GUEST BLOG: Samira Taghavi – Surviving a Sexual Prosecution in 21st Century Salem

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Some experiences are so traumatic that they transform lives, and those who live through them deserve to be called ‘survivors’. Men who endure the experience of a false sexual allegation are truly worthy of the term.

But if only the Establishment, mainstream media and sexual abuse activists could be consistent in their use of such language. Recently a TV interview screened with musical star Craig McLachlan, whom some women had accused of sexual abuse. The show gave his account of the story, predictably prompting indignant fury from sexual abuse campaigners. Their automatic ‘go-to’ labels of “victim” or “survivor” instead of ‘complainant’ reveal an assumption that all accused men are guilty. AStuff article appeared even before the show went to air, featuring Louise Nicholas’s annoyance with the upcoming broadcast and quoting ‘HELP’ spokeswoman Kathryn McPhillips as saying that false sexual accusations are “extremely rare”. She mentioned their incidence as being “less than one percent”, a figure that

McPhillips attributed to an “informal study” by an unnamed police employee – hardly a resounding statistical justification. Nicholas was critical of a show airing that “retraumatised” complainants by publicising the acquittal of a defendant. Ridiculously, reporting an actual court decision and the defendant’s take on his situation is beyond the limit according to Nicholas. Media outlets, it seems, should keep to only reporting ‘alternative facts’ consistent with doctrinaire narrative.

For an actually-scientific ‘non-informal’ study, I refer readers to Professor Felicity Goodyear-Smith’s opinion piece here of Monday where she explains that a more helpful DNA-based figure for wrongful convictions in crimes with a sexual component, is enormously greater than the McPhillips figure – being 8 to 15 percent, in fact. Other analysists estimate that the true figure is still even higher.

Instead of respect for science, common sense and the presumption of innocence, we are in an unhappy age of Salem witch-trial-style hysteria that has now given us the Sexual Violence Bill. There are numerous very ugly consequences that will flow from the bill and while conviction and imprisonment on a false allegation is of course the worst outcome – and an outcome this bill will multiply – another collection of indignities has not received focus, being life as an accused person prior to and during the trial process. Indeed, even if acquitted, men can still expect to have survived their prosecutions at an often-crippling price.

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The first problem in our present legal climate is that no man is ever safe – and he won’t be for the balance of his time on this earth. Countless defendants are older men who have led lives free of criminal convictions. It is not that older men are disproportionately inclined to offend sexually, but that in a country without a Statute of Limitations on these charges, senior citizens can suddenly be surprised by charges alleging offending decades earlier.

Once charged, though still (literally) legally innocent, the purgatory of life in limbo while facing a pending case can include being remanded in custody (i.e. jailed) during some or all of that time, which can put a man at grave disadvantage in preparing his defence, thereby of course increasing the probability of his conviction and return to jail. Better is to be on bail, but that may be no sweetheart deal either, since bail may come with repressive conditions – usually insisted upon by the prosecution – which may be so intrusive and unsettling that they can even sometimes destroy livelihoods. In one of my (domestic assault) cases, a bail condition ring-fenced my client from entering an entire city – the city where he lived and he where operated his business.

A common bail condition is that the accused must avoid contact with the complainant. When that complainant is, for example, a disgruntled stepdaughter who lives under the defendant’s roof, this often means that he must find other accommodation. He may own the house and pay a mortgage on it, but that just means he has to pay rent on new digs while he also pays that mortgage – and accommodates the woman seeking to destroy his life and liberty. Financially crippled and tossed out of their homes, such men can quickly end up with literally nowhere to go while they await trial.

Their next nightmarish realisation will probably be financial. ‘Middle-class’ men usually have enough assets and income not to qualify for legal aid. So prepare for an enormous financial setback. Hopefully the defendant might quickly discover the benefit of having a specialised lawyer with long experience in defending such cases but the battle campaign (often with co-counsel, experts and investigators) can easily run into six figures. From where will this money come? Mortgaging or re- mortgaging one’s house might be an option – supposing the bank is willing to lend on criminal litigation where the mortgagor might end up in a prison cell and therefore unable to repay.

We often hear about the lack of funding for women’s refuges. If the power of the state is used to dispossess men so systematically, surely it is time for that same state to offer them support and even accommodation by providing ‘men’s refuges’, which it predictably doesn’t. The unfashionability of that idea is laughably obvious but in cynical contrast even prison offers a roof. The graveyard is one refuge and suicide prior to trial has not been unknown.

