Presuming guilt for sexual crimes – A case for

“It is better that ten guilty persons escape than that one innocent suffer.”

– William Blackstone

The Blackstone’s ratio has served as the bedrock for our legal system, assuming the accused as innocent until convincingly proven guilty (also known as presumption of innocence). The burden of proof rests with the accuser – the victim – to convince the judge beyond reasonable doubt. In this article, I will forward a case for legally assuming the accused of rape and sexual crimes cases as guilty until they are convincingly proven innocent – legally known as presumption of guilt.

My proposition – strictly a sociological comparison than a legal one – will illustrate the need for this change. Further, it will illustrate how shifting the burden of proof onto the accused ensures greater scrutiny to prove the innocence of the accused instead of the crime on the victim, and better narratives that protect victims who often are subaltern women conditioned to believe their victimhood only amounts to silence. The analyses are well-informed about the cons of presuming guilty and how they continue to manifest in Japan and China.

However, I believe necessary legal measures can be taken to regulate any extra-judicial activity that can result from presuming the accused as guilty, but that discussion is beyond the scope of this article.

Consent and innocence

In most countries, consent is considered to be a dynamic and all-encompassing pre-requisite to physical and mental access. Therefore, states and their judiciary are willing to do everything to protect the sanctity of consent. In these countries, consent isn’t a feeling that can be obtained by the highest bidder, rather is an absolute institution that is protected, preserved and championed through state laws.

In Bangladesh, however, the understanding, application, protection and preservation of consent are absent because the law looks at consent as an irrevocable, one-time contract even though sexual crimes become a crime if consent is withheld at any moment.

For instance, the state recognizes marriage as automatic consent for sexual intercourse between a man and his wife, even though consent is multi-dimensional and asking consent is a continuous process. The collective inability to comprehend that consent can be revoked at any point looks like a world where no means “I have to seduce more”, or “why not? Am I not a good person to get with you?” or the worst, “why did I even marry?”

There is further complexity. Throughout time, a host of reasons have contributed to consider sexual crime cases as “monster” cases. This means, we stereotypically perceived sex crime offenders to be angry and violent, and especially men of low social class.

In reality, regardless of appearance or class, sexual crimes are a unique manifestation of dominance, where the perpetrator assumes they are in control of who can or cannot give consent for the victim, breaching any constitutional rights that protect all citizen, or a God-given ability to govern ourselves – whichever you prefer. The stereotype presents a problem if the accused appears any less frightening than, easily ushering us to consider our surrounding to be safe enough. The likely impact is that we generally become reluctant to accept terrible things happening without the victims’ fault- without the victim allowing it.

Therefore, a presumption of innocence is not establishing equal rights for the victim and the accused, since the available stereotype advantage, the accused insofar the accused only has to prove sufficient doubt to be acquitted.

Shame, guilt and patriarchy

Patriarchy has made women feel shame and guilt for being a victim of sexual crimes. When we presume the accused innocent, the victim’s shame automatically turns into guilt of being inviting, of never finding a husband, of letting their family down, etc.

While both shame and guilt are negative emotions of self-evaluation, guilt has a lot to do with responsibility for fault. Theoretically, shame can guide an individual’s reckoning towards guilt, but for all purposes should not be considered same. Neither do we socially distinguish between shame and guilt, nor is there legal recognition between the two.

Evidently, shame is the master emotion because of its bearings on an individual’s conscience. Therefore, we crucially ask: Having the victim continuously feel shame by presuming the accused innocent, are we in any way furthering individual dignity and positively reinforcing social decency?

The rise in official statistics of rape cases says no, and clearly there are more unreported cases. However, the consequences run far deeper. The shame attaches itself to the victims’ memory, reproducing again and again, making their convictions weaker and their voices softer. The most explicit impact of it is, in court, a woman’s shame is weaponized against them to disprove any and all counts of coercion.

On top of this, the presumption of innocence allows the accused the ability to refuse, reject and disprove any accusation or evidence with minimal effort since it’s the victim’s onus to convince the court beyond any reasonable doubt that they have been raped.

Our legal system has been blind of such social levers tugging at sexual crimes and their verdicts for decades, subduing already subjugated women with insurmountable pressure to not only prove the crime, but to rather prove if they are they are worthy of dignity, decency and consent.

Presuming guilt for added pressure

I posit that the burden of proof has to shift onto the accused. Presumption of guilt debases the dignity of the potential perpetrator and it becomes the defendant’s onus to prove, beyond a reasonable doubt, they are innocent.

I claim this because the defendant has to provide a comprehensive and circumstantial rebuttal to disprove any and all counts of sexual crimes against them. This is crucial because the accused cannot achieve an acquittal, or a lighter sentence, by showing it was a mistake, or there were no initial eyewitnesses to prove any or all stages of the incident, or the claim presented by the victim is in any way vague.

At a time when rape has become an epidemic in Bangladesh, I believe pushing the burden of proof on the accused to prove themselves completely innocent – no matter how difficult the burden appears to be for the accused – can be adequate response to trigger deterrence and retribution.

