A feminist response against impunity in gender based violence: whom the presumption of innocence protects?

Abstract

The biggest problem that women experienced in gender based violence cases is systematic impunity. Statistics proves that the ratio of decision of conviction in every 1000 gender based violence incidents is only 0.7% in Turkey. As a reaction to impunity and re-victimization of woman during legal proceeding, feminists started to raise their voice and tried to find possible ways of feminist interventions in the field of procedural law of sexual offences. Accordingly, in the early 2000s, feminists in Turkey who demand an effective investigation free from sexist bias, have been united around the principle named “woman’s account is essential” by saying that woman’s statement should be taken as the basis during the whole stages of criminal trial in sexual offences. However, the principle of “women’s account is essential” is constantly objected both in doctrine as well as judiciary on the grounds that it breaches the presumption of innocence, mainly on the grounds that it reverses the burden of proof. In this study, it is presented that such objection is delusive in many aspects by mainly using the Robert Alexy’s legal theory and Catharine MacKinnon’s feminist legal theory. In this light, it is analysed what those two principles really are, including the motives and historical origins behind them. Then, the legal character of the presumption of innocence is discussed under mostly Alexy’s legal theory with its theoretical aspects as well as legal interpretations in comparative law. Lastly, it is argued that the presumption of innocence actually has to be balanced in favour of factual equality, under the Alexy’s theory of constitutional rights and Mackinnon’s feminist theory.