiveness of these interactions.</p>
<p>The commissioner’s powers are essential for highlighting issues in justice agencies that pose significant problems for giving victims <a href="http://esrcvictims.org/">access to justice</a> in England and Wales.</p>
<p>The shift to recognising the status and needs of victims has been an important development in recent years. While concerns about risks in the system often talk of securing justice for victims, giving the victims’ commissioner stronger powers and adequately funding the criminal justice system are the best ways of seeing that happen.</p><img src="https://counter.theconversation.com/content/151956/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pamela Cox receives funding from the ESRC for the 'Victims' Access to Justice' project and has received funding from the Office of the Victims Commissioner for her work reviewing the constitutional powers of that office. She is affiliated with the Labour Party.</span></em></p><p class="fine-print"><em><span>Ruth Lamont receives funding from ESRC for 'Victims' Access to Justice Through the English Criminal Courts' and from the Office of the Victims' Commissioner for a report on the constitutional powers of the Commissioner.</span></em></p>Research shows giving the commissioner greater oversight of complaints could help deliver justice for those failed by the system.Pamela Cox, Professor of Sociology, University of EssexRuth Lamont, Senior Lecturer in Family and Child Law, University of ManchesterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1214082019-08-13T11:16:24Z2019-08-13T11:16:24ZNew laws give victims more time to report rape or sexual assault – even Jeffrey Epstein’s<p>The #MeToo movement seems to be having a positive effect on sexual assault and rape victims’ willingness to report the crimes against them.</p>
<p>In 2017, <a href="https://www.bjs.gov/content/pub/pdf/cv17.pdf">40.4% of victims of rape or sexual assault in the U.S. reported the crime to police, up from 23.2% in 2016</a>.</p>
<p>New laws being passed around the country may increase these numbers even more by giving victims more time to seek justice in either criminal or civil court.</p>
<p>In 2019 alone, 20 states and the District of Columbia passed reforms, often despite <a href="https://cruxnow.com/church-in-the-usa/2018/03/22/waiving-limitations-on-civil-abuse-suits-called-unfair-catastrophic/">opposition from the Catholic Church</a>, which has been <a href="https://www.businessinsider.com/r-as-pope-visit-nears-us-sex-victims-say-church-remains-obstacle-to-justice-2015-9">facing sex abuse allegations for decades</a>.</p>
<p>A new law in New York state, the <a href="https://www.democratandchronicle.com/story/news/politics/albany/2019/02/14/child-victims-act-four-things-know-new-law-new-york/2868643002/">Child Victims Act</a> allows those who were victims of <a href="https://www.law.com/newyorklawjournal/2019/03/22/suits-for-sexual-abuse-deadlines-and-statutes-of-limitations/">sexual assault as a minor</a> more time to report crimes – until age 28. The law also allows more time for victims to sue alleged perpetrators or negligent institutions – until age 55. Previously, the age limit for both types of cases was 23 with <a href="https://www.democratandchronicle.com/story/news/politics/albany/2019/02/14/child-victims-act-four-things-know-new-law-new-york/2868643002/">an exemption only for the most serious felonies</a>. </p>
<p>The law also opens up a one-year window for victims of any age to file civil law suits, no matter how long ago the abuse occurred. This window opens on Aug. 14.</p>
<p>Some states have gone even further. Last month, my home state of <a href="https://thehill.com/homenews/state-watch/455024-illinois-eliminates-statue-of-limitations-for-sex-crimes">Illinois became the eighth state to completely eliminate statutes of limitation for sex crimes</a>. </p>
<p><a href="https://www.american.edu/spa/faculty/jpalmer.cfm">As a scholar of gender-based violence</a> currently studying the <a href="https://www.american.edu/spa/news/palmer-fellowship.cfm">legal needs of survivors of sexual assault</a>, I believe that these reforms may help some victims find closure. </p>
<p>However, without examining why someone might wait decades to report a sexual assault, why sexual offenders are often not held accountable, and why so few <a href="https://thehill.com/opinion/civil-rights/384174-there-is-no-excise-for-not-fully-funding-the-rape-prevention-and">resources are devoted to rape prevention</a>, I believe that increasing – but not eliminating – time limits will not help most victims heal or access justice.</p>
<h2>Barriers to reporting sexual assault</h2>
<p>There are many reasons victims <a href="https://ocrsm.umd.edu/files/Why-Is-Sexual-Assault-Under-Reported.pdf">choose not to report</a> an attack immediately, or ever. </p>
<p>In a <a href="https://tandfonline.com/doi/abs/10.1080/19407882.2017.1367696?af=R&journalCode=uwhe20">recent study on sexual assault disclosure among college students</a>, my co-author Noelle St. Vil and I found that 72% of victims told someone about the sexual assault, but only 6% reported to law enforcement. Victims were more likely to report if they were injured or their attacker was a stranger. This type of sexual assault is also the most likely to result in a conviction, but it is <a href="https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4594">the least common type</a> of assault.</p>
<p>Recent events, like Dr. Christine Blasey-Ford’s testimony before the Senate in September 2018, meant that <a href="https://www.nbcnews.com/politics/politics-news/during-kavanaugh-ford-hearing-calls-sexual-assault-hotline-spiked-201-n914811">calls to sexual assault hotlines spiked over 200%</a>. Statutes of limitations meant that most of those callers <a href="https://www.revelist.com/feminism/statute-of-limitations-rape/4429/arkansas-six-years-for-firstdegree-offenses-three-years-for-second-third-and-fourth/4">likely had no legal recourse</a> open to them.</p>
<p>The new law in New York state addresses that for many victims. It will also likely mean that <a href="https://www.reuters.com/article/us-people-jeffrey-epstein-lawsuits/lawyers-say-epstein-victims-to-sue-financiers-estate-this-week-idUSKCN1V10LF">more civil law suits will be filed against the estate of Jeffrey Epstein</a> who died in federal jail Aug. 10 awaiting trial on criminal charges of sexually abusing and trafficking girls over the past two decades. </p>
<h2>‘Leaky pipeline’</h2>
<p>More victims may be reporting and suing, but many studies have shown that the criminal legal system is a “<a href="https://nyu.universitypressscholarship.com/view/10.18574/nyu/9780814707937.001.0001/upso-9780814707937-chapter-004">leaky pipeline</a>” where impunity for sexual offenders is common.</p>
<p>According to a 2018 <a href="http://www.startribune.com/denied-justice-series-when-rape-is-reported-and-nothing-happens-minnesota-police-sexual-assault-investigations/487400761/">investigative report</a> that analyzed 1,300 sexual assault cases in Minnesota, 338 of these cases were sent to prosecutors by law enforcement. Charges were filed in 156 cases and only <a href="http://www.startribune.com/minnesota-rape-cases-rejected-by-the-prosecution-denied-justice-special-report-part-five/497700641/">91 of the original 1,300 resulted in a conviction</a>. </p>
<p><a href="http://www.startribune.com/five-factors-that-can-determine-the-fate-of-a-sexual-assault-case/501637071/">Among assaults</a> that were reported more than two days after the incident, only 5% resulted in conviction. Rape cases without evidence from a sexual assault forensic exam resulted in conviction just 3% of the time. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=468&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=468&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=468&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=588&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=588&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287394/original/file-20190808-144888-1hnkewx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=588&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rape cases without forensic exam evidence result in conviction 3% of the time.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Rape-Kits-Backlog/13fd06981c7e4e318f283eb34ddc53f9/2/0">AP/Pat Sullivan</a></span>
</figcaption>
</figure>
<p>In Epstein’s 2019 criminal case, <a href="https://www.washingtonpost.com/nation/2019/08/10/we-need-answers-lots-them-whats-known-whats-next-after-jeffrey-epsteins-death/">which won’t proceed because of his death</a>, there were more than <a href="https://www.forbes.com/sites/lisettevoytko/2019/07/31/jeffrey-epstein-could-spend-year-in-jail-before-trial/#4806b4ec3a18">1 million pages of evidence</a> against him, including photos and victim testimonies.</p>
<p>It is more typical for cases to have little-to-no evidence, especially if it is years or decades after an attack.</p>
<h2>Civil vs. criminal options for victims</h2>
<p>In criminal court, the standard for conviction is to demonstrate that the abuse happened <a href="https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/evidentiary-standards-and-burdens-of-proof/">“beyond a reasonable doubt</a>.” That’s difficult to do when victims do not report promptly or when there is no DNA collected or evidence of injury.</p>
<p>In the criminal system, a <a href="https://www.womenslaw.org/laws/preparing-court-yourself/court-system-basics/overview-civil-vs-criminal-law">conviction means</a> the defendant serves time in prison or jail, is put on probation or must register as a sex offender. But once charges are filed, the case is not in the victim’s control.</p>
<p>New York’s Child Victims Act, and similar reforms in other states, opens the door for more victims to pursue civil law suits instead of reporting to police. In civil cases, it has to be established that it is <a href="https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/evidentiary-standards-and-burdens-of-proof/">“more likely than not”</a> that the abuse occurred. <a href="https://www.wcsap.org/sites/default/files/uploads/working_with_survivors/advocacy/survivors_guide_to_filing_civil_lawsuit_2004.pdf">Victims can file suits to seek</a> compensation for medical, legal or mental health costs or even gaps in employment due to depression or anxiety. </p>
<p>In 2002, California was the first state to offer a one-year window for victims to come forward in cases where the statue of limitations had run out. As a result, <a href="https://www.cbsnews.com/news/new-state-laws-open-door-to-decades-old-child-sex-abuse-cases/">nearly US$1 billion was paid in civil lawsuit settlements by churches and insurance companies</a>.</p>
<p>In many states, including New York, victims can also sue institutions like <a href="https://www.nytimes.com/2019/05/23/us/rape-victims-kits-police-departments.html">police departments</a>, <a href="https://www.usatoday.com/story/news/investigations/2019/08/05/boy-scout-sex-abuse-claims-exclusive-lawsuit/1899606001/">the Boy Scouts of America</a> and even <a href="https://www.axios.com/catholic-priests-sexual-abuse-victims-sue-vatican-d092ccc0-731b-4e18-855e-4d9b1c3d0797.html">the Vatican</a>.</p>
<p>Attorneys representing some of Epstein’s victims intend to proceed with filing suits against his estate, and <a href="https://www.miamiherald.com/news/state/florida/article233748362.html">it’s possible that his assets could be used for victim restitution</a>. </p>
<p>Civil suits can be <a href="https://www.huffpost.com/entry/victims-sexual-assault-come-forward-justice_n_6294152">emotionally taxing for victims, costly and time-consuming</a>, but the civil process offers victims more control over the case, including the ability to withdraw it.</p>
<p>Civil legal attorneys can also help victims with concrete needs <a href="https://law.lclark.edu/live/files/6469-rights-and-remedies-meeting-the-civil-legal-needs">related to housing, employment, immigration issues or educational access</a>. </p>
<h2>The cost of sexual assault</h2>
<p>Some victims who take advantage of the Child Victims Act may be believed for the first time and <a href="https://onlinelibrary.wiley.com/doi/full/10.1046/j.1440-1819.1998.0520s5S145.x">that may help them heal from their trauma</a>. But for many, statutes of limitation reforms are too late. </p>
<p>Every American rape <a href="https://doi.org/10.1016/j.amepre.2016.11.014">takes an estimated $122,461</a> out of the economy over a victim’s lifetime, with the losses related to criminal justice costs, health impairment and loss of productivity. Over the nation’s population, that adds up to $3.1 trillion. Serious investments in prevention could substantially reduce these costs, and <a href="https://www.miamiherald.com/news/state/florida/article233748362.html">perhaps a foundation could use Epstein’s assets to do just that</a>. And one day, perhaps #MeToo will be #NotNeeded.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/121408/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane E. Palmer's research on the civil legal needs of survivors of sexual assault is funded by a Victim Research-to-Practice Fellowship from the Center for Victim Research. </span></em></p>Part of a law that goes into effect in New York state on Aug. 14 allows victims more time sue in civil court. Epstein’s victims can still go after his estate.Jane E. Palmer, Professorial Lecturer, Department of Justice, Law & Criminology, American University School of Public AffairsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1176632019-05-24T08:55:19Z2019-05-24T08:55:19ZIndonesia’s presidential election dispute: Prabowo’s plan to challenge election result may be in vain<p>It is official. Indonesia’s president Joko “Jokowi” Widodo is reelected for the second time. This is also the second failed attempt from former military general Prabowo Subianto to become president of the world’s third largest democracy with the biggest Muslim population. </p>
<p>After more than a month tallying votes from the 17 April election, the General Elections Commission (KPU) formally <a href="https://www.bbc.com/indonesia/indonesia-48329211">announced</a> Jokowi’s reelection on May 21. </p>
<p>Not long after the announcement, Prabowo’s camp <a href="https://www.cnnindonesia.com/national/20190521115051-32-396813/prabowo-gugat-hasil-pilpres-2019-ke-mahkamah-konstitusi">declared</a> that they will challenge the result to the Constitutional Court, a similar move he took five years ago. The Court, in 2014, <a href="https://nasional.kompas.com/read/2014/08/22/11025921/Ini.Penjabaran.Lengkap.Putusan.MK.Tolak.Gugatan.Prabowo-Hatta?page=all">rejected</a> Prabowo’s lawsuit due to insufficient evidence. </p>
<p>The article will describe the legal process that Prabowo must undergo for his case, and why it will likely fail. </p>
<h2>Constitutional Court’s mandates</h2>
<p>The Constitutional Court is one of the judicial powers in Indonesia. It holds <a href="http://www.dpr.go.id/jdih/uu1945">four mandates</a>:</p>
<ol>
<li><p>reviewing laws to decide if they are in accordance with Indonesia’s Constitution–whether it is “constitutional” or “unconstitutional”</p></li>
<li><p>settling disputes over the authority of state institutions</p></li>
<li><p>deciding dissolution of political parties</p></li>
<li><p>settling disputes over the results of general elections.</p></li>
</ol>
<p>Prabowo’s lawsuit falls under the Court’s last authority. </p>
<p>Under his current lawsuit, Prabowo hopes the Court will nullify KPU’s decision and disqualify his opponent, Jokowi, which ultimately will lead to Prabowo winning the election.</p>
<h2>Breakdown of the legal process</h2>
<p><a href="https://mkri.id/index.php?page=web.Perkara2&menu=4">The process</a> will begin when Prabowo files the lawsuit to <a href="https://mkri.id/index.php?page=web.ProfilMK&id=5&menu=2#">the Court’s clerk</a></p>
<p>The clerk will examine the documents to ensure they include the applicants’ identities and their demands.</p>
<p>The Court will inform Prabowo that whether his lawsuit meets the Court’s initial requirements. If the conditions are not met, Prabowo will be given one day to revise and complete his lawsuit, then file it back to the clerk. After the Court decided that the lawsuit qualifies for a preliminary hearing, the Court will announce a date. The Court will also inform, and invite, the defendant and other related parties (in this case, Jokowi and KPU) to the hearing.</p>
<p>During the hearing, judges will ask Prabowo about his lawsuit and give suggestions related to Prabowo’s demands. <a href="https://mkri.id/public/content/persidangan/risalah/risalah_sidang_6940_1.PHPU.PRES.XII.2014.6%20AGUSTUS%202014%20(BY%20INDAH).pdf">He will then be given time, up to three days</a>, to revise it. </p>
<p>After the revision, the Court will hold trials to examine whether the claims made by Prabowo are legally sound. During the hearing, the judges will listen to the testimony from plaintiffs, defendants, other related parties, and experts. There will be at least two sessions of the trial, held on different days - one to hear the plaintiff’s side and another to hear from other parties. </p>
<p>The court will also examine written evidence, cross-examine the testimonies of the witnesses, and examine other proofs and clues. Written evidence include, but are not limited to, the KPU’s documents supporting the declaration of Jokowi’s victory.</p>
