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Women and the presumption of innocence

I participated in a discussion on LinkedIn about whether women should behave like men to ge ahead. What a controversial topic!

I said “There seems to be a general perception that the Women’s Movement asked for “equality”. This is not the case. It is more nuanced than that. Some “liberal” feminists wanted “equality”, but the concept turned out to be problematic. Other more “radical feminists” said “we don’t want equality – we are better than that”.

I was involved in setting up Victoria’s first feminist women’s refuge in the 1970s. So many women were abused and had nowhere to go, and no avenues or recourse available to them. My mother was abused by my father, physically, emotionally and verbally. Nowadays there are avenues, a greater awareness and a climate of opinion that violence against women is unacceptable. What hasn’t changed is behaviour. The rate of domestic violence is still high. I used to volunteer at the Darebin Community Legal Centre, and every Monday we had to process applications for Apprehended Violence Orders, going to the local Magistrate’s Court. It broke my heart to see so many cases going through every week. There are some women who abuse their children, but the vast majority of abusers are men. We don’t want to achieve equality with that.

In the area of employment and income, “equality” has a poor track record. The original Equal Pay Case gave women “equal pay for equal work”. The problem was that because of the sexual division of labour, not many women were doing “equal work”. So feminist activists changed their demand to “equal pay for work of equal value”. This was still a problem, because work done by women was not considered to be of equal value.

This campaign is still going on. See the recent article by Eva Cox, which talks about the low pay conditions for both men and women in the “feminised” industries, such as caring.


Other workplace issues where it is argued that women should not strive to be more like men include the work/family life balance, which has been to the detriment of men as well as their families. Another issue is the “style” of men and women – and the shift towards more collaborative styles of communication and management, which is seen as more typical of women.

Christine Legarde came to the leadership of the IMF after the debacle with Dominic Strauss-Kahn being accused of rape in New York, then the case being dropped by the prosecution. OK, we give the accused the benefit of the doubt, which is why he is a free man today. Likewise Herman Cain, the former US Republican candidate. One accusation of sexual harassment and you give him the benefit of the doubt – but four? It seems to me these rich and powerful high-flier men have a history of “using” women. I hope DSK’s successor doesn’t behave in the same way. On the other hand, if DSK really is innocent, he has paid a very high price – he has lost the top job, and lost the opportunity to become President of France… the socialist party just won the French elections, and DSK would have been the leading candidate, so if it hadn’t been for New York, he might be President of France today.

For an interesting insight into what “middle management” women want from leadership, see blogs.hbr.org. There is a need for so-called “feminine” values, such as compassion, but also for perceived “masculine” values such as decisiveness

One of the other participants in the LinkedIn discussion commented that “the case against Strauss-Kahn in the US collapsed due to an absolute lack of evidence – much more than giving him the benefit of the doubt. I’m sure he ‘has form’ in France – as they say – but that case in the US was a beat-up and it was shown to be so.

The man was stitched up out of his job!!
I’m not saying that Christine Legarde will not do a good job, just talking about DSK.

Herman Cain on the other hand seemed to be in a different category – he knew he was found out and left with his tail between his legs.”

I replied that in relation to DSK, I’m not convinced that the case was a beat-up. It would not be the first case to be abandoned by the prosecution because they didn’t have a strong enough case. Maybe the witness was unreliable, but that doesn’t mean she was lying.

Think of Lindy Chamberlain. She didn’t have credibility. That poor women went to jail for three years for four reasons:

1. because she had an awful hairstyle
2. because she had an awful accent
3. because she had the wrong religion, and
4. because she didn’t express emotions in the way the Australian public expected

She was suffering from grief and must have been in shock. What demeanour was she supposed to have? An even if she had killed her baby (which I doubt) why do mothers kill their babies? I would think it would only be in extreme circumstances, such as severe post-natal depression, so she still would have been be suffering an enormous loss.

It was only after the matinee jacket was found that she was released.

Lindy Chamberlain recently wrote her autobiography. I heard her interviewed on ABC radio, and she was very impressive. She has a more Australian (rather than New Zealand) accent these days; she has changed her hairstyle, but surprisingly, she retains her religion. She said something along the lines of “I don’t know why God put me through this ordeal, but he must have had a reason. I still have my faith.”

Getting back to Dominic Strauss-Kahn, I commented that “the case was withdrawn because the evidence was not strong enough – but that doesn’t mean the accused is not guilty. The problem with not proceeding to trial is that we will never know. If he was guilty, he has got away with a lot, if he was innocent, he has lost a lot.”

