The standard of proof for convictions for rape crimes

Is it feasible and effective to weaken the requirement for corroboration of evidence in crimes of this kind with the aim of reducing impunity?

Abstract

Rape crimes are part of the group of crimes that are difficult to prove and the impunity statistics related to them are high. In this context, Brazilian case law has followed the path of flexibilization of the evidentiary standard, considering enough for conviction the victim's testimonial. This study analyzes the following problem: Is it constitutionally feasible and, from the perspective of criminal policy, is it effective to lower the standard of proof, with the aim of reducing impunity? It is argued that the special attention given to the victim's word must mean understanding the context of difficulty in obtaining evidence, the effort to verify external coherence from the factual elements that can effectively be obtained in each case and an assessment devoid of gender stereotypes. However, a conviction presupposes solid confirmation of the accusatory hypothesis by independent elements. The adoption of a presumption of veracity is not compatible with the presumption of innocence and implies a politically problematic tolerance for mistaken convictions, apart from the fact that it does not have a positive impact on crime incidence statistics. There is room to improve the quality of judicial provision, but the focus of public policies should be mainly on preventing and combating the social and structural factors that are at the root of the problem.