<p>After all those processes, the Court will decide whether to grant or to deny the motions, within a maximum of 14 working days since the case is registered. </p>
<h2>Trial schedule</h2>
<p><a href="https://www.hukumonline.com/pusatdata/detail/lt59ba5511ab93b/node/534/undang-undang-nomor-7-tahun-2017/">The 2017 Law on Elections</a> states candidates who are unsatisfied with election results can submit a lawsuit to the Constitutional Court by no later than three days after KPU announces the results.</p>
<p>Thus, the deadline for Prabowo to formally file his lawsuit is on May 24.</p>
<p>Once Prabowo filed his lawsuit, the Court will register the case on June 11 and will notify the other related parties to attend the preliminary hearing.</p>
<p>On June 14, the preliminary hearing will take place, and Prabowo will be given time until June 17 to revise his application. After that, the Court will hold trials to further examine the case from June 17 to 21. </p>
<p>The judges are expected to read the final verdict by June 28. </p>
<h1>Decision options</h1>
<p>The Court has three final decision options - not to process the case, to grant the plaintiff’s demands or to reject them.</p>
<p>The Court will not process a lawsuit if it does not meet requirements. This include mistyping the identity of the plaintiffs, the plaintiffs are not valid candidates, or the plaintiffs pass the 3-day deadline to file the lawsuit. </p>
<p>The Court will reject a lawsuit if it is unlawful. Prabowo faced such rejection in 2014. The Court decided to reject his demand due to <a href="http://wcw.cs.ui.ac.id/repository/dokumen/lihat/11587.pdf">insufficient evidence</a>.</p>
<p>The final option is the Court will grant the plaintiff’s motions when they are proven to be legally sound.</p>
<p>If the Court grants Prabowo’s motions, the Court will nullify KPU’s decision and determine the right result of the election. </p>
<p>However, if the Court decides to deny Prabowo’s motions and therefore reject his lawsuit, this will lead to Jokowi’s victory, as the Court’s decision is final and binding. </p>
<h2>Difference between 2014 with 2019</h2>
<p>In 2014, when Jokowi won by a slim margin, Prabowo only had to bring evidence from 57,000 polling stations.</p>
<p>This year, according to the KPU, Jokowi wins by 16 million votes over Prabowo. </p>
<p>To prove electoral fraud in the 2019 election, Prabowo has to show that there are at least 100 frauds in <a href="https://nasional.kompas.com/read/2019/05/21/19060811/agar-gugatannya-di-mk-kuat-kubu-prabowo-harus-hadirkan-bukti-sebanyak-ini">100,000 to 200,000</a> polling stations.</p>
<p>Therefore, it seems that Prabowo’s lawsuit will also end up in vain.</p>
<p><em>Las Asimi Lumban Gaol translated this article from Indonesian.</em></p><img src="https://counter.theconversation.com/content/117663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Josua Satria Collins tidak bekerja, menjadi konsultan, memiliki saham, atau menerima dana dari perusahaan atau organisasi mana pun yang akan mengambil untung dari artikel ini, dan telah mengungkapkan bahwa ia tidak memiliki afiliasi selain yang telah disebut di atas.</span></em></p>Indonesia’s General Election Commission (KPU) has announced incumbent Joko “Jokowi” Widodo’s victory in 2019 presidential election. His opponent Prabowo Subianto, plans to challenge the result. Here’s why it will likely end up in vain.Josua Satria Collins, Researcher at Indonesia Judicial Monitoring Society (MaPPI), Faculty of Law University of Indonesia, Universitas IndonesiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1157842019-04-23T10:44:04Z2019-04-23T10:44:04ZFUCT gets day in court as SCOTUS considers dropping slippery moral standard when granting trademarks<p>When’s a brand too scandalous to <a href="https://www.uspto.gov/trademarks-getting-started/trademark-basics">trademark</a>? </p>
<p>That’s a question the Supreme Court <a href="http://www.abajournal.com/magazine/article/too-tasteless-to-trademark">will soon decide</a> in a case that tests the constitutional limits of free speech. </p>
<p>I attended the oral argument on April 15, when lawyers representing streetwear clothing label FUCT <a href="https://www.washingtonpost.com/politics/courts_law/he-wants-to-trademark-a-brand-name-that-sounds-like-the-f-word-the-supreme-court-is-listening/2019/04/12/17426e44-5d29-11e9-a00e-050dc7b82693_story.html?utm_term=.b8767c55ecbb">argued the company has a right</a> to register its brand as a trademark, which helps protect against copycats. The United States Patent and Trademark Office had <a href="https://www.npr.org/2019/04/16/713632552/supreme-court-dances-around-the-f-word-with-real-potential-financial-consequence">rejected it</a> on the grounds that FUCT is “immoral” and “scandalous.” </p>
<p>As a <a href="https://scholar.google.com/citations?user=T_SiGdwAAAAJ&hl=en&oi=a">trademark attorney and scholar</a>, I believe it’s time the U.S. stopped enforcing an impossible-to-apply moral standard in trademark law – as it has in many other legal domains. Here’s why. </p>
<h2>An outlaw ethos</h2>
<p>It is perhaps appropriate that this case arose from a streetwear label famous for testing the limits. </p>
<p>While it’s commonplace today for clothing labels to adopt a provocative ethos and image, FUCT founder Erik Brunetti was a <a href="https://www.gq.com/story/fuct-erik-brunetti-supreme-court-case">trailblazer of edgy streetwear fashion</a> when <a href="https://www.grailed.com/drycleanonly/fuct-history">he started the company</a> in 1990. The name was meant to embody the company’s outlaw image – a corporate-looking logo with an anti-authoritarian pronunciation and subversive message. </p>
<p>A popular style involved prints of the brand name in the font style of the Ford logo, which can be found on <a href="http://www.defunkd.com/forum/what-worth-f20/vintage-fuct-ford-logo-shirt-t2930.html">T-shirts</a> and <a href="https://www.google.com/search?q=fuct+ford+logo+hat+original&rlz=1C5CHFA_enUS754US754&source=lnms&tbm=isch&sa=X&ved=0ahUKEwjD4szWwMvhAhVimuAKHfI1Av4Q_AUIDygC&biw=1412&bih=736">hats</a>. The brand quickly became a cultural icon, with its gear worn by skateboarders, punk rockers and even <a href="https://www.pinterest.com/pin/555420566539029843">members of the band Nirvana</a>. </p>
<p>As the popularity of the label grew, it engendered fake FUCT merchandise. In order to protect his mark more effectively around the world, <a href="http://www.abajournal.com/magazine/article/too-tasteless-to-trademark">Brunetti applied to register</a> it with the U.S. Patent and Trademark Office in 2011.</p>
<p>Trademark registration <a href="https://www.uspto.gov/trademarks-getting-started/trademark-basics">confers significant benefits</a>, including nationwide protection from confusingly similar products, enhanced monetary damages in litigation and priority for foreign filings. It also enables U.S. Customs agents to stop counterfeit goods from entering at the border. </p>
<p>In rejecting Brunetti’s application, examiners argued he ran afoul of a more than century-old provision in trademark law. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/270302/original/file-20190422-28113-kup11q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/270302/original/file-20190422-28113-kup11q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/270302/original/file-20190422-28113-kup11q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/270302/original/file-20190422-28113-kup11q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/270302/original/file-20190422-28113-kup11q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/270302/original/file-20190422-28113-kup11q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/270302/original/file-20190422-28113-kup11q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Brunetti appealed the rejection of his trademark application all the way to the Supreme Court.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Scandalous-Trademarks/5437f1f6b0eb4fbe86cf00623b84c2a6/5/0">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>‘Offensive to the conscience’</h2>
<p>The prohibition on registration of immoral and scandalous trademarks has been in existence since Congress <a href="https://www.ipmall.info/sites/default/files/hosted_resources/lipa/trademarks/PreLanhamAct_086_Act_of_1905.htm">passed the Trademark Act of 1905</a>. It says any mark that “consists of or comprises immoral or scandalous matter” will be rejected. </p>
<p>Today, scandalous <a href="https://tmep.uspto.gov/RDMS/TMEP/Oct2012#/Oct2012/TMEP-1200d1e3054.html">is defined</a> as “shocking to the sense of propriety, offensive to the conscience or moral feelings or calling out for condemnation.” </p>
<p>I and other scholars <a href="https://kb.osu.edu/bitstream/handle/1811/64637/OSLJ_V54N2_0331.pdf">have long questioned the wisdom</a> of having the trademark office as an arbiter of a collective and ever-evolving moral standard. That’s because trademarks <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/branlaj49&div=25&id=&page=">serve a valuable function</a> in the marketplace by identifying the source of a good or service, helping consumers trust where something they buy comes from and preventing deception. </p>
<p>What matters is source quality – not moral quality. </p>
<p>And because the prohibition affects registration but not use, I have found that <a href="https://scholars.unh.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1309&context=law_facpub">it is ineffective</a> at keeping offensive trademarks out of the marketplace. In addition, decisions based on this provision are wildly inconsistent. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/270303/original/file-20190422-191664-1mnb1xz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/270303/original/file-20190422-191664-1mnb1xz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/270303/original/file-20190422-191664-1mnb1xz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/270303/original/file-20190422-191664-1mnb1xz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/270303/original/file-20190422-191664-1mnb1xz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/270303/original/file-20190422-191664-1mnb1xz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/270303/original/file-20190422-191664-1mnb1xz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Patent and Trademark Office determines whether a mark is ‘scandalous’ or not.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Overhauling-Patent-System/ce5e838efc9e46d4a6efd0393c7580b1/88/0">AP Photo/Alex Brandon</a></span>
</figcaption>
</figure>
<h2>If FCUK is fine, why not FUCT?</h2>
<p>While the U.S. <a href="https://www.jstor.org/stable/1339557?seq=1#page_scan_tab_contents">has moved away</a> from regulating morality in other areas such as broadcasting – and in other forms of intellectual property such as copyrights and patents – the government continues to do so when it comes to granting <a href="https://freibrun.com/trademarks-valuable-intellectual-property-assets/">valuable legal rights</a> through trademark registration. </p>
<p>The primary evidence used by examiners to determine whether to reject a mark on these grounds is the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2715104">dictionary</a>. If a dictionary indicates that a term is “vulgar,” that is sufficient evidence to reject a mark. </p>
<p>Trademark examiners evaluate the meaning of a mark in the context of the current attitudes of the day. For example, in 1938, the <a href="https://casetext.com/case/in-re-riverbank-canning-co">trademark office rejected</a> a request to trademark Madonna as a wine brand on grounds that the word is religious in nature. A half century later, the office apparently no longer had a problem with granting such trademarks when <a href="http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4809:d6j8vq.2.29">it approved one</a> for Madonna rosé wine. </p>
<p>Since the perception of what is and isn’t scandalous is constantly changing, it’s difficult for the trademark office to keep up. And trademarks that are considered scandalous or immoral to one examiner may be acceptable to another. </p>
<p>As a result, the trademark office records <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2715104">are rife with inconsistencies</a>. In recent years, examiners <a href="https://www.uspto.gov/trademarks-application-process/search-trademark-database">have approved trademarks</a> containing words such as “whore,” “bitch,” “penis” and “pothead” while rejecting others with the same terms. </p>
<p>And the office has even approved clothing trademarks remarkably similar to FUCT, including FCUK, the F word and Fvck Street Wear. </p>
<p>In the case of FUCT, the rejection was based on the idea that the homonym <a href="https://www.supremecourt.gov/DocketPDF/18/18-302/95141/20190402150636686_18-302rbUnitedStates.pdf">would be perceived as equivalent</a> to the vulgar word it sounds like. </p>
<h2>A terrible message</h2>
<p>Two years ago, the Supreme Court cited the First Amendment <a href="https://www.npr.org/sections/thetwo-way/2017/06/19/533514196/the-slants-win-supreme-court-battle-over-bands-name-in-trademark-dispute">in striking down</a> a prohibition against <a href="https://theconversation.com/is-the-slants-racist-court-ruling-on-band-name-could-upend-trademark-law-48413">trademark registration for marks that disparage</a> individuals or groups. I believe the justices should do the same in the FUCT case. </p>
<p>A concern some justices expressed during oral arguments is that allowing trademark registration of offensive terms could be perceived as some sort of government endorsement of that language. </p>
<p>I disagree, but more importantly trademark law shouldn’t police morality. It is terrible at doing so. </p>
<p>And now that the court has deemed registration of racist and sexist trademarks as permissible, to then draw the line at “scandalous” or “immoral” ones would be a terrible message to send to disadvantaged groups typically on the receiving end of those types of offensive marks.</p>
<p>Otherwise, we may well be FUCT.</p><img src="https://counter.theconversation.com/content/115784/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Megan M. Carpenter does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A trademark law scholar explains why the impossible-to-apply standard, dating back to the early 20th century, is ineffective and needs to be abolished.Megan M. Carpenter, Dean, University of New HampshireLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1144692019-03-28T20:46:06Z2019-03-28T20:46:06ZWhat Oklahoma’s opioid settlement means for other states, cities and counties suing Purdue Pharma<p><a href="http://www.oag.ok.gov/mike-hunter-oklahoma-attorney-general">Oklahoma Attorney General Mike Hunter</a> recently announced that the state had reached <a href="https://www.nytimes.com/2019/03/26/health/opioids-purdue-pharma-oklahoma.html">a US$270 million settlement</a> with <a href="https://www.purduepharma.com/">Purdue Pharma</a>, the largest manufacturer of prescription opioids. The settlement resolves the state’s claims against Purdue over costs incurred in addressing the opioid crisis and allows Purdue to avoid a trial that was scheduled for May.</p>
<p>So the natural question arises: What does this development mean for the <a href="https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-March-15-2019.pdf">1,700 or so cases</a> brought largely by city and county governments against Purdue and a swath of other pharmaceutical-industry defendants? </p>
<p>My advice for other plaintiffs and opioid victims, <a href="https://law.case.edu/Our-School/Faculty-Staff/Meet-Our-Faculty/Faculty-Detail/id/936">based on my nearly three decades studying and practicing civil litigation</a>: Don’t get your hopes up. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Judge Dan Polster is overseeing a case involving dozens of opioid lawsuits.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Opioid-Crisis-Lawsuits/a5dc160477c543f68badf78bc12374cc/3/0">AP Photo/Tony Dejak</a></span>
</figcaption>
</figure>
<h2>Purdue’s potential bankruptcy</h2>
<p>Most of the outstanding cases have been consolidated into so-called <a href="https://www.ohnd.uscourts.gov/mdl-2804">multidistrict litigation in Ohio</a>. The court’s judge, Dan Polster, <a href="https://www.nytimes.com/2018/03/05/health/opioid-crisis-judge-lawsuits.html">has pushed hard for a settlement</a>.</p>
<p>So will these cases follow Oklahoma’s lead and reach a settlement?</p>
<p>Not so fast.</p>
<p>Rumors have swirled around Purdue’s <a href="https://theconversation.com/purdue-pharma-bankruptcy-filing-would-make-lawsuits-slower-and-costlier-for-plaintiff-cities-and-states-113309">possible plan to seek bankruptcy protection</a> from creditors, including the plaintiffs in the opioid cases. That plan may make sense to Purdue given that the ongoing litigation could result in judgments in the <a href="https://www.nytimes.com/2019/01/30/health/opioid-lawsuits-settlement-trial.html">tens of billions of dollars</a> – presumably far in excess than the <a href="https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain">combined net worth</a> of the family that owns the private company, the Sacklers.</p>
