IGNORANCE OF THE LAW IS NO EXCUSE, BUT…
A fundamental maxim of western criminal justice systems is that a citizen cannot say “I am excused because I didn’t know the law”.
And that is an interesting concept which has a counter maxim which I’ll get to, in the context of a false analogy which has arisen on the web related to the Swedish prosecution of Julian Assange, which needs addressing:
http://bigthink.com/ideas/25314
"There seems to be a double standard in terms who counts as a “good victim.” Suppose your investment adviser isn’t paying out returns as promised. You don’t want to press charges, you just want your money. So, you go to the prosecutor’s office, the prosecutor hears you out, and she says, “You got mixed up in a Ponzi scheme. That’s fraud. Do you want to press charges?”That is a horrible analogy to time delays in making a complaint of sexual assault.
Up to this point, you just wanted help to get what’s yours, but now an expert has re-framed your experience in legal terms. Is anyone going to argue that you weren’t really defrauded because you didn’t realize you were a victim until someone explained your rights?"
Sexual assault is a crime generally regarded as a crime of violence, with elements of lack of consent; of the perpetrator knowing there is no consent: and the vast majority (excluding the intellectually handicapped and children) understand what that means.
The analogy makes the same assumption of ignorance that the politician/lawyer Claes Borgström made for the two women complainants in Sweden: “They (the women) are not jurists” Meaning in Sweden, to quote or paraphrase counsel Mr James Catlin recently, you have to be a lawyer to know if you’ve been the victim of sexual assault.
If the law is that nebulous for sexual assault, and alleged victims don’t know whether or not it has occurred, why or how would the potential accused know any better?
The second maxim of law that applies here is simply this: government has a responsibility to inform people what the law is. It cannot be “buried” or for example created on a daily/weekly/monthly basis to trap people.
Logically the more serious the offence the higher the obligation is for government to inform citizens what the law is, meaning in the less serious crime arena, no-one for example is expected to understand all about commercial or contract law. You go to a lawyer if you have problems with that. You ordinarily don’t go to see a lawyer to make up a contract on having sexual relations, (although that could be interesting, the “waking up in the morning involuntary erect appendage exclusion of criminal liability” clauses.)
The analogy above fails on several levels including equating a commercial scam (Ponzi scheme) with sexual offences which on a scale of seriousness of crimes “against the person” doesn’t wash at all.
So, if the law on sexual assault is as nebulous and unknown as is commercial law to the lay public, and is being expanded to encompass wider and wider categories or more particularly, subject to wider interpretations as Sweden appears to be doing (with apparently roughly equal numbers of convictions per year I might add) it not only can create gross miscarriages of justice for defendants, but also makes the law a laughingstock and demeans the proper purpose of sexual offences law which has serious jail time penalties and was originally intended, and must remain so–to deter perpetrators and protect victims. When the law is a laughingstock, I cannot see how the interests of victims are advantaged.
I don’t presume to fully understand Swedish law, by any means, but it seems to me that a whole new avenue of forum shopping between Swedish prosecutorial offices is opening up, ably assisted by political figures such as Mr Claes Borgström. Having politicians interfere in the judicial process of any particular case, at any time, seriously damages the independence of the judicial system.
Come to think of it, for Sweden, sexual contracts might not be such a bad idea…
And a final thought, it is depressing to note that the misogynist dinosaur brigade is using the support Wikileaks movement to further their ends.
Peter H Kemp
