The Burden Of Proof Must Be Strong 

April 1st, 2016 | M. Menuck 

It is a notable fact in progressive politics that the movement tends to cycle through flavours of the day as far as its favoured causes are concerned. One moment it will be the impending peril of climate change, at another the immoral horror of income inequality, and the week after that our dear flocks of leftist activists will be taking to the barricades over the unprecedented epidemic of gun violence. At the present, fueled by a plethora of high-profile, media obsessed trials ranging from Bill Cosby in the US to Jian Ghomeshi here in Canada, the cause of the hour seems to be sexual assault. 


Fueled by (rather faulty it should be noted) statistics that put forward the view that there is an ever rising tide of sexual assault occurring throughout North America, accompanied by a supposedly dismal rate of both prosecutions and convictions, lefties and social justice warriors and feminists of all varieties are raising a hue and crying for something to be done; most ominous of all is the subtle and often vaguely implied argument that, ultimately, the solution is a revising of the standards of prosecution to better favour convictions for sex crimes.


This is a highly problematic argument. In truth, who but an utterly disturbed individual would want to be perceived as defending the rights of rapists? Sexual assault may be second only to murder (and even that is only arguably so) as the most reviled crime in humanity. All civilized individuals can agree that to force oneself on another person in the most intimate sense is one of the most abhorrent acts of ghastly grievance that can be committed upon another person. It is precisely because this kind of crime is so intimate and personal and emotionally sickening that objective arguments and debate become fraught with peril. Seeing an accused rapist walk when the general consensus is that he is probably guilty comes across as an injustice far more severe than what would be associated with many other crimes. However, law was meant to be separated from emotion and personal prejudice for a reason; to advocate that the solution to such unfortunate failures of justice is to rethink such long held concepts as presumption of innocence and reasonable doubt is to fundamentally misunderstand the nature of our justice system. 


Our western legal tradition of juris prudence is one that was deliberately engineered to favour the interests of the innocent over the punishment of the guilty; for this reason, in cases where there are legitimate doubts and questions or verdicts that come down to instances of “he said, she said”, preference is given to the accused over the accuser. This is because it was one of the founding principles of our modern judicial system that it would be better for a few guilty villains to go free than for an equal number of innocent souls to be unjustly punished.


Does this mean that the borderline cases, involving the Cosbys and Ghomeshis of this world, will end up falling through the cracks of the judicial system? Yes it does, but that is beside the point. The rich and the famous, who are able to afford high-priced representation and are protected from legal heavy handedness by a shield of media attention, always will have an advantage in the courtroom. It was not their interests that were in mind when the concept of reasonable doubt was first established, but rather those who are on the margins of society. It is the socioeconomically disadvantaged who pay the price when due process is weakened, for it is for their protection that such laws were implemented in the first place.


Let us take the following imaginary scenario: a Freshman white girl hooks up with a black classmate during homecoming at the University of Alabama. Over Thanksgiving weekend, she goes home to a small town wherever and her parents read her diary (or peak at her emails for the sake of being modern) and discover this. Rather than face the wrath of her parents, the girl cries rape. What do you think happens in this scenario? Well, if our poor fellow is lucky enough to be at U of A on a football scholarship, maybe the university will step up to help him, but otherwise he’s likely facing a rape charge with only the dubious assistance of whoever the public defenders’ office scrapes up for him. Start tampering with the basic principles of justice, such as burden of proof and presumption of innocence, and our young man’s situation goes from bad to hopeless.


Think my scenario is a bit fantastical? Look at the real life cases where universities themselves have begun tinkering with the judicial process through internal disciplinary tribunals. Inevitably, the examples of falsely accused men who have successfully fought back and cleared their names have been almost always white and from a middle to upper-class background; they had the financial resources and support networks that allowed them to persevere even when the odds were stacked against them, which those of a less fortunate personal situation can only dream of.


The reality is that the accused is considered innocent until proven guilty beyond a reasonable doubt, because quite often he is just that. Innocent. Even putting aside the contentious (but also true) point that women sometimes falsely accuse men of sexual misconduct, there are a plethora of other reasons why this can be the case, which range from mistaken identity to prejudicial policing to the sheer dumb luck of being in the wrong place at the wrong time. Knowing this, Western judicial process throughout history has taken the view that it is better for the innocent to go free even if it also meant a few of the guilty doing so as well.

Sexual assault is an emotionally charged topic, but the law has always been based not on emotion but on neutral fact and reasoning.  To deliberately redesign our judicial processes to undermine this, even for the noblest of intentions, would mean going against the most basic of our legal principles dating back to the Magna Carta, the equality of all individuals before the law and their right to freedom under law. It is a legacy held uniquely in the Western world, and one that should not be tampered with. For this reason, it is better that a thousand Jian Ghomeshis or Bill Cosbys go free than one innocent man go to jail.