<p>But a bankruptcy filing would create havoc for any prospect of near-term settlement for the outstanding opioid cases. An <a href="https://www.law.cornell.edu/uscode/text/11/362">automatic stay</a> would be issued that would bring all pending U.S. litigation to a screeching halt – including the bellwether multidistrict trial, which is set for October. </p>
<p>A bankruptcy judge with no familiarity with the case would suddenly find herself responsible for resolving perhaps the <a href="https://www.forbes.com/sites/nicolefisher/2018/10/18/opioid-lawsuits-on-par-to-become-largest-civil-litigation-agreement-in-u-s-history/">largest mass litigation</a> of its kind in history in terms of monetary size. That judge would have to approve any new settlement involving ongoing litigation in other jurisdictions and would likely require it to be global. That’s a herculean task – just ask Polster, who had hoped to settle the cases before him by now.</p>
<p>At the same time the alternative is also unthinkable in which all of the claims against Purdue would potentially relocate to the bankruptcy court where Purdue files. In other words, all 1,700 or so cases – including the multidistrict litigation and the state lawsuits – would be lumped together before the bankruptcy court to be resolved there. </p>
<p>That court could choose to send them back for trial to the courts where they originated but still would have ultimate authority to determine how much each creditor and plaintiff would end up with. </p>
<h2>Oklahoma’s settlement</h2>
<p>A bankruptcy filing by Purdue could also pose problems for the settlement with Oklahoma. </p>
<p>Although Oklahoma claims that <a href="https://www.nytimes.com/2019/03/26/health/opioids-purdue-pharma-oklahoma.html">its settlement is secured</a> against a possible bankruptcy filing – and Purdue <a href="http://www.startribune.com/the-latest-oklahoma-to-announce-settlement-in-opioids-case/507666652/">reportedly committed</a> to delay any filing – it’s likely the other plaintiffs would challenge it. Why should Oklahoma get a large settlement while all the other states with pending litigation are forced to accept the scraps following Purdue’s bankruptcy? </p>
<p>After all, there is nothing unique about Oklahoma’s case except that it was the first to come to trial. I don’t think a bankruptcy judge would feel warm and fuzzy about affirming a disproportionate settlement that would benefit one state to the detriment of all the other plaintiffs. </p>
<p>If the plaintiffs are crafty, they’ll try to force Purdue into bankruptcy by filing what is known as an <a href="https://www.law.cornell.edu/uscode/text/11/303">involuntary bankruptcy petition</a>. All it takes is three creditors with claims against a potentially insolvent company – such as three of the hundreds of states, counties or cities that are suing Purdue – to ask a bankruptcy court to assume control of its assets.</p>
<p>And in this case, the Oklahoma settlement could be deemed an attempt – legally called a <a href="https://codes.findlaw.com/us/title-11-bankruptcy/11-usc-sect-547.html">“preference”</a> – to benefit one creditor at the expense of others. Thus Oklahoma would lose whatever security interest it may have, as well as any money it received, within 90 days of such a bankruptcy petition. Those assets would return to the estate for division among all unsecured creditors. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Oklahoma Attorney General Mike Hunter recently settled his state’s opioid lawsuit against Purdue.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mike-Hunter/d9edc767bb1a4bad9c7cae5460c9cdf2/47/0">AP Photo/Sue Ogrocki</a></span>
</figcaption>
</figure>
<h2>What’s in it for Purdue</h2>
<p>So why did Purdue settle with Oklahoma rather than file for immediate bankruptcy protection? </p>
<p>Clearly, in my view, it’s not ready to file – but didn’t want the Oklahoma trial to start either. A cynic might wonder whether Purdue’s owners received profit distributions within the last year and are waiting to file for bankruptcy after the <a href="https://codes.findlaw.com/us/title-11-bankruptcy/11-usc-sect-547.html">so-called lookback period expires</a>. During the lookback period, creditors can claw back certain types of payments made within the year before the filing. For insiders like the Sackler family, the lookback period is a full year rather than 90 days – as it is for Oklahoma. </p>
<p>In any event, the Oklahoma settlement proceeds may well end up much lower than the settlement agreement provides. So the Oklahoma attorney general may have scored a political victory in announcing the settlement, but it remains to be seen whether his constituents will actually see the money – and, if so, how much and when.</p>
<p>Knowing that, it’s hard to imagine any significant further settlement activity, at least until another case gets within a month or two of trial. And, if Purdue does file for bankruptcy, the opioid cases may never get that close to a trial again.</p>
<p>And that, of course, means that the various states and local governments that have brought lawsuits will have to continue to bear the cost of opioid-related treatment and services for the foreseeable future.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/114469/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Pollis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The $270 million settlement may not mean a whole lot if Purdue files for bankruptcy as it’s reportedly considering.Andrew Pollis, Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/988422018-06-29T10:35:48Z2018-06-29T10:35:48ZMick Mulvaney turned the CFPB from a forceful consumer watchdog into a do-nothing government cog<p>Until last Thanksgiving, the <a href="https://www.consumerfinance.gov/">Consumer Financial Protection Bureau</a> was known for forcefully pursuing its core mission, returning nearly US$12 billion to about 30 million consumers who had been taken advantage of by financial institutions. </p>
<p>But since then, the bureau has been <a href="https://theconversation.com/consumers-are-biggest-losers-of-trumps-ongoing-war-on-regulations-91301">known</a> for … well, not much. After Obama-appointee Richard Cordray stepped down in November, President Donald Trump named as interim director, his budget chief Mick Mulvaney, <a href="https://www.vox.com/policy-and-politics/2017/11/16/16667266/mick-mulvaney-cfpb-cordray-omb-joke">who has long been a foe</a> of the CFPB. </p>
<p>The president <a href="https://www.msn.com/en-us/news/politics/trump-nominates-budget-official-kraninger-to-lead-consumer-bureau/ar-AAyPeeU">recently nominated</a> a new permanent director – who has no consumer finance experience but is one of Mulvaney’s own deputies at the Office of Budget and Management – for a five-year term, with hearings likely to take place later this year. </p>
<p>So what does this mean for the only government agency focused on protecting consumers from financial shenanigans? I’ve been writing about consumer law for more than 30 years and follow the work of the CFPB closely. Let me explain what it used to do, what it’s doing now and what the change means for consumers. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/225403/original/file-20180628-117440-1chske8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/225403/original/file-20180628-117440-1chske8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/225403/original/file-20180628-117440-1chske8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/225403/original/file-20180628-117440-1chske8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/225403/original/file-20180628-117440-1chske8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/225403/original/file-20180628-117440-1chske8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/225403/original/file-20180628-117440-1chske8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Richard Cordray left the CFPB last year to run for governor Ohio.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Ohio-Governors-Race-Democrats/111b04b4845540898f57e1daf66f6f06/14/0">AP Photo/John Minchillo</a></span>
</figcaption>
</figure>
<h2>The CFPB under Cordray</h2>
<p>The CFPB <a href="https://www.sec.gov/about/laws/wallstreetreform-cpa.pdf">was launched in 2011</a> in the aftermath of the 2008 financial crisis as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The goal was to protect consumers from deceptive or misleading practices in the financial industry.</p>
<p>So what has the agency accomplished in its short life span? A lot. Here are a few highlights. </p>
<ul>
<li><p>It <a href="https://www.consumerfinance.gov/about-us/newsroom/consumer-financial-protection-bureau-fines-wells-fargo-100-million-widespread-illegal-practice-secretly-opening-unauthorized-accounts/">fined Wells Fargo</a> $100 million and forced it to refund fees it had <a href="https://theconversation.com/how-wells-fargo-encouraged-employees-to-commit-fraud-66615">fraudulently charged customers</a> by <a href="https://dx.doi.org/10.2139/ssrn.2516432">opening millions of fake accounts</a> without their permission. The bank was also required to hire an independent consultant to review its procedures. This probably wouldn’t have happened nationwide without the CFPB.</p></li>
<li><p>It blocked debt collector attorneys from <a href="https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-halt-illegal-debt-collection-practices-lawsuit-mill-and-debt-buyer/">suing consumers based on false information</a>. </p></li>
<li><p>It discovered systemic problems with consumer credit reports and forced companies to <a href="https://www.consumerfinance.gov/about-us/newsroom/cfpb-oversight-uncovers-and-corrects-credit-reporting-problems/">correct errors</a>.</p></li>
<li><p>It compelled credit card companies to <a href="https://www.consumerfinance.gov/about-us/newsroom/cfpb-orders-subprime-credit-card-company-to-refund-2-7-million-for-charging-illegal-credit-card-fees/">refund illegal fees</a>. </p></li>
</ul>
<p>And the list goes on and on. In addition, after the bureau began publishing <a href="https://www.consumerfinance.gov/data-research/consumer-complaints/">consumer complaints on its website</a>, financial institutions have responded <a href="https://www.consumerfinance.gov/data-research/consumer-complaints">more than 700,000 times</a>, often by providing remedies.</p>
<h2>What the CFPB’s been up to lately</h2>
<p>All that action came to a very sudden stop the day Mulvaney entered the building on Nov. 27. Although there was a <a href="https://www.nytimes.com/2017/11/28/us/politics/mick-mulvaney-leandra-english-consumer-bureau.html">brief tussle</a> over who had the right to run the bureau, Mulvaney quickly took charge and installed his own people. </p>
<p>Since then, Mulvaney has brought only <a href="https://www.consumerfinance.gov/about-us/newsroom/bureau-consumer-financial-protection-settles-security-group-inc/">two cases</a>, one of which was against <a href="https://www.consumerfinance.gov/policy-compliance/enforcement/actions/wells-fargo-bank-na-2018/">Wells Fargo</a> – the <a href="http://money.cnn.com/2017/12/08/investing/trump-twitter-wells-fargo/index.html">target of a Trump tweet</a> – over the bank forcing consumers to pay for car insurance they didn’t need. That contrasts sharply with the work of Cordray, who, for example, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3072545">filed</a> nearly one case a week in 2015 and 2016. </p>
<p>Mulvaney has also sought to protect banks in other ways. After <a href="https://www.documentcloud.org/documents/4357880-Mulvaney-Memo.html">saying</a> the bureau should be guided by the number of complaints it receives, Mulvaney <a href="https://www.americanbanker.com/news/mulvaney-to-drop-public-complaints-against-firms-change-cfpb-name">raised</a> the possibility of concealing those complaints from the public, which would lower the complaint database’s profile, and probably reduce the number of complaints it receives. The proposal, which is still under discussion, would also <a href="http://www.nydailynews.com/opinion/cfpb-leaving-consumers-high-dry-article-1.4006220">make it harder</a> for consumers to obtain redress from misbehaving companies. </p>
<p>In June, Mulvaney fired the unpaid members of the bureau’s advisory committees, a move criticized by <a href="https://www.cnn.com/2018/06/08/opinions/mick-mulvaney-doing-the-financial-sectors-dirty-work-by-abolishing-cab/index.html">consumer advocates</a> and <a href="http://pubcit.typepad.com/clpblog/2018/06/where-are-the-defenders-of-mulvaneys-decision-to-fire-the-cab-members-anyone-bueller.html">financial industry figures</a> alike. The advisory committees gave the bureau an opportunity to talk to consumer, financial and scholarly experts about how it should act.</p>
<p><a href="https://www.nytimes.com/2018/06/07/opinion/cfpb-mick-mulvaney-consumer-advisory-board-fired.html">Shifting justifications</a> were offered for the firings in the subsequent days, from <a href="https://www.cnn.com/2018/06/08/opinions/mick-mulvaney-doing-the-financial-sectors-dirty-work-by-abolishing-cab/index.html">citing criticism</a> of the committees to <a href="https://www.americanbanker.com/news/mulvaneys-defense-of-cfpb-board-upheaval-im-trying-to-fix-leaks?brief=00000158-07c7-d3f4-a9f9-37df9bc10000">preventing leaks</a> – all of which didn’t add up or weren’t backed by evidence. Mulvaney’s spokesperson even <a href="https://www.americanbanker.com/news/mulvaney-makes-it-official-fires-cfpb-advisory-board-members">charged</a> that the complaining committee members were more interested in protecting their taxpayer-funded trips to Washington than in protecting consumers, a charge that was belied by the fact that some members <a href="https://www.washingtonpost.com/news/business/wp/2018/06/06/mick-mulvaney-fires-members-of-cfpb-advisory-board/?noredirect=on&utm_term=.89c2c50409a3">offered</a> to pay their own way. </p>
<h2>The next director</h2>
<p>Many are wondering what will change once the president’s nomination to helm the bureau, Kathy Kraninger, is confirmed. We can’t be certain, because Kraninger has never spoken publicly about her views on consumer protection, but, given that she serves as Mulvaney’s deputy, I fear the answer is not much.</p>
<p>Many observers were <a href="http://thehill.com/regulation/finance/392904-trump-surprises-with-consumer-agency-pick">surprised</a> by the pick of Kraninger, who is not known to have any experience with the laws that the bureau enforces and interprets.</p>
<p>You might think that’s not a big deal. After all, how difficult can it be to master consumer law, which ought to be readily understandable by consumers? </p>
<p>But the truth is that consumer law is <a href="https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=90&Issue=8&ArticleID=25822*">often terribly complex</a>. I still learn new things about consumer law every week, and I’ve been teaching it for 30 years.</p>
<p>Kraininger’s supporters have <a href="https://www.wsj.com/articles/kathy-kraninger-to-be-nominated-to-head-cfpb-1529183308?tesla=y">noted</a> that she acquired considerable managerial experience as an associate director at the Office of Management and Budget and deputy assistant secretary at the Department of Homeland Security. That may help her with management issues, but it’s hard to see how it will help her make decisions about which cases to bring or what protections consumers need. </p>
<p>To make the problem even worse, the CFPB’s jurisdiction is vast. The next director will have to work with laws governing credit cards, bank accounts, mortgages, student loans, car loans, debt collection, consumer leases, payday loans, credit reports, lending discrimination and much more. In short, the director’s work touches the life of nearly every American in multiple ways –which makes it important that the director know what she is doing.</p>
<p>Bureau critics <a href="https://www.consumeraffairs.com/news/cfpb-director-asks-congress-to-reduce-the-agencys-power-040318.html">complain</a> that it is too powerful, making ignorance of the law even more troublesome. In fact, even a conservative commentator has <a href="https://www.wsj.com/articles/kathy-kraninger-to-be-nominated-to-head-cfpb-1529183308?tesla=y">said</a> that Kraninger lacks the needed expertise, <a href="https://www.politico.com/story/2018/06/16/trump-consumer-protection-bureau-kathy-kraninger-650388">comparing</a> her nomination with President George W. Bush’s <a href="https://www.npr.org/2018/03/30/598115811/the-fall-of-harriet-miers-a-cautionary-tale-for-dr-ronny-jackson">ill-fated nomination</a> of Harriet Miers to the Supreme Court in 2005.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/225415/original/file-20180628-117374-1q6drbg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/225415/original/file-20180628-117374-1q6drbg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/225415/original/file-20180628-117374-1q6drbg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/225415/original/file-20180628-117374-1q6drbg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/225415/original/file-20180628-117374-1q6drbg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=547&fit=crop&dpr=1 754w, https://images.theconversation.com/files/225415/original/file-20180628-117374-1q6drbg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=547&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/225415/original/file-20180628-117374-1q6drbg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=547&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The president isn’t the only one who has cast a long shadow over the fate of the CFPB.</span>