A bit of an aside about women in top jobs – “I think that women in political leadership have to put up with things that male leaders don’t have to put up with. The Australian Prime Minister Julia Gillard has copped fair criticism, but she has also had posters saying “ditch the witch”, which in my opinion is not fair criticism, it is beyond the pale and unacceptable. Our former Victorian Premier, Joan Kirner, was mocked in the media after a cartoonist portrayed in a polka dot dress (which she never wore). She was always saying the word “tough”, to counteract the view that a woman couldn’t take the pressure. Former Police Commissioner Christine Nixon, who is overweight, was photographed eating a piece of cake. I think she was hounded out of office. Male leaders such as Kim Beazley and Joe Hockey, who are also overweight, have not faced the same criticism.”

Unfortunately, I left myself wide open to criticism when I talked about whether DSK was guilty or innocent. One of the other people on the list said:

“Kaye – You have a law degree (I can see it in your pic). The presumption of innocence? Someone may have done something but without proof and no conviction they are simply not guilty.”

I had to talk my way out of that one! “You are right, there is a presumption of innocence, and it has been said that it is better for 100 people to be wrongly acquitted than for one to be wrongly convicted. DSK does get the benefit of the presumption of innocence. But I think there are two problems:

1. When the prosecution abandons a case – the accused is left under a cloud (despite the presumption of innocence), and the alleged victim does not get a hearing, and

2. When the case goes ahead, and sexual assault cases are very traumatic for the victim.”

I was asked where the quote about “100 people” came from:

“I learned when I was at Law School that it was Blackstone, but when I googled him, I found that there was a long history prior to that. (And he actually said ten people…)

See: http://en.wikipedia.org/wiki/Blackstone%27s_formulation

The presumption of innocence was famously referred to as the “golden thread” in the criminal law by Lord Sankey LC in Woolmington v DPP [1935] AC 462: I can still remember the voice of my friend Robert Evans, who taught Legal Process, ringing out: “there is a golden thread running through British justice – it is the presumption that the accused is innocent until proven guilty.”

Why was the case against DSK withdrawn?

Some people say that the case against DSK collapsed because of lack of evidence. This needs to be examined more closely. It would not be the first time that the prosecution has withdrawn a case because of lack of evidence, unreliable witnesses or uncertainty of success. However, this does not mean that there is no case, or that the prosecution believes the accused didn’t do it, or that the allegations are untrue. The prosecution plays percentage golf, and chooses to go ahead with the cases that are likely to succeed.
Unreliable witnesses?

People like DSK and Herman Cain are walking free today because of the presumption of innocence.

If DSK did it, he has got away with a serious crime. If he didn’t do it, he has paid a high price – lost the top job in the IMF, and lost the chance to become President of France. Without going to court, we will never have the chance to hear the evidence, the complainant is denied the opportunity for justice and the accused (DSK) will not have a chance to clear his name, which will remain forever under a cloud, presumption of innocence notwithstanding.

Sexual assault allegations are especially problematic, unlike most other offences. They are hard to prosecute, very difficult and traumatic for the victim, and therefore it is hard for the prosecution to harness the evidence. Unless there is forensic evidence it may be “his word against hers”, and there will rarely be an independent witness.

After the New York case, other allegations against DSK emerged. One was made by a friend of DSK’s wife. She had not made an allegation at the time, because of the awkwardness of accusing her friend’s husband. There can be many reasons for a woman not proceeding with a case. The presumption of innocence, problematically, protects the perpetrators.

Leave a comment


  1. The case against DSK collapsed because the witness was not credible. Her lack of credibility had nothing to do with her station in life, her religion, her hairstyle, or any of a myriad excuses one might give. When she had applied for asylum, she lied on her application. Specifically, she invented a rape that didn’t happen. Since she demonstrated a willingness to lie about rape when she thought she could benefit from it, it was necessarily a reasonable doubt that she was doing so again.

    Then there is another problem. Once someone with “deep pockets” is accused of something like this, there will be others to make claims looking for a payday. It’s similar to the way lottery winners suddenly have “long lost relatives” come out of the woodwork. This doesn’t necessarily mean he never abused his position. It’s just that the sudden existence of other accusers is an expected result even if he is innocent.

    You say that, without a trial, the accused lives under a cloud. And that’s true to an extent. But the accused lives under a heavier, darker cloud if the case goes to trial and he is acquitted — despite or to some degree because of the presumption of innocence. In criminal cases in general, an acquittal does not mean that the jury concluded the defendant was innocent. It means the prosecution failed to establish guilt.

    Personally, I think it was a set-up. The biggest reason why I think it was a set-up is that, if DSK had simply not told authorities he was getting on a plane, he would have been out of reach and it would not look suspicious. Logically, if he thought police might be looking to detain him, he wouldn’t have divulged his whereabouts.

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