For lawyers too, defending sexual cases has become traumatic. Those lawyers who work through legal aid are disillusioned with the dismal pay and the heavy hand of a state under political pressure to produce more sexual convictions at any cost to their innocent clients – and to their own peace of mind and sense of justice. Many are refusing to take on such work. What then for those defendants, thrust into a terrifying world that once seemed inconceivable in an enlightened country like ours?

The Salem false-allegation hysteria initiated its misery in 1692. Now 329 years later, ‘thought leaders’ such as McPhillips still seem to have little understanding of the grave danger of false allegations, the prevalence of which she and her cohorts lightly deny. Calling the now-acquitted Craig McLachlan a ‘survivor’, would no doubt severely displease those activists who apparently claim exclusive rights on use of the word. Yet anyone who endures the horror of a false allegation most deservedly earns that title.

 

Samira Taghavi LLM is a criminal defence lawyer and the practice manager for ActiveLegal, a criminal defence firm that operates nationally. She is on the Auckland District Law Society Criminal Law Committee.

12 COMMENTS

  1. A very insightful and well written article Samira. I have read many of your articles and you hit the nail on the head every time. The world needs more lawyers like you that will go above and beyond to create change and fight for what is right. Too often we hear from those in your profession that ‘it’s just the way the system is’. You are a credit to your profession and I hope that you are successful in creating change in our ‘guilty before proven innocent’ justice system.
    New Zealand needs to open its eyes and realise that if the proposed sexual violence bill is passed….More and more innocent men will be sent to prison. As long as the Greens hit their imprisonment stats for that year…..that’s their most important thing… not the fact that many of those men have NOT committed the crime and have had their defence disarmed by the bill.

  2. Thank you Samira for speaking up for those who are often looked over. Often the men are overlooked as victims because woman are seen to be the vulnerable party.
    Being falsely accused of anything is scary and sad but then everything that comes with fighting for your innocence!
    Was definitely an eye opener reading that.
    More people need to speak up. Everyone, male and female deserve a fair go. And not to be labelled before hand.

    Kudos to you Samira!

  3. Samira you are an advocate for principle. Keep up the good work you do. Strong voices and strong ideals are needed to change these injustices which so many are suffering from.

  4. Hi Samira – your article is brilliant. Everything you say is right on point. A former flat-mate of mine, her former boyfriend was falsely accused on a sexual assault on a female who recanted when it could be proved she was lying. The police were asked if the female was going to be charged with filing a false allegation. They said no because she was dealing with other issues. If it was good enough for her to make a charge against the guy in the first place we all said she should be charged. Then someone told us that the Police are not allowed to question the truthfulness of a complaint – that they have to accept a complaint as truthful and when it is found not to be truthful they still don’t take any action.

    On the point about Kathryn McPhillips saying that false sexual accusations are “extremely rare”. She mentioned their incidence as being “less than one percent” – I would like to know how she reaches that conclusion because she can only base it on the court statistics or statistics provided by the cops where someone is either charged with filing a false complaint or if they are not, have admitted it. There must be many, many cases where the complaint is false but it cannot be entered into the statistics. My father’s friend who is a retired detective confirmed this for me.

    I agree with and support the comments from the others above – Paul, Bravo, Lilly and Nancy

  5. Bravo Samira. You are a credit to your profession and to the human race.
    Though abhorring all violence in particular rape, there is no denying that too often today with the emphasis on the ‘me too’ movement, a cry of ‘wolf’ for monetary gain or a hidden agenda by unscrupulous women leads to the wrongful conviction of innocent men.

  6. Great article by Sami Taghavi. I 100% concur that the documentary about Craig McLaughlan signalled a concern around someone who has been acquitted of a crime and yet his accusers are called the victims. Justice? Not served in this instance.

  7. A necessary article that draws attention to an all-too-common phenomenon: hundreds of blameless men are in prison. The public doesn’t connect the dots and realise the tragic frequency of false sexual allegations for two main reasons. First, the falsely accused are hardly likely to tell their stories; they’re either in prison or so relieved to be acquitted that it’s all they can do to retrieve what’s left of their lives. Secondly, the government and the media blatantly lie about the statistics of false allegations. People need to wake up about the consequences of this bill, which will increase miscarriages of justice.

  8. This is….weird, yes one injustice is one too many and I too know of men wrongly accused, terrible. However the weight of evidence can be seen in the raw stats of woman killed and injured by men, strangers and in domestic abuse situations. So this cause is a weird one to hang the hat on. And so many articles on same topic. Poor middle class white guy. WTF.

    • Context, lone comet. Have you not heard about Jan Logie’s sexual violence bill that will remove the defendant’s presumption of innocence and also undermine the defendant’s right to silence? That’s why there are “so many” articles on the same topic. You really think the right to a fair trial is “a weird one to hang the hat on”?

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