<span class="attribution"><span class="source">AP Photo/Francisco Seco</span></span>
</figcaption>
</figure>
<h2>Casting a shadow</h2>
<p>Meanwhile, Mulvaney continues to run the CFPB, which is facing new threats to its existence, particularly over whether its structure – intended to shield it from interference from the executive branch – is constitutional. </p>
<p>Early this year, a federal appeals court <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/%24file/15-1177.pdf">ruled</a> that it was. In mid-June, a federal trial court in New York disagreed and <a href="https://www.citizen.org/sites/default/files/consumer-financial-protection-bureau-et-al-v-rd-legal-funding-llc.pdf">called</a> the CFPB’s design entirely unconstitutional.</p>
<p>While that court’s decision does not bind others, it casts a shadow over the CFPB and could encourage more lawsuits. </p>
<p>As for consumers, for now they will have to seek protection elsewhere than in this once-great consumer protection agency.</p>
<p><em>This article incorporates some material from a <a href="https://theconversation.com/why-we-need-to-save-the-consumer-financial-protection-bureau-80353">2017 article</a> written by the author along with Gina M. Calabrese and Ann L. Goldweber.</em></p><img src="https://counter.theconversation.com/content/98842/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeff Sovern, together with three other then-employees of St. John's University, received a $29,510 grant from the American Association for Justice Robert L. Habush Endowment and a grant from the St. John’s University School of Law Hugh L. Carey Center for Dispute Resolution in 2014 to study arbitration. It resulted in an article. Along with Professor Kate Walton, he received a grant from the National Conference of Bankruptcy Judges Endowment for Education to study debt collection, resulting in another article. He is a member of the National Association of Consumer Advocates.</span></em></p>The president recently nominated a new permanent director to take over the Consumer Financial Protection Bureau. With the CFPB doing a fraction of the work it did under Obama, what kind of agency will she lead?Jeff Sovern, Professor of Law, St. John's UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/884322018-04-03T10:28:17Z2018-04-03T10:28:17ZFive punishments past and present for jurors who fall foul of the law<figure><img src="https://images.theconversation.com/files/200392/original/file-20171221-15864-ynl7j5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><a class="source" href="http://www.shutterstock.com">www.shutterstock.com</a></span></figcaption></figure><p>Jurors in England and Wales have come under repeated criticism in recent years for the ways they’ve carried out their duties. In late March, a jury member at Carlisle Crown Court <a href="http://www.bbc.co.uk/news/uk-england-cumbria-43490590">was fined £1,000</a> for playing on his phone during a trial in what the judge described as “blatant contempt of court”. In November 2017, a jury was <a href="http://www.bbc.co.uk/news/uk-england-wiltshire-42100936">dismissed</a> at Winchester Crown Court after what one newspaper described as <a href="http://www.telegraph.co.uk/news/2017/11/23/parachute-trial-jury-discharged-failing-reach-verdict/">“an extraordinary row”</a> between judge and jury. Some jurors have <a href="http://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">even been imprisoned</a> for carrying out illicit research into the case before them.</p>
<p>In the past there were a number of ways to punish jurors – some of which still stand today. </p>
<h2>Attaint</h2>
<p>In medieval England, if it was suspected that a jury of 12 had returned an inaccurate verdict in a civil trial, the case could be reheard by a 24-strong jury. If the second jury disagreed with the first jury’s verdict, the first jury would be punished. This procedure was <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">called the attaint</a>.</p>
<p>Initially, punishment under the attaint meant imprisonment and the destruction of the jurors’ homes and lands, although by the end of the 15th century this had been replaced with perpetual infamy and a fine. The attaint never seems to have been used on criminal juries, and by the end of the 16th century it seems to have stopped being used even in civil trials. The system was formally abolished in 1825.</p>
<h2>Embracery</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=933&fit=crop&dpr=1 754w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=933&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=933&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Vaughan: he argued jurors shouldn’t be punished just because a judge disagree with them.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/b/b3/John_Vaughan_%281603-1674%29%2C_follower_of_John_Michael_Wright.jpg">Sotheby's via Wikimedia Commons.</a></span>
</figcaption>
</figure>
<p>Chief Justice Vaughan famously <a href="https://en.wikipedia.org/wiki/Bushel%27s_Case">ruled</a> in 1670 that jurors could not be punished simply for returning a verdict which the trial judge disagreed with. He was happy to punish jurors in some circumstances, however, having convicted two jurors of “embracery” the previous year. </p>
<p>Embracery occurred where threats or bribes were used in order to encourage jurors to return a favourable verdict. It was an offence both to try to “embrace” a juror and to be “embraced” when actually serving as a juror. </p>
<p>One embracer was convicted as late as 1975, although the Court of Appeal complained that a simple charge of contempt of court would have been better. This stopped any further prosecutions for embracery, and the offence was <a href="https://www.legislation.gov.uk/ukpga/2010/23/section/17">formally abolished in 2010</a>.</p>
<h2>Perverting the course of justice</h2>
<p>Perverting the course of justice as a juror is a broader offence than embracery, but it works in a similar way. It’s possible both for the person interfering with a jury, and for a juror who accepts a bribe or is otherwise compromised, to be punished. The offence still exists today, but prosecutions of jurors for perverting the course of justice have always been rare. </p>
<p>As recently as 2011, the Court of Appeal <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2011/1629.html">made reference</a> to the option of prosecuting jurors under this offence where a juror had been communicating with a defendant, but judges seemed satisfied with the more conventional charge of contempt of court made against the juror. </p>
<h2>Contempt of court – and new offences</h2>
<p>Contempt of court is a broadly defined offence, consisting essentially of anything which undermines the authority of the court. A famous example of jurors punished for contempt came in 1670, when several jurors – including their foreman, Edward Bushel – were imprisoned for refusing to convict a pair of Quaker preachers. The Court of Common Pleas, ruling in Bushel’s case, held that juror punishment in these circumstances was unlawful. But the fact that judges could not longer punish jurors simply for returning verdicts with which the judges disagreed doesn’t mean that jurors are completely protected from contempt proceedings today. </p>
<p>In recent years, several jurors have <a href="http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-16676871">been imprisoned for contempt</a> after disobeying clear judicial instructions not to go online in order to find additional evidence in the cases they are trying.</p>
<p>In 2015, four <a href="http://www.legislation.gov.uk/ukpga/2015/2/part/3/crossheading/juries-and-members-of-the-court-martial/enacted">new criminal offences were created</a> relating to independent research done by jurors. These new offences were intended to “send a message” to potential jurors that the government takes juror misconduct very seriously. It is now a criminal offence – triable by jury – for anyone acting as a juror to:</p>
<ul>
<li>Research the case they are trying as a juror.</li>
<li>Disclose the product of any such research to a fellow juror.</li>
<li>Act in any other way which demonstrates an intention to reach a conclusion based on something other than the evidence presented in court.</li>
<li>Solicit or disclose the details of the jury’s deliberations to people who were not on the jury.</li>
</ul>
<p>In September 2017, the foreman of a jury <a href="https://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">was sentenced to four months’</a> imprisonment after going online to research some of the details of the case he was trying. </p>
<h2>Rebukes from the bench</h2>
<p>Beyond these formal kinds of punishment which are still possible, it’s also possible for judges to simply rebuke their jurors. In 1917, a group of jurors were kept in a state of <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">virtual imprisonment</a> after a falling out with their judge. They were told they would never serve on another jury, but that they must still report for jury service for several weeks, on pain of punishment under the contempt laws if they failed to attend. </p>
<p>In the case in November 2017, the jury at Winchester Crown Court was warned that they should not bully each other during their deliberations. Before they were discharged, they <a href="https://www.theguardian.com/uk-news/2017/nov/23/jury-dismissed-in-trial-of-man-emile-cilliers-accused-of-tampering-with-wifes-parachute">wrote a note</a> to the court, complaining that: </p>
<blockquote>
<p>Collectively we feel we have had no opportunity to defend ourselves and our integrity which has further implications on us personally and professionally.</p>
</blockquote>
<p>But while these jurors might feel slighted, at least they did not have to face formal sanctions. As the trial judge explained to them, it was his responsibility to keep an eye on any misconduct, and to find some way to “flush it out”.</p><img src="https://counter.theconversation.com/content/88432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>K Crosby has previously received funding relevant to this article from the Society of Legal Scholars. </span></em></p>A history of how jurors have faced trial themselves for getting it wrong, or slipping up in court.K Crosby, Senior Lecturer in Law, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/929752018-03-09T14:00:07Z2018-03-09T14:00:07ZWomen should be allowed to wear the niqab in court – here’s why<figure><img src="https://images.theconversation.com/files/209346/original/file-20180307-146671-msd9mb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/niqab-long-tunic-that-covers-completely-595364105?src=GFujb4ZSduC9qng_YHb80Q-1-0">Satur/Shutterstock.com</a></span></figcaption></figure><p>The debate about whether a woman who wears the niqab should be allowed to do so when giving evidence in court is one which polarises opinion. The niqab is the full face veil worn by a small number of Muslim women. Unlike <a href="https://www.telegraph.co.uk/women/life/burka-bans-the-countries-where-muslim-women-cant-wear-veils/">many other countries</a>, the United Kingdom has not sought to criminalise the wearing of full face veils and many consider it to be a legitimate expression of religious belief protected by the European Convention on Human Rights. </p>
<p>But there remains a tension between respecting the rights of a minority to manifest their religion and the needs of the courts to ensure trials are conducted fairly. <a href="https://www.judiciary.gov.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february2018-v5-02mar18.pdf">New guidance</a> issued to judges in reminds them of the need to consider carefully whether or not a witness should be asked to remove her veil when giving evidence. But does it strike the right balance?</p>
<p>The number of niqabis in England and Wales (the jurisdiction to which the guidance applies) is unknown, but they represent small proportion of the population – and cases where a judge is required to make a ruling involving the niqab are rare. When these cases do arise they are subject to enormous public scrutiny. In 2013, the judge Peter Murphy made headlines when he <a href="https://www.judiciary.gov.uk/judgments/thequeenvd/">ruled</a> that a defendant in a criminal trial could wear her niqab for the duration of her trial but if she wanted to give evidence in her defence she had to remove it. Many <a href="http://www.felicitygerry.com/felicity-writes-halsburys-law-exchange-ruling-defendant-must-remove-face-covering-give-evidence/">praised</a> the judge’s pragmatic approach to the situation, but others were concerned that it represented a disproportionate intrusion into how a person could dress.</p>
<h2>Objection!</h2>
<p>The <a href="https://www.theguardian.com/law/2013/sep/17/veil-court-ruling-wrong-balance">most common objection</a> to the wearing of the niqab is that it prevents the fact-finder seeing the witness’s face and detecting changes in demeanour that might be a clue that the witness is lying. Without this, <a href="https://www.telegraph.co.uk/news/uknews/law-and-order/11290365/Remove-Muslim-veil-when-giving-evidence-in-court-says-top-woman-judge.html">it is argued</a>, there is a risk that a jury might fail to realise that a witness is lying or has something to hide and reach the wrong decision. The harm caused by this would outweigh any harm caused by interfering with an individual’s right to manifest her religion. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/209347/original/file-20180307-146700-ckobes.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/209347/original/file-20180307-146700-ckobes.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=343&fit=crop&dpr=1 600w, https://images.theconversation.com/files/209347/original/file-20180307-146700-ckobes.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=343&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/209347/original/file-20180307-146700-ckobes.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=343&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/209347/original/file-20180307-146700-ckobes.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=431&fit=crop&dpr=1 754w, https://images.theconversation.com/files/209347/original/file-20180307-146700-ckobes.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=431&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/209347/original/file-20180307-146700-ckobes.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=431&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">How much does a person’s demeanour actually influence a jury?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/twelve-jurors-sit-jury-box-court-729558217?src=NdJFKClhKz-7RKsv5Y3WWA-1-2">Aleutie/Shutterstock.com</a></span>
</figcaption>
</figure>
<p><a href="http://irep.ntu.ac.uk/id/eprint/27752/">My research</a> indicates that the approach taken by judges all over the world is to assume that the veil will hamper the assessment of credibility and order its removal to ensure a fair trial. While this argument seems compelling, it is based on flawed assumptions. It has been established that people are generally very poor at using demeanour to assess credibility – indeed, <a href="http://psycnet.apa.org/record/2016-31604-001">recent research</a> has established that assessments of credibility are more reliable when the witness has their face covered. And if there is no evidence to support to prove wearing the veil does impact upon the trial process, then there is no basis to order its removal.</p>
<p><a href="http://www.dailymail.co.uk/debate/article-2421455/MELANIE-PHILLIPS-No-human-right-hide-justice-veil.html?ito=feeds-newsxml">Many would argue</a> that there is little harm in requiring a witness to remove her veil and that as the veil is a sign of male subjugation and should not be protected. But this is too broad an approach to a complex issue. Many women choose to cover their face as a matter of choice to achieve a state of piety. The wearing of the niqab is a visible representation of this and being required to remove it represents an invasion with their deeply held beliefs. </p>
<h2>Seen but not heard?</h2>
<p>Unlike many other public spaces (such as schools), courts often offer individuals no control over how people engage with them. Someone who wishes to seek the protection of the law often has no choice but to proceed through the courts. If a victim of a criminal offence wants the protection of the police, they make their complaint knowing that ultimately they may be required to give evidence in court. </p>
<p>In this context, the <a href="http://www.bbc.co.uk/news/uk-41648865">worrying rise in hate crime</a> towards Muslims since 2016 is relevant. Many of the victims of these attacks have been singled out because of their clothing. Women who wear the niqab have been <a href="https://www.theguardian.com/world/2013/nov/20/muslim-women-islamaphonic-attacks">particularly vulnerable</a> to such attacks, with attackers often seeking to humiliate them by removing the niqab. For the victim of such an attack, the prospect of having to further compromise their beliefs by removing their veil in court can only add to their sense of persecution. This may discourage them from seeking help at all.</p>