I claim this because the criminals’ current narrative circles around doubt, slight regret, and at its’ worst – acceptance. Currently, an accusation does not destroy the accused’s life, nor do they feel insurmountable shame. Patriarchy has successfully managed to protect the integrity of a man even when they are accused of crime as vile as rape.

For the perpetrator, even if the act is not acceptable in society, the current relaxed outlook of the law oddly helps them negotiate and justify the crime in their heads, dismantling any chance of legal retribution or rehabilitation. Only when we force perpetrators to feel pressure, guilt and shame for the crime, then can we have collective moral conscience tighten to hold perpetrators accountable even before they commit the act.

Therefore, even if the perpetrators now find themselves justifying the crime in their head, they are more likely to feel that the consequences of their crimes are inescapable simply because they have to prove innocence in all counts as opposed to proving the inadequacy of some evidence. Public moral conscience can gradually be reinforced so potential perpetrators feel shame to commit sexual crimes along with fear of punishment.

Most importantly, a presumption of guilt will neither account for the victim’s immoral character nor will the victim be required to scramble against the accused’s resistance and find eye-witness testimonies. Presumption of guilt of the accused paves the way for their DNA test and that, in comparison to current ways of deliberating sexual crimes, is significantly better.

Sexual crimes are heinous. But we cannot navigate assuming the criminals look like animals among men. This assumption is not ignorance. As societies evolve, the nature of crimes, how they are committed and how to get away doing them keeps on evolving too.

While the law serves to deter crimes, punish criminals and rehabilitate the society, it cannot serve well if it remains estranged from the society that not only creates the crime, but contextualizes it.

Justice, as a verb, is about quantitative proportions, and it should rightly be so. Justice, as a noun, however, should be about qualitative adequacy.

The case of Nusrat and our “rape culture”

At first, when I was told to write about Nusrat, I was very keen on doing it. I was very eager to voice a wave of scream towards all the men and women who are defending the rapist. I was excited to talk about the girl who, with a body 80% covered in burns, wanted justice. She used what little breath she had left to demand justice.

Justice for all the time she’s been molested. Justice for all the time that pervert Siraj-Ud-Doula got away with it, not just with her, but with plenty other people before her as well. Justice against all those puny perverts who grew to power under his careful guidance. Justice for all the blatant abuse of power for personal gain and coverage.

How many of us can say the same for ourselves? How many of us stayed strong in the face of adversary, threats and in the end, literally death?

The culture of denial

Remember how I said, just a few moments ago, that I “was” keen on writing about Nusrat? I am not anymore.

Because even now, there are marches going on demanding the release of a man who’s been accused of sexual harassment multiple times (by multiple I mean countless times) throughout many years. Because there are still people everywhere, who are defending a system that’s producing generations after generations of repressed youth. Because even after this gruesome death, there are people who think she deserved it. Because she had to be burnt alive to have her allegations be taken seriously.

What exactly is wrong with us?

We are straight-up denying the rape culture that’s been nurtured within our society for as long as I can remember, or for as long as my mother can remember, or even for as long as my grandmother can remember. We think marriage is a ceremony where the father hands over his autonomy upon his daughter to another man. We believe women owe men their body whenever, however, wherever they ask for it.

So we end up getting triggered over something as basic as a t-shirt that says “don’t stand too close”– because who’s a woman to tell a man where he can or can’t stand? Isn’t a molester’s freedom to let their body parts roam far greater than the discomfort and molestation of a woman?

The blame game

Then comes the part where we are blaming “no-orna” for rape, then we are blaming not wearing hijab for rape, afterwards, we are blaming not wearing burqa, and then lastly, we are blaming Bollywood for rape.

Seems like we are blaming everyone and everything but the rapist for the rape.

This is rape culture.

When we are victimizing the criminal and criminalizing the victim, that’s rape culture.

When we are presenting reasons behind a rapist’s intention, we are stating the rapist’s action as reasonable- and that’s rape culture.

When we try to demean a man for stepping up to his peers against their sexism by calling him gay, impotent, trans. pussy, not a man– that’s rape culture.

Well, think about owning an alpha male cat. He will litter on your bed, or on your study place (wherever you spend the most time in) to prove he’s the number one of the house, not the other way around. Not because he couldn’t find any other place to litter, not because he had sudden diarrhoea- because he needed to assert dominance.

It’s the same with rape, or as we educated people like to call it “non-consensual sex”.

A toxic society

When someone has to force themselves onto someone else (usually vulnerable individuals of the society- females, or young boys), it means they’ve been denied their dominance over their prey at first. And in a patriarchal society, where dominance equals to power and strength, being denied means being weak, being defected (ladies, that’s why all the men you said no to think there must be something wrong with you or them to be rejected, not because you have free will).

Sometimes when I’m talking about this (who am I kidding, most times) I feel so tired as if I’ve been battling the Hydra for centuries, like two heads are sprouting from where I slayed one a moment ago. That’s not even completely metaphorical- you’ll know what I’m talking about if you just give the comment sections of these news a go. Or if you talk to any stranger on the road. The number of people saying “not all men” is far greater than the number of those actual men.

But then again, we think non-consensual sex and rape is different. Maybe we deserve this toxic, dying out society after all.