<p>Despite the importance of this issue, there is no guidance in legislation or from the appeal courts. The <a href="https://www.judiciary.gov.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february2018-v5-02mar18.pdf">latest edition</a> of the Equal Treatment Bench Book reminds judges to only require removal of the veil where they consider it to be “essential” and reminds judges hearing non-criminal cases of the fallibility of evaluation of credibility from demeanour. But judges in criminal trials are told that not removing the veil might impair the court’s (so the jury’s) ability to evaluate reliability. </p>
<p>Although the language of the guidance provides some clarity, and stresses the need for sensitivity, it still suggests that juries benefit from seeing witness’s face when there is no basis for doing so and implies that where it is the defendant who wishes to wear the veil they should remove it to give evidence. There may be always be exceptional cases which justify the removal of the veil and judges should have the power to order this, but it is not enough to do so on the basis of what the jury may or may not think.</p>
<p>A better course of action would be to permit the wearing of the niqab where it has been requested and to direct the jury that it makes no difference to their assessment of the evidence. For a justice system to truly represent all of society it must ensure that the most marginalised groups are able to access it without having to compromise their beliefs unless it is absolutely necessary.</p><img src="https://counter.theconversation.com/content/92975/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeremy Robson 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>The principle argument as to why women should remove the niqab in court seems compelling, but it is based on flawed assumptions.Jeremy Robson, Senior Lecturer Faculty of Business and Law, De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/907022018-03-04T07:45:08Z2018-03-04T07:45:08ZWhy South Africa needs formal rules for class action lawsuits<figure><img src="https://images.theconversation.com/files/207545/original/file-20180222-152363-yx0xcn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>What do <a href="https://www.timeslive.co.za/news/south-africa/2018-01-12-ford-offers-kuga-owners-settlements-to-squash-class-action-suit/">Ford</a>, <a href="https://www.ft.com/content/16bf42ac-6baf-11e7-b9c7-15af748b60d0">AngloGold Ashanti, Gold Fields</a> and Tiger Brands have in common? They are just a few of the well-known companies in South Africa facing class actions: lawsuits filed on behalf of a group. </p>
<p>The international retail group <a href="https://www.fin24.com/Companies/Retail/sa-investors-want-to-join-dutch-class-action-against-steinhoff-report-20180112">Steinhoff</a> could soon join the list. South African shareholders and the Dutch Investors Association plan to launch a lawsuit against Steinhoff following allegations of accounting fraud.</p>
<p>Class actions against businesses like these can improve access to justice because they reduce the expense of litigation. It’s much more expensive for individuals to pursue a case on their own, so many claims are never judged and claimants don’t get justice. Class actions also deter antisocial behaviour by companies.</p>
<p>South Africa is seeing a growing body of class actions. The country’s constitution clearly provides for it and a practical way of going about it is starting to emerge. </p>
<p>A number of cases brought before the courts have started to build a <a href="https://www.werksmans.com/wp-content/uploads/2016/08/061416-Silicosis-Class-Action-Case.pdf">framework</a> to guide class actions.</p>
<p>But there is still a gap. There are still no laws passed by parliament or rules set by courts to regulate the procedure. My recent <a href="http://scholar.sun.ac.za/handle/10019.1/102706">doctoral study</a> aimed to develop a statutory structure that could help fill this gap.</p>
<h2>Examples from other countries</h2>
<p>South Africa may be able to learn from the examples of other jurisdictions, such as the <a href="https://www.google.co.za/search?ei=mU-WWtHUEIf9Up3DviA&q=he+US+United+states+class+action+procedure+law&oq=he+US+United+states+class+action+procedure+law&gs_l=psy-ab.3...25853.33397.0.33668.22.17.2.0.0.0.690.2827.2-2j1j2j2.7.0....0...1c.1.64.psy-ab..16.0.0....0.uT5nySptKPA">US</a> and <a href="https://uk.practicallaw.thomsonreuters.com/2-618-0466?transitionType=Default&contextData=(sc.Default)&firstPage=true">Ontario</a>, Canada, that have developed statutory frameworks to guide class actions.</p>
<p>Apart from being widely regarded as the leaders in the field of class action litigation, these countries share key commonalities with South Africa’s justice system. Their civil procedures are of English common law origin in terms of which the law is largely derived from judicial precedent, compared to civil law systems where codified statutes predominate. They also have an adversary system of litigation, which is characterised by party control and a passive and aloof judge. </p>
<p>One of the biggest challenges with these class action jurisdictions is that they are being increasingly invaded by frivolous claims and settlements driven by lawyers who see the class action spaces as a moneymaking machine. They overload the system with cases that serve their hunger for fees first – and the rights of the class action members become secondary.</p>
<p>The US and Canada have put in place measures to counter frivolous settlements. These include giving courts pre-screening powers and a discretion to pre-approve or reject settlements.</p>
<p>South Africa may need to go the settlement pre-screening route to avoid this problem. Deputy Judge President Phineas Mojapelo, in the recent silicosis litigation, <a href="https://www.groundup.org.za/article/understanding-silicosis-judgment/">hinted</a> at this when he said that settlements concluded after certification, in other words after the court approves the institution of a class action so that it can proceed to trial, should be subject to court approval. </p>
<p>It seems that South Africa will follow suit, notwithstanding the absence of legislation regulating the mechanism.</p>
<h2>Reasons for clarity</h2>
<p>One of the objectives of class actions is achieving judicial economy – in other words joining together a number of lawsuits that would otherwise have been brought separately. Judicial economy in this context also means that the class action would contribute to the efficient use of the courts’ resources and the consistency of judgments rendered by it.</p>
<p>In South Africa, it has been left to the courts to develop the procedural framework for class action . This makes for an ad hoc approach which is not ideal. A haphazard approach could lead to legal uncertainty or judicial inconsistency.</p>
<p>This is because a class action could be necessary to achieve one or all of three things: </p>
<ul>
<li><p>access to justice; </p></li>
<li><p>judicial economy; and </p></li>
<li><p>changes in behaviour. </p></li>
</ul>
<p>South African courts need to know which of these apply to each case. </p>
<p>But the primary consideration should be class members’ right to have <a href="https://probonomatters.co.za/2016/06/pro-bono-a-transformation-issue-for-south-africas-legal-fraternity/">access justice</a>. Where poor claimants are unable to litigate individually through joinder (a single trial where the right to relief of the persons joined depends upon the determination of substantially the same question of law or fact), a court should allow the matter to proceed as a class action. This ensures that the claimants’ financial and social circumstances don’t prevent them from getting justice. </p>
<p>The primary difficulties associated with joinder is that it is a cumbersome and costly process. And where individual claimants are poor, uneducated and lack access to resources, or where the class is large, joinder may in fact be inappropriate. A court ordering joinder in these circumstances could potentially undermine the rationale of providing access to justice. </p>
<p>It’s also important for courts to consider how they will manage a class action. This is because they are more complex than other kinds of litigation and require greater administration and management. If proceedings become unmanageable, the action may have to be stopped. So courts should consider whether claims are large enough to be pursued separately, and the importance of the common issues in relation to the claims as a whole. </p>
<p>In the final analysis, all these matters would be better handled by a statutory framework.</p>
<h2>A call to action</h2>
<p>Despite various problems, inconsistencies and contradictions around class actions, South Africa’s courts have done well to start developing a framework. They have given substance to what could have been an illusory mechanism for resolving disputes. </p>
<p>But the class action law is currently in a state of flux as it tries to shape and position itself within the country’s civil justice system. South Africa needs comprehensive legislation and court rules regulating class actions suits to better serve the principle of access to the justice system.</p><img src="https://counter.theconversation.com/content/90702/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Theo Broodryk 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>South Africa is seeing a growing body of class action.Theo Broodryk, Senior Lecturer and Manager of the Law Clinic, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/880262017-11-29T13:58:48Z2017-11-29T13:58:48ZNew law will stop abuse of South African home owners who default<figure><img src="https://images.theconversation.com/files/196305/original/file-20171124-21853-nu776w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>There are few things as devastating as losing your home because you cannot pay your debt. But if this cannot be avoided, you’d certainly prefer that your property is sold for the best price possible. Then you can hopefully settle your debts and perhaps have enough money left to start over with. </p>
<p>This ideal should now become a stronger possibility for South Africans who struggle to pay back their home loans. A new <a href="http://www.gpwonline.co.za/Gazettes/Gazettes/41257_17-11_NationalRegulation.pdf">law</a>, which is due to come into effect shortly, will for the first time enable courts to set a “reserve price” (minimum price) at which the residential property of a defaulting owner should be auctioned off. </p>
<p>Until now many South Africans have lost their properties to speculators who snap them up at prices that are far below market value. But to sell someone’s home for an unreasonably low price is a <a href="https://www.academia.edu/25083464/R_Brits_Sale_in_execution_of_property_at_unreasonably_low_price_indicates_abuse_of_process_Nxazonke_v_ABSA_Bank_Ltd_2012_ZAWCHC_184_4_October_2012_2013_76_THRHR_451-458">violation</a> of their constitutional housing and property rights – not to mention the negative impact on their dignity and social wellbeing. </p>
<p>In a paper that looked at a <a href="http://www.saflii.org/za/cases/ZAWCHC/2012/184.html">case</a> where a home valued at R81 000 was sold at auction for only R10, I argued that a sale like this would be unconstitutional. I also argued that our law regarding auctions are in drastic need of change due to loopholes like this.</p>
<p>The upcoming amendment of the court rules promises to close the loopholes.</p>
<p>This is an important development that brings South Africa into line with international best practice. For example, <a href="http://noack-immobilienberatung.de/en/hints_en.php">German law</a> already prescribes certain set minimums at which the property must be auctioned. </p>
<p>Introducing similar rules in South Africa means that the country’s home owners and in particular bond holders will be better protected when faced with financial difficulties. It is estimated that South Africa has about <a href="https://www.moneyweb.co.za/investing/property/a-look-at-sas-massive-property-sector-value/">6.1 million</a> formal homes. About <a href="https://businesstech.co.za/news/lifestyle/94083/surprising-number-of-sa-home-owners-are-bond-free/">30%</a> of them are bonded. Reliable figures are hard to come by but some estimates suggest that <a href="https://www.moneyweb.co.za/news/economy/the-medieval-state-of-sas-home-repossessions-industry-2/">thousands of homes</a> are repossessed and auctioned in South Africa each year.</p>
<p>The upcoming amendments include a number of things that relate to the auctioning of homes by creditors. The most important change will be that a court will be able to set a minimum price at which the bidding must start, taking into consideration a number of factors: such as the market value of the property, the amount owed in taxes and levies, and the amount owed to the bank.</p>
<h2>A constitutional matter</h2>
<p><a href="https://www.google.co.za/search?q=section+26+of+the+constitution&rlz=1C1CHWA_enZA699ZA699&oq=section+26+&aqs=chrome.1.69i57j0l5.10175j0j7&sourceid=chrome&ie=UTF-8">Section 26 of South Africa’s constitution</a> protects people from being evicted from their homes without a court order and without a good reason based on all the facts of the case. This right also protects citizens against the unjustified loss of a home when one has defaulted on a mortgage payment.</p>
<p>This basically means that the bank should not be able to automatically repossess a home of a defaulting client. Instead the court must balance the interests of the bank and the debtor and then determine if selling the home is the best solution.</p>
<p>For example, if the outstanding home loan debt is very low or if the financed person is behind with only a couple of instalments, loss of the home should not be allowed easily. Alternatives should be considered to settle the debt.</p>
<p>The <a href="http://www.legalrights.co.za/wp-content/uploads/2017/03/NATIONAL-CREDIT-ACT-NO.-34-OF-2005.pdf">National Credit Act of 2005</a> is helpful because it protects struggling debtors in several ways. A defaulting mortgage debtor can for instance apply for debt review and then possibly receive a new, more affordable payment plan. But this Act doesn’t provide protection during the actual sale of the debtor’s home. So the new court rules come as a welcome addition to close the loopholes. </p>
<h2>The need for change</h2>
<p>Despite the constitutional provisions and the National Credit Act, there have been some loopholes that were exploited by unscrupulous operators.</p>
<p>The major loophole was that after the court has ruled that the property should be auctioned, it could be sold for whatever the highest offer might be. Banks could set a minimum price. But banks tended to set a low minimum price, just enough to cover their claims. </p>
<p>A bank could even decide to auction the house without a minimum price if no one was willing to buy it at the set minimum. The owner of the property could not insist on a minimum price.</p>
<p>As a result, it often happened that speculators would snatch up properties for ridiculously low amounts at poorly attended auctions and then sell them on the private market for huge profits. The owner then suffers a massive loss because he or she must still pay the remaining debt, while someone else profits from the true value of the property. </p>
<p>Recently 225 former homeowners tried to sue the banks for the losses they suffered when their homes were sold for ridiculously low amounts. They lodged a <a href="https://www.fin24.com/Companies/Financial-Services/r60bn-home-repossession-suit-against-banks-20170816">R60 billion law suit</a> with the country’s Constitutional Court. The suit set out to claim damages suffered from repossessions undertaken by South Africa’s big banks. The respondents were Nedbank, Absa, FirstRand Bank (FNB’s parent company) and Standard Bank. The applicants claimed that they were abused by banks who sold their properties far below their market values after they defaulted on their mortgages. The <a href="https://www.groundup.org.za/article/r60bn-constitutional-court-case-against-banks/">suit</a> was lodged with the Constitutional Court because applicants believed that the abuse was a constitutional matter.</p>
<p>But the court disagreed and <a href="https://www.moneyweb.co.za/news/south-africa/concourt-dismisses-application-in-home-repossessions-case/?utm_content=bufferd252e&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer">declined to hear the case</a>, mostly for procedural reasons.</p>
<h2>More can be done</h2>
<p>The amendment of court rules in themselves should certainly close the gaps exploited by unscrupulous operators. But there will be a need for complementary action to make the new rules even more efficient. The system should for example ensure that auctions are better advertised and better attended.</p>
<p>It’s not clear how the wrongs of the past can be corrected, but at least the new rules are a big step in the right direction to ensure justice in the auction industry going forward.</p><img src="https://counter.theconversation.com/content/88026/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Reghard Brits has received funding from the National Research Foundation (NRF) in the form of bursaries for his doctoral studies (2010-2012) and postdoctoral fellowship (2013-2015). From 2018 he will also be a NRF C2 rated researcher.</span></em></p>A change in South African law promises to protect defaulting home owners from abuse by unscrupulous operators who snap up people’s homes for a song.Reghard Brits, Senior Lecturer in Mercantile Law, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/870222017-11-09T13:39:13Z2017-11-09T13:39:13ZZuma’s allies are once again gung-ho about nuclear. Will they get their way?<figure><img src="https://images.theconversation.com/files/193533/original/file-20171107-1068-lvvdwq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's new Energy Minister David Mahlobo, has launched a fresh push to bag the nuclear energy build programme.</span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p><em>South Africa’s nuclear build programme seems to be <a href="https://www.news24.com/SouthAfrica/News/mahlobo-rushes-nuclear-deal-20171105-2">back on the agenda</a> after earlier indications that it was dead. Recent <a href="https://www.enca.com/south-africa/those-opposed-to-nuclear-sold-out-to-the-west-zuma">comments</a> by President Jacob Zuma and his new minister of energy David Mahlobo, signal a final push to bag the nuclear deal while Zuma is still in power. In December Zuma’s term as president of the African National Congress will come to an end when the ruling party elects a new leadership. His term as president of the country ends in 2019. The Conversation Africa’s Business and Economy Editor, Sibonelo Radebe, asked Keith Gottschalk to assess the situation.</em></p>
<p><strong>Is it still possible for the Zuma administration to bag the nuclear energy programme?</strong> </p>
<p>The worsening financial plight of the state and its parastatals makes the estimated R1 trillion rand cost of the proposed nuclear build programme increasingly unaffordable. The new Finance Minister Malusi Gigaba <a href="https://theconversation.com/south-africas-finance-minister-admits-situation-is-grave-but-offers-no-solutions-86373">said as much</a>. Slow economic activity is squeezing the tax revenue base while social expenditure demands keep rising. This has caused the <a href="https://theconversation.com/latest-budget-underscores-desperate-state-of-south-africas-finances-86362">deficit indicators</a> to rise a cause for serious concern. Its ludicrous for government to insist on adding the humongous nuclear build programme into such dire state of public finances.</p>
<p>It’s also important to consider that government’s atomic ambitions go far beyond the 9 600 MW of extra nuclear power stations. It also wants to rebuild a uranium enrichment plant that dates back to former <a href="http://www.sahistory.org.za/article/dismantlement-south-africa039s-nuclear-weapons">apartheid-era</a> President PW Botha in the 1980’s. South Africa gave up its nuclear capability in 1989. It was the only country in Africa that had the ability to make a nuclear bomb.</p>
<p>Zuma’s administration wants to <a href="https://mg.co.za/article/2017-10-20-00-zuma-set-to-blast-a-nuclear-path">regain</a> some of the lost nuclear capacity. It wants to construct a fuel element fabrication factory. It has talked of a nuclear fuel reprocessing plant. All these also bear steep price tags.</p>
<p><strong>What can stop it?</strong></p>
<p>It’s been reported that Mahlobo, the former state security minister turned energy minister, <a href="https://www.news24.com/SouthAfrica/News/mahlobo-rushes-nuclear-deal-20171105-2">wants to rush</a> through the new process of guiding the nuclear energy plan into fruition. So it’s not going to be easy to stop it.</p>
<p>But South Africa’s nuclear ambitions face stiff opposition from different directions. These include environmentalist critics of nuclear power generation who use a blend of media, street theatre, objections at public consultation processes, and lawfare to try and stop the government’s ambitions. </p>
<p>The SA Faith Community Environmental Initiative group won an important victory earlier this year when the Cape High Court ruled that the government had not followed due process in its nuclear energy plans, and that they had to be <a href="https://theconversation.com/court-ruling-on-zumas-nuclear-deal-is-a-marker-of-south-africas-political-health-76870">halted</a>. This effectively sent government back to square one. </p>
<p>Opposition parties have also been active, using parliamentary channels. They’re also considering taking the legal route to halt the nuclear juggernaut. </p>
<p>And there is palpable opposition within the ANC itself. A number of ANC branches sent motions critical of the costs of nuclear electricity to the ANC’s National Policy Conference. That conference’s report censored out all these motions.</p>
<p><strong>The administration seems to be pulling out all the stops to bag this programme: What’s at stake?</strong> </p>
<p>By now, scandal-weary South Africans will react by saying: follow the money. In December 2016 the government dropped the bombshell that the procurement of its nuclear build programme would be <a href="https://www.iol.co.za/news/politics/eskom-to-take-charge-of-nuclear-build-programme-2078673">taken away</a> from the department of energy and done instead through Eskom.</p>
<p>The reason became clear when months of media headlines <a href="https://www.news24.com/SouthAfrica/News/download-the-full-state-of-capture-pdf-20161102">revealed</a> that Eskom’s procurement mechanisms had been infiltrated and subverted by the Gupta family conglomerate to become a corporate feeding trough. With close ties to Zuma the Guptas stand accused of operating an elaborate mission to capture state business with a keen eye on the nuclear energy build programme</p>
<p>Every nuclear build contract, from “consulting” to turbines, would be inflated by one-fifth to build in the kickbacks to the corrupt middlemen tenderpreneurs.</p>
<p><strong>Does South Africa need nuclear energy at this stage?</strong></p>
<p>South Africa does not need nuclear energy at any stage. </p>
<p>About a decade ago, the government argued that South Africa’s economic growth was 5% per year every year, and that the resultant increase in electricity demand necessitated building 9 600 MW of <a href="http://safcei.org/wp-content/uploads/2017/03/Appendix-A-Review-of-the-Integrated-Resource-Plan-Update-Professor-Steve-Thomas.pdf">new nuclear power stations</a>. Critics pointed out that these <a href="http://m.fin24.com/fin24/Economy/Eskom/call-for-sa-to-halt-energy-decisions-20161104">figures were inaccurate</a>. </p>
<p>Economic growth has shrunk significantly since then together with future projections of electricity demand. But the government still insist that the 9 600 MW of nuclear power proposition is backed by economic fundamentals. Clearly, this is a political decision uncoupled from economic realities.</p>
<p>On top of this, the most <a href="https://theconversation.com/why-south-africa-should-not-build-eight-new-nuclear-power-stations-49967">cost-effective</a> generation of electricity would be a blend of imported hydro, imported gas, solar and wind. But these avenues seems to have been blocked by nefarious agendas.</p>
<p>In 2010, the department of energy proudly announced a <a href="http://www.engineeringnews.co.za/print-version/upington-solar-park-south-africa-2010-10-22">5 000 MW solar park</a> to be built outside Upington. It hosted an international investors’ conference to kickstart progress. Since then, nothing has happened.</p>
<p>In 2014 the department proudly put up on the internet a slide show of how the Zuma and the DRC’s President Kabila had <a href="https://www.ujuh.co.za/movement-on-the-grand-inga-hydropower-project/">signed a treaty</a> guaranteeing South Africa over 10 000 MW of imported hydropower once the Inga dams were constructed.</p>
<p>By December 2016 the department had effectively airbrushed these out of its presentations. Clearly, political power had been applied to compel the department to drop Eskom’s renewable division, and to suck up to its nuclear division. Which political power this was, became exposed this week when Zuma <a href="http://ewn.co.za/2017/11/06/zuma-slams-critics-of-nuclear-programme">smeared opponents</a> of his nuclear plans as western puppets.</p>
<p><strong>What are global trends saying about nuclear energy?</strong> </p>
<p>The building of new nuclear power stations in developed countries is drastically <a href="https://mg.co.za/article/2017-09-15-00-world-renewables-blow-nukes-up">declining</a>. The UK is alone in signing a contract to build a new one. Nuclear vendors have stepped up their sales campaigns in developing countries to compensate.</p><img src="https://counter.theconversation.com/content/87022/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk 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>South Africa’s President Jacob Zuma seems to be making a final push to secure the nuclear power deal before his tenure comes to an end. But it won’t be easy.Keith Gottschalk, Political Scientist, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/841592017-09-22T00:36:47Z2017-09-22T00:36:47ZEvery year, millions try to navigate US courts without a lawyer<figure><img src="https://images.theconversation.com/files/186438/original/file-20170918-8285-10khwo2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Going to court? You're on your own.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/symbol-law-justice-empty-courtroom-concept-170949320">tlegend/shutterstock.com</a></span></figcaption></figure><p>Judge Richard A. Posner, a legendary judicial figure, retired abruptly earlier this month to make a point: People without lawyers are mistreated in the American legal system.</p>
<p>In one of his <a href="http://cases.justia.com/federal/appellate-courts/ca7/16-2471/16-2471-2017-05-22.pdf?ts=1495488652">final opinions</a> as a judge on the United States Court of Appeals for the Seventh Circuit, he <a href="https://nyti.ms/2xVeS8m">expressed frustration</a> at the dismissal of one self-represented litigant’s lawsuit, writing that the prisoner, Michael Davis, “needs help – needs it bad – needs a lawyer desperately.” </p>
<p>Unfortunately, Davis’s circumstances are far from unique. Many lower-income people have no lawyer to help them navigate the legal system, either in civil or criminal cases. </p>
<p><a href="https://nyti.ms/2kNdLo2">Eighty percent</a> of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2943412">no right to an attorney</a>, and those who cannot afford a lawyer will go without one. </p>
<p>Unlike in the criminal context, there’s no federal constitutional <a href="http://civilrighttocounsel.org/">right to counsel in civil cases</a>. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case. </p>
<p>As directors of the <a href="http://law.gsu.edu/a2j">Center for Access to Justice</a> at Georgia State University College of Law, we agree with Judge Posner. People like Michael Davis desperately need help. Without legal assistance, their issues will likely be unresolved or, worse, wrongly resolved against them.</p>
<h1>Unrepresented</h1>
<p>In some states, as many as 80 to 90 percent of litigants are <a href="http://ssrn.com/abstract=2613648">unrepresented</a>, even though their opponent has a lawyer. The number of these “pro se litigants” has <a href="https://nyti.ms/2y99gHy">risen substantially</a> in the last decade, due in part to the <a href="http://www.abajournal.com/files/Coalition_for_Justice_Report_on_Survey.pdf">economic downturn</a> and the relationship between poor economic conditions and issues like housing and domestic relations. </p>
<p>The Legal Services Corporation, the single largest funder of civil legal aid for low-income Americans in the nation, <a href="https://www.lsc.gov/media-center/publications/2017-justice-gap-report">reported in June</a> that 86 percent of low-income Americans receive inadequate or no professional legal help for the civil legal problems they face. Here in Georgia, state courts heard <a href="http://www.gasupreme.us/2017-state-of-judiciary-address">more than 800,000 cases</a> involving self-represented litigants in 2016 alone.</p>
<p>In some types of cases, not having counsel can make a dramatic difference. Take the example of low-income tenants facing eviction. Across the county, roughly <a href="https://nyti.ms/2k0h6fQ">90 percent</a> of landlords are represented by counsel, while 90 percent of tenants are not. Simply having a lawyer increases the odds of being able to stay in one’s home. When tenants represent themselves in New York City, they are evicted in nearly 50 percent of cases. With a lawyer, they win <a href="https://nyti.ms/2mz3MS0">90 percent of the time</a>.</p>
<h1>Navigating the system</h1>
<p>Why is having a lawyer so important? The reality is that even the most mundane legal matters can require dozens of steps and complex maneuvering.</p>
<p>In one study, researchers identified <a href="http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1572&context=fac_schol">almost 200 discrete tasks</a> that self-represented litigants must perform in civil cases – from finding the right court to interpreting the law, filing motions, compiling evidence and negotiating a settlement. Some of these tasks require specialized knowledge of the law and of the court system. Almost all require time away from work and caring for children. Many also require the ability to get to the courthouse, to read and to speak English or access a translator.</p>
<p>The <a href="http://a2jlab.org/">Access to Justice Lab</a> at Harvard Law School has also tracked how labyrinthine the justice system can be. Just starting a routine process – like establishing a <a href="http://a2jlab.org/guardianship-service-of-process-and-a2j/">legal guardian for a minor</a> – can take many steps, and even these can vary in unexpected ways, given the natural variation among judges and the particulars of a specific case.</p>
<p>Regardless of the type of case, missing <a href="http://a2jlab.org/youve-been-served/">just one step</a> could mean you have to start the process all over again or even cause the case to be dismissed, sometimes without the option to refile.</p>
<p>People often quip that there are far too many lawyers. Yet the reality is that, while there are a lot of lawyers in certain geographic areas and certain specialties, in many rural areas – sometimes referred to as “legal deserts” – there are actually far too few lawyers. </p>
<p><a href="http://www.law.gsu.edu/a2j">Our center</a> recently published a <a href="http://law.gsu.edu/center-access-justice/research/">map</a> of Georgia’s legal deserts. In our state, there are five counties without any lawyers at all and another 59 with 10 lawyers or fewer. </p>
<iframe src="https://cwigington3.github.io/AccessToJustice/" width="100%" height="480" scrolling="yes" class="iframe-class" frameborder="0"></iframe>
<p>To make matters worse, in many of those counties, public transportation and internet access are sparse, and a significant percentage of the population doesn’t even have access to a vehicle. </p>
<p>The <a href="https://www.srln.org/">Self-Represented Litigation Network</a>, a nonprofit focused on reforming the system to help those representing themselves, has also used <a href="https://arcg.is/0jOezP">mapping tools</a> to depict how access to the justice system can vary across the country and sometimes even within the same state. </p>
<h1>Changing the statistics</h1>
<p>So, what do we do about the fact that the legal system is, for many people without a lawyer, nearly impossible to navigate? We believe that it will take a variety of different approaches to solve this issue.</p>
<p>Some experts, like John Pollock with the <a href="http://www.civilrighttocounsel.org">National Coalition for a Civil Right to Counsel</a>, have focused on expanding the right to counsel in <a href="http://civilrighttocounsel.org/">civil cases implicating basic human needs</a>. Others have advocated for expansion of the right to counsel in lower-level criminal cases where the <a href="http://time.com/76356/a-misdemeanor-conviction-is-not-a-big-deal-right-think-again/">consequences</a> – including obstacles to housing or employment, or deportation – can still be incredibly high.</p>
<p>In <a href="http://www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians">Washington</a>, nonlawyers can be trained and licensed to offer legal support to those unable to afford the services of an attorney.</p>
<p>Still others, like Self-Represented Litigation Network founder <a href="https://accesstojustice.net/about/">Richard Zorza</a>, emphasize <a href="http://www.zorza.net/Simple.pdf">simplification</a> of legal processes, including changing or eliminating the procedural and evidentiary rules that make the process so difficult. For example, the Tennessee Supreme Court has approved <a href="http://www.chattanoogan.com/2016/10/31/335174/Tennessee-Supreme-Court-Adopts-Forms.aspx">plain-language forms and instructions</a>, written at a fifth- to eighth-grade reading level, for use in uncontested divorces between parties with minor children.</p>
<p>Maybe it’s a matter of increasing available <a href="https://www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/self_service_centers.html">self-help resources</a> or placing the <a href="http://ssrn.com/abstract=2613648">onus on the courts</a> and requiring judges to play a more active role in solving the problem. </p>
<p>Which approach is best? It may depend on the case – and an effective solution will include a combination of the above. Some cases will require nothing less than full-service representation by a lawyer, while in other contexts, streamlined procedures and simpler forms may be sufficient for pro se litigants to get a fair shake. </p>
<p>Whatever the solution, the problem is clear: Self-represented litigants’ grievances are real and, for too many, justice is out of reach.</p><img src="https://counter.theconversation.com/content/84159/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lauren Sudeall Lucas is the Faculty Director of the Center for Access to Justice at the Georgia State University College of Law. She serves on the American Bar Association's Standing Committee on Legal Aid and Indigent Defendants and on the board of directors of the Southern Center for Human Rights. She has received research funding for a study regarding the civil legal needs of indigent criminal defendants from the Charles Koch Foundation.</span></em></p><p class="fine-print"><em><span>Darcy Meals is the Assistant Director for the Center for Access to Justice at Georgia State University College of Law and is the co-chair of the Leadership Council for the Southern Center for Human Rights. </span></em></p>Many who represent themselves in court fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.Lauren Sudeall, Associate Professor of Law; Faculty Director, Center for Access to Justice, Georgia State UniversityDarcy Meals, Assistant Director, Center for Access to Justice, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/826682017-08-22T15:06:28Z2017-08-22T15:06:28ZCentral bank case exposes incompetence of South Africa’s public protector<figure><img src="https://images.theconversation.com/files/182800/original/file-20170821-27163-1krbidt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa has been rocked by a legal battle between the country's Public Protector and Reserve Bank. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>The South African Reserve Bank has won a critical <a href="https://www.timeslive.co.za/politics/2017-08-15-public-protector-should-reflect-on-her-conduct-court-says/">court battle</a>. The Pretoria High Court has set aside a
ruling by the country’s Public Protector that the central bank’s constitutional mandate should be changed. The Conversation Africa’s Sibonelo Radebe asked Jannie Rossouw to consider the implications of the court’s decision, and the events that led up to it.</em></p>
<p><strong>What do you read from this development?</strong></p>
<p>The judgment clearly shows the Public Protector, Busisiwe Mkhwebane, overstepped the mark in commenting on the constitutional mandate of another <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-09.pdf">Article 9 institution</a>. South Africa has six independent Article 9 institutions which are designed to shore up constitutional democracy. These include institutions like the SA Reserve Bank, the South African Human Rights Commission, the Auditor-General, the Independent Electoral Commission – and the Public Protector itself.</p>
<p>It makes little sense for one of these institutions to want to influence the constitutional mandate of another. Left unchallenged, the Public Protector’s ruling would have led to an untenable situation. It would have implied that the Public Protector could usurp the role of the Constitutional Court. </p>
<p>This raises questions about the ability of the Public Protector to discharge her responsibilities competently and without fear or favour. The Public Protector’s office is meant to act in the best interests of all South Africans, not particular groups.</p>
<p><strong>Where does this case leave the public protector?</strong></p>
<p>The Public Protector should do the honourable thing and simply resign. She is clearly not fit to hold office and is now a national embarrassment. She is also doing damage to the stature of the office she holds.</p>
<p>Her incompetence raises questions about her ruling over two critical issues.</p>
<p>The first was that the constitutional mandate of the Reserve Bank should be amended, implying that the focus of the central bank should not be on inflation. Not only is this finding outside of the scope of her mandate, but it also shows a complete lack of understanding of the functions and policy limitations of a central bank. These could have been explained to her by any undergraduate economics student. She should have had the insight to understand that this mandate is prescribed by the Constitution.</p>
<p>It’s mind boggling that a person in her position could make such a bad mistake. </p>
<p>She also ruled that the Reserve Bank behaved irregularly in not reclaiming a bailout extended to <a href="https://theconversation.com/pursuing-a-30-year-old-bailout-is-sending-south-africa-on-a-wild-goose-chase-79792">Bankorp</a> in the 1980’s. She ordered Absa which acquired Bankorp to pay back the bailout money. Absa has filed an <a href="https://www.timeslive.co.za/sunday-times/business/2017-06-21-in-full-absa-goes-to-court-over-public-protector-report/">application</a> for this ruling to be set aside. </p>
<p>I’m of the view that she also erred in her Bankorp/Absa findings on a number of grounds. The most important are the time lapse since the assistance, which implies prescription and lapse of any claim in this matter. Moreover the Reserve Bank has assisted numerous banks in South Africa on various occasions without the imposition of the same sanction. It would be questionable justice to impose sanction over the Bankorp matter and not in any other instance where the Reserve Bank came to the rescue of banks.</p>
<p><strong>What are the political implications if any?</strong></p>
<p>The court’s judgement has saved South Africa from a <a href="https://theconversation.com/why-south-africas-public-protector-has-overstepped-her-mandate-80026">potential constitutional crisis</a> which would have caused further damage to investor confidence. </p>
<p>A number of key institutions like the Auditor General and the Independent Electoral Commission could be rendered vulnerable if the Public Protector were given free reign. These institutions are supposed to protect public interest but have come under attack in this era of <a href="https://theconversation.com/why-patronage-and-state-capture-spell-trouble-for-south-africa-64704">state capture</a>.</p>
<p>A number of public institutions, government departments and State owned enterprises, have been captured by forces acting in the narrow interest of politicians and their friends. This has placed the country in jeopardy. </p>
<p>Recent developments around the country’s treasury is a perfect example of how far the agents of state capture are prepared to go. South Africans watched with horror how the state capture agents bulldozed their way into the National Treasury. When the previous finance minister Pravin Gordhan stood against attempts to raid the public purse, he had to be <a href="https://theconversation.com/firing-of-south-africas-finance-minister-puts-the-public-purse-in-zumas-hands-75525">fired</a> and the conduct of his successor in the face of state capture is still subject to scrutiny.</p>
<p><strong>What are the economic implications if any?</strong></p>
<p>The South African Reserve Bank is one of few public institutions in South Africa <a href="https://theconversation.com/its-hard-to-get-rid-of-the-governor-of-a-central-bank-heres-why-64836">not tainted</a> by the Gupta-leaks. It therefore symbolises stability and confidence in the South African economy.</p>
<p>It means that the Bank will continue to discharge its constitutional responsibility and its independence is still safeguarded. Its independence serves to protect it from the whims of politicians.</p>
<p>It therefore implies that the bank will continue to focus on containing inflation as a consequence of its unchanged constitutional <a href="https://theconversation.com/why-south-africas-public-protector-has-overstepped-her-mandate-80026">mandate</a> which is to protect the value of the currency in the interest of balanced and sustainable economic growth.</p>
<p>This ruling will help to maintain some confidence in the South African economy, and will go some way towards restoring the slipping sovereign credit rating.</p>
<p>However, much more needs to be done before South Africa will once again have investment grade credit ratings from all major ratings agencies. For one thing, there must be greater policy certainty.</p><img src="https://counter.theconversation.com/content/82668/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jannie Rossouw previously worked for the SA Reserve Bank and holds shares in the SA Reserve Bank. He receives funding from the NRF as a C-rated researcher.</span></em></p>South Africa’s Public Protector, has been exposed as incompetent after trying to meddle with the constitutional mandate of the country’s central bank.Jannie Rossouw, Head of School of Economic & Business Sciences, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/799342017-08-17T10:21:16Z2017-08-17T10:21:16ZLanguage puts ordinary people at a disadvantage in the criminal justice system<figure><img src="https://images.theconversation.com/files/182377/original/file-20170817-13465-1lhwsd6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'Now, did you understand all that?'</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/258602471?src=LaJiTqbrhRB95AO6dvCxdQ-1-16&size=medium_jpg">Shutterstock</a></span></figcaption></figure><p>Language is pervasive throughout the criminal justice system. A textual chain follows a person from the moment they are arrested until their day in court, and it is all underpinned by meticulously drafted legislation. At every step, there are challenges faced by laypeople who find themselves in the linguistic webs of the justice system. </p>
<p>Anyone who reads a UK <a href="http://www.parliament.uk/site-information/glossary/acts-of-parliament/">act of parliament</a>, for example, is met with myriad linguistic complexities. Archaic formulae, complex prepositions, lengthy and embedded clauses abound in the pages of the law. Such language can render legal texts inaccessible to the everyday reader. Some <a href="https://www.routledge.com/The-Routledge-Handbook-of-Forensic-Linguistics/Coulthard-Johnson/p/book/9780415463096">argue</a> (see Vijay Bhatia’s chapter) that this is a deliberate ploy by the legal establishment to keep the non-expert at an arm’s length. </p>
<p>But closer to the truth is the fact that legal language, like all language in all contexts, is the way it is because of its function and purpose. Those drafting laws must ensure enough precision and unambiguity so that the law can be applied, while also being flexible and inclusive enough to account for the unpredictability of human behaviour. </p>
<p>The cost of this linguistic balancing act, however, is increased complexity and the exclusion of the uninitiated. Legal language has long been in the crosshairs of <a href="http://www.plainenglish.co.uk/campaigning/past-campaigns/legal/drafting-in-plain-english.html">The Plain English Campaign</a> which argues for its simplification, claiming that “if we can’t understand our rights, we have no rights”.</p>
<p>It is not only written legal language that presents difficulties for the layperson. Once someone is arrested they go through a chain of communicative events, each one coloured by institutional language, and each one with implications for the next. It begins with the arresting officer <a href="https://www.gov.uk/arrested-your-rights/when-youre-arrested">reading the suspect their rights</a>. In England and Wales, the police caution reads: </p>
<blockquote>
<p>You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.</p>
</blockquote>
<p>This may seem very familiar to many readers (perhaps due to their penchant for police dramas), but this short set of statements is linguistically complex. The strength of the verb “may”; what exactly constitutes “mentioning” or “relying”, and what “questioning” is and when it will take place, are just some of the ambiguities that may be overlooked at first glance. </p>
<h2>What the research says</h2>
<p>Indeed, <a href="http://onlinelibrary.wiley.com/doi/10.1002/casp.658/abstract">research</a> has found that, although people claim to fully comprehend the caution, they are often incapable of demonstrating any understanding of it at all. Frances Rock has also written extensively on the <a href="http://www.palgrave.com/la/book/9780230013315">language of cautioning</a> and found that when police officers explain the caution to detainees in custody, there is substantial variation in the explanations offered. Some explanations add clarity, while others introduce even more puzzles. </p>
<p>This issue of comprehensibility is compounded, of course, when the detainee is not a <a href="https://journals.equinoxpub.com/index.php/IJSLL/article/view/4126">native speaker of English</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/182379/original/file-20170817-13433-14qm0bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/182379/original/file-20170817-13433-14qm0bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=343&fit=crop&dpr=1 600w, https://images.theconversation.com/files/182379/original/file-20170817-13433-14qm0bf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=343&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/182379/original/file-20170817-13433-14qm0bf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=343&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/182379/original/file-20170817-13433-14qm0bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=431&fit=crop&dpr=1 754w, https://images.theconversation.com/files/182379/original/file-20170817-13433-14qm0bf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=431&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/182379/original/file-20170817-13433-14qm0bf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=431&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The word of the law.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/28822681?src=UIhKPAsG5l3hUM0DiMrP3A-1-6&size=medium_jpg">Shutterstock</a></span>
</figcaption>
</figure>
<p>The difficulties in understanding legal language are typically overcome by the hiring of legal representation. Peter Tiersma, in his seminal 1999 book <a href="http://press.uchicago.edu/ucp/books/book/chicago/L/bo3627935.html">Legal Language</a>, noted that “the hope that every man can be his own lawyer, which has existed for centuries, is probably no more realistic than having people be their own doctor”.</p>
<p>However, in the UK at least, <a href="https://www.theguardian.com/law/2016/oct/11/legal-aid-cuts-two-tier-system-amnesty-international-law-justice">cuts in legal aid</a> mean that more people are representing themselves, removing the protection of a legal-language expert. Work by <a href="http://www.bcu.ac.uk/english/staff/tatiana-tkacukova">Tatiana Tkacukova</a> has revealed the communicative struggles of these so-called “litigants in person” as they step into the courtroom arena of seasoned legal professionals.</p>
<p>Trained lawyers have developed finely-tuned cross-examination techniques, and all witnesses who take the stand, including the alleged victim or plaintiff, are likely to be subjected to gruelling cross-examination, characterised by coercive and controlling questioning. At best, witnesses might emerge from the courtroom feeling frustrated, and at worst victims may leave feeling victimised once again. </p>
<p>The work of forensic linguists has led to progress in some areas. For instance, it is <a href="https://www.routledge.com/Representing-Rape-Language-and-sexual-consent/Ehrlich/p/book/9780415205221">long established</a> that the cross-examination of alleged rape victims is often underpinned by societal preconceptions and prejudices which, when combined with rigorous questioning, are found to traumatise victims further. Recent reforms in <a href="https://www.theguardian.com/society/2017/mar/19/victims-rape-spared-ordeal-cross-examination-court">England and Wales</a> provide rape victims with the option to avoid “live” courtroom cross-examination and may go some way towards addressing this issue. </p>
<p>Further afield, an international group of linguists, psychologists, lawyers and interpreters have produced a <a href="http://www.aaal.org/?page=CommunicationRights">set of guidelines</a> for communicating rights to non-native speakers of English in Australia, England and Wales, and the US. These guidelines include recommendations for the wording and communication of cautions and rights to detainees, which aim to protect those already vulnerable from further problems of misunderstanding in the justice system.</p>
<p>Language will forever remain integral to our criminal justice system, and it will continue to disadvantage many who find themselves in the process. However, as the pool and remit of forensic linguists grows, there are greater opportunities to rebalance the linguistic inequalities of the legal system in favour of the layperson.</p><img src="https://counter.theconversation.com/content/79934/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Wright receives funding from The British Academy. </span></em></p>‘If we can’t understand our rights, we have no rights.’ But efforts are being made to rebalance the inequalities.David Wright, Lecturer in Linguistics, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/822302017-08-10T08:43:54Z2017-08-10T08:43:54ZAbolish the oath: moral prejudice against atheists may bias courtroom decisions<figure><img src="https://images.theconversation.com/files/181586/original/file-20170809-32154-ojb7g7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">I solemnly swear. </span> <span class="attribution"><span class="source">via shutterstock.com</span></span></figcaption></figure><blockquote>
<p>I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.</p>
</blockquote>
<p>With this familiar phrase, uttered in some form every day in courts of law around the world, trial witnesses invoke a divine power to bolster their credibility.</p>
<p>In countries such as Britain and Australia, those who prefer not to make a religious commitment can opt instead for a secular affirmation. Rather than citing God as their witness, they instead “solemnly, sincerely and truly declare and affirm” that they will tell the truth. The non-religious option is no less legally binding, but may not be as effective as the religious oath in conveying trustworthiness to onlookers.</p>
<p>Moral suspicion of atheists is widespread and deeply entrenched. In Britain, 22% of survey respondents <a href="http://www.pewglobal.org/2007/10/04/chapter-3-views-of-religion-and-morality/">explicitly agree that morality is impossible without belief in God</a>, while the figure is much higher in the US and higher still in many other countries. </p>
<p>Now <a href="https://www.nature.com/articles/s41562-017-0151">new research</a> that one of us was involved in, spanning 13 diverse countries, confirms that distrust of atheists is pervasive and intuitive even for non-believers. Participants in most of these countries, including the UK, the US and Australia, were more likely to associate wrongdoing with atheists than with religious believers. This moral prejudice against atheists was evident even in those who professed complete disbelief in God.</p>
<h2>Atheists on the stand</h2>
<p>Prejudice against atheists has important implications in the judicial system. In systems where witnesses can choose between a religious oath and secular affirmation, the first action that the judge and jury see a witness make may be viewed as a clear signal of the witness’s religious belief, or lack thereof. Jurors cannot be unaware of the options, because they must make an equivalent swearing-in decision themselves before hearing evidence.</p>
<p>The upshot is that when witnesses are called to the stand – where perceived credibility is paramount – they may be compelled by legal procedure to signal their belief or disbelief in God. This is an influential cue of morality or immorality and could bias trial outcomes in any number of ways. There is a real risk that defendants who take the religious oath when giving evidence may, by that very fact, enjoy more favourable verdicts and sentencing decisions than those who opt for the secular affirmation.</p>
<p>Recent research indicates how judges’ rulings can be swayed by individual experiences and other factors. One study gathered data about the children of US courts of appeals judges, and found that judges with daughters voted in a <a href="http://onlinelibrary.wiley.com/wol1/doi/10.1111/ajps.12118/full">more feminist way</a> on gender issues than judges with only sons. Another study <a href="http://blogs.discovermagazine.com/seriouslyscience/2017/02/15/sleep-deprived-judges-give-out-harsher-sentences/#.WYq9H4qQw65">found</a> that sentences rendered in US federal courts on “sleepy Monday” (the Monday immediately following the spring shift to daylight saving time in the US) were about five per cent longer than those dispensed on comparison Mondays. </p>
<p>Psychologists and legal scholars Monica Miller and Brian Bornstein have also explored the role and effects of religion in courtroom scenarios. <a href="https://pdfs.semanticscholar.org/7008/ced8de3b79b7f6c8c4a3a4b7945456eb4d61.pdf">One of their mock trial studies</a> showed that religious appeals for leniency by defence attorneys affected the decisions of jurors. Mock jurors were least punitive when a defendant was described as having converted to Christianity, compared to when the defence attorney made a generic appeal for Christian forgiveness. </p>
<p>In their book, <a href="https://global.oup.com/academic/product/god-in-the-courtroom-9780195328677?cc=gb&lang=en&">God in the Courtroom</a>, they conclude that while religious factors are less important at trial than the facts of a case, there are nevertheless numerous cases in which such factors can be decisive.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/181587/original/file-20170809-32197-f6frl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/181587/original/file-20170809-32197-f6frl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/181587/original/file-20170809-32197-f6frl8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/181587/original/file-20170809-32197-f6frl8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/181587/original/file-20170809-32197-f6frl8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/181587/original/file-20170809-32197-f6frl8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/181587/original/file-20170809-32197-f6frl8.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">Judged on belief.</span>
<span class="attribution"><span class="source">via shutterstock.com</span></span>
</figcaption>
</figure>
<h2>Out with the oath</h2>
<p>This brings us back to the possible effects of the religious oath. A proposal to abolish the oath altogether in English and Welsh courts was <a href="http://www.bbc.co.uk/news/uk-24588854">rejected by the Magistrates’ Association</a> in 2013. Opponents of the proposal argued that the religious oath strengthens the value of witnesses’ evidence. Ironically, it seems that part of the reason the oath was ultimately retained may have been because it bolsters credibility so effectively. This is another pointer to potential bias against those who opt instead for the secular affirmation.</p>
<p>In our view, the different potency of the religious oath and secular affirmation as signals of a witness’s credibility is precisely the reason the oath should be abolished. Doing so would also avoid the danger of a trial collapsing if the wrong oath happens to be taken – which happened in <a href="http://www.liverpoolecho.co.uk/news/liverpool-news/liverpool-trial-collapses-after-muslim-8730891">Liverpool in 2015</a> when a Muslim man swore on the Bible, rather than the Koran. A less radical modification would be to have witnesses sworn in where they cannot be observed by judge and jury – perhaps in a private adjoining chamber.</p>
<p>The religious oath is an antiquated feature of many legal systems that needs reform. Given entrenched distrust of nonbelievers, continued use of the oath may undermine witness testimony and make justice more difficult to obtain for people who are not prepared to profess a belief in God.</p><img src="https://counter.theconversation.com/content/82230/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ryan McKay receives funding from the Cogito Foundation and the John Templeton Foundation. </span></em></p><p class="fine-print"><em><span>Colin Davis 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>New research shows distrust of atheists is pervasive. This could affect the credibility of witnesses.Ryan McKay, Reader in Psychology, Royal Holloway University of LondonColin Davis, Chair in Cognitive Psychology , University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/779312017-06-06T00:24:55Z2017-06-06T00:24:55ZWe use big data to sentence criminals. But can the algorithms really tell us what we need to know?<figure><img src="https://images.theconversation.com/files/171182/original/file-20170526-6389-1djjw9w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Use of data-driven risk assessments in sentencing may be heard by the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/kneoh/14931652922/in/photolist-oKsCcL-7GomNn-8yTEo9-7yeMCw-aprwiN-9MVX4J-bMGwZ-bMFBR-7vzYNY-e4cAeq-5nCPgi-bMG7i-xx9XSo-bMFpa-bMGvK-bMbn94-7bo3eY-7z3WDx-oXP3gZ-6qCxCW-7GskFu-5ApJy6-ahi5G4-7KXtxw-DtvK-MLJg-MLJp-GDRLvC-HwyJuy-BNNc3-4naggU-9PURU9-9fY6o-4JUjjb-ahhVgM-6qCxTy-ahi7Ck-5oPmk7-6qCxFj-yZdd-bMJqo-bMJyb-5oPmrq-yY4z-yXK1-6qynWa-6qynUe-d7CC5-9sMTg8-p9xYAF">Karen Neoh/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>In 2013, a man named Eric L. Loomis was sentenced for eluding police and driving a car without the owner’s consent. </p>
<p>When the judge weighed Loomis’ sentence, he considered an array of evidence, including the results of an automated risk assessment tool called <a href="http://www.equivant.com/solutions/inmate-classification">COMPAS</a>. Loomis’ COMPAS score indicated he was at a “high risk” of committing new crimes. Considering this prediction, the judge sentenced him to seven years. </p>
<p>Loomis challenged his sentence, arguing it was <a href="http://www.scotusblog.com/wp-content/uploads/2017/02/16-6387-cert-petition.pdf">unfair to use the data-driven score against him</a>. The U.S. Supreme Court now must consider whether to hear <a href="http://www.scotusblog.com/case-files/cases/loomis-v-wisconsin/">his case</a> – and perhaps settle a nationwide debate over whether it’s appropriate for any court to use these tools when sentencing criminals. </p>
<p>Today, judges across the U.S. use <a href="https://epic.org/algorithmic-transparency/crim-justice/">risk assessment tools like COMPAS in sentencing decisions</a>. In at least 10 states, these tools are a formal part of the sentencing process. Elsewhere, judges informally refer to them for <a href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2961288_code789716.pdf?abstractid=2961288&mirid=1">guidance</a>. </p>
<p>I have studied the legal and scientific bases for risk assessments. The more I investigate the tools, the more my caution about them grows. </p>
<p>The scientific reality is that these risk assessment tools cannot do what advocates claim. The algorithms cannot actually make predictions about future risk for the individual defendants being sentenced. </p>
<h2>The basics of risk assessment</h2>
<p>Judging an individual defendant’s future risk has long been a fundamental part of the sentencing process. Most often, these judgments are made on the basis of some gut instinct. </p>
<p>Automated risk assessment is seen as a way to <a href="http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2011/09/20/riskneeds-assessment-101-science-reveals-new-tools-to-manage-offenders">standardize the process</a>. Proponents of these tools, such as the nonprofit National Center for State Courts, believe that they <a href="http://www.ncsc.org/Services-and-Experts/%7E/media/Files/PDF/Services%20and%20Experts/Areas%20of%20expertise/Sentencing%20Probation/RNA%20Guide%20Final.ashx">offer a uniform and logical way to determine risk</a>. Others laud the tools for using big data.</p>
<p>The basic idea is that these tools can help incapacitate defendants most likely to commit more crimes. At the same time, it may be <a href="https://www.ncjrs.gov/works/chapter9.htm">more cost-effective to release lower-risk offenders</a>. </p>
<p>All states use risk assessments at one or more stages of the criminal justice process – from arrest to post-prison supervision. There are now <a href="https://csgjusticecenter.org/wp-content/uploads/2014/07/Risk-Assessment-Instruments-Validated-and-Implemented-in-Correctional-Settings-in-the-United-States.pdf">dozens of tools</a> available. Each uses its own more or less complicated algorithm to predict whether someone will reoffend. </p>
<p>Developers of risk assessment tools usually follow a common scientific method. They analyze historical data on the recidivism rates of samples of known criminals. This helps determine which factors are statistically related to recidivism. Characteristics commonly associated with reoffending include a person’s age at first offense, whether the person has a violent past and the stability of the person’s family. </p>
<p>The most important predictors are incorporated into a mathematical model. Then, developers create a statistical algorithm that weighs stronger predictors more heavily than weaker ones. </p>
<p>Criminal history, for instance, is consistently one of the strongest predictors of future crime. Thus, <a href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2555878_code827096.pdf?abstractid=2555878&mirid=1">criminal history tends to be heavily weighted</a>. </p>
<p>The tool typically divides results into different categories, such as low, moderate or high risk. To a decision-maker, these risk bins offer an appealing way to differentiate offenders. In sentencing, this can mean a more severe punishment for those who seem to pose a higher risk of reoffending. But things are not as rosy as they may appear. </p>
<h2>Individualizing punishment</h2>
<p>In the Loomis case, the state of Wisconsin claims that its data-driven result is <a href="https://epic.org/algorithmic-transparency/crim-justice/Wisc-Brief.pdf">individualized to Loomis</a>. But it is not. </p>
<p>Algorithms such as COMPAS cannot make predictions about individual defendants, because data-driven risk tools are based on group statistics. This creates an issue that academics sometimes call the “group-to-individual” or <a href="http://repository.uchastings.edu/faculty_scholarship/1036">G2i problem</a>. </p>
<p>Scientists study groups. But the law sentences the individual. Consider the disconnect between science and the law here. </p>
<p>The algorithms in risk assessment tools commonly assign specific points to different factors. The points are totaled. The total is then often translated to a risk bin, such as low or high risk. Typically, more points means a higher risk of recidivism.</p>
<p>Say a score of 6 points out of 10 on a certain tool is considered “high risk.” In the historical groups studied, perhaps 50 percent of people with a score of 6 points did reoffend. </p>
<p>Thus, one might be inclined to think that a new offender who also scores 6 points is at a 50 percent risk of reoffending. But that would be incorrect. </p>
<p>It may be the case that half of those with a score of 6 in the historical groups studied would later reoffend. However, the tool is unable to select which of the offenders with 6 points will reoffend and which will go on to lead productive lives.</p>
<p>The studies of factors associated with reoffending are not causation studies. They can tell only which factors are correlated with new crimes. Individuals retain some measure of free will to decide to break the law again, or not. </p>
<p>These issues may explain why <a href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2555867_code827096.pdf?abstractid=2506397&type=2">risk tools often have significant false positive rates</a>. The predictions made by the most popular risk tools for violence and sex offending have been shown to get it wrong for some groups over <a href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2416918_code827096.pdf?abstractid=2416918&type=2">50 percent</a> of the time. </p>
<p>A ProPublica investigation found that COMPAS, the tool used in Loomis’ case, is burdened by <a href="https://www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm">large error rates</a>. For example, COMPAS failed to predict reoffending in one study at a 37 percent rate. The company that makes COMPAS <a href="https://www.propublica.org/article/technical-response-to-northpointe">has disputed</a> the study’s methodology.</p>
<h1>Deciding on Loomis</h1>
<p>Unfortunately, in criminal justice, misinterpretations of risk assessment tools are pervasive.</p>
<p>Based on my analysis, I believe these tools cannot, scientifically or practically, provide individualized assessments. This is true no matter how complicated the underlying algorithms. </p>
<p><a href="http://www.northpointeinc.com/downloads/compas/Practitioners-Guide-COMPAS-Core-_031915.pdf">COMPAS documents</a> state the results should not be used for sentencing decisions. Instead, it was designed to assist in supervisory decisions concerning offender needs. Other tool developers tend to indicate that their tool predicts risk at a rate <a href="https://fas.org/sgp/crs/misc/R44087.pdf">better than chance</a>. </p>
<p>There are also a host of thorny issues with risk assessment tools incorporating, either directly or indirectly, <a href="http://risk-resilience.berkeley.edu/sites/default/files/journal-articles/files/annurev-clinpsy-021815-092945.pdf">sociodemographic variables</a>, such as gender, race and social class. Law professor <a href="https://law.ucdavis.edu/faculty/chander/">Anupam Chander</a> has named it the problem of the “<a href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2798402_code366600.pdf?abstractid=2795203&mirid=1">racist algorithm</a>.”</p>
<p>Big data may have its allure. But, data-driven tools cannot make the individual predictions that sentencing decisions require. The Supreme Court might helpfully opine on these legal and scientific issues by deciding to hear the Loomis case.</p><img src="https://counter.theconversation.com/content/77931/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Melissa Hamilton does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court may soon hear a case on data-driven criminal sentencing. Research suggests that algorithms are not as good as we think they are at making these decisions.Melissa Hamilton, Visiting Criminal Law Scholar, University of Houston Law Center, University of HoustonLicensed as Creative Commons – attribution, no derivatives.