This is something I want to approach very delicately. It’s about allegations of sexual harassment, sexual assault, and rape. I don’t want to get into a huge discussion about rape culture and the way in which sexual assault is downplayed. This is more about actual legal issues.
I believe the Canadian and American legal systems operate on a premise of presumption of innocence. That is to say that the onus is on the prosecution in any criminal case to *prove* that the person accused of a crime is actually guilty. The presumption of innocence originated in France, and it’s the idea that most people are not criminals. It is a right all people in Canada and the US (and most countries that base their laws on English and French common law. Interestingly, Islamic law has something similar, which holds that suspect evidence must be thrown out) have and it forms part of the Universal Declaration of Human Rights. I say all of this because the right to presumption of innocence is not new. It’s been around for a very long time.
What I’ve seen happening lately with many crimes, but most especially with sexually-based offences, is that the moment someone is *accused* of criminal acts, not found guilty of them, but accused of them, it seems that their guilt is simply assumed. In some cases, there may be clauses in employment contracts that outline what happens if an employee is even accused of criminal activity. I don’t know. For example, if you work in a highly public arena, maybe even the act of being accused of a crime forfeits your contract. I don’t know. I would find it very strange for an employer to use a contract that essentially causes you to lose your job if you’re accused of criminal wrongdoing. But, maybe that’s a thing.
Some employers may suspend an employee accused of criminal acts – I see this with police forces, sports teams, teachers, etc.. Sometimes the accused is suspended with pay, other times they are suspended without pay until the outcome of their trial. But that’s not the same as losing your job because someone accused you of a crime.
I am not saying anything about whether people who report sexual assault and rape are lying. I will not get in to that argument. This is not about whether we should believe people who charge someone with sexual assault. I am not going to even entertain the argument that some people claim they have been sexually assaulted or raped because they’re trying to get something or prove something or get out of something or punish someone.
What I am talking about here is simply this question: does presumption of innocence not apply in cases in which sexually-based criminal charges are laid?
There have been some high-profile cases in which people have been accused of sexual assault and/or rape, and in some of those cases, the people accused of those crimes have been vilified, they’ve lost their jobs, and/or they’ve been assaulted or harassed or stalked or bullied and I’m not sure that’s right. In order for our justice system to work, it must apply equally to everyone. If we are going to fix what’s wrong with this system, trying to work around it isn’t going to help.
Look, it’s a fact that people who report sexual assault and rape must have their claims taken seriously. We cannot, and must not dismiss a claim simply because “I know that person; they would never…” or “it’s not even possible for that to happen” or any other excuse. Yet. Yet we similarly cannot assume that because someone has been accused of sexual assault or rape they are automatically guilty.
There has to be a middle ground. There has to be a place where we can take the claims seriously AND provide the accused with all the protections and rights to which they are entitled under law. Note I’m not saying much about believing someone or not believing someone. There’s a reason for this, and it’s uncomfortable to talk about. The law isn’t about belief. It’s about proof. So from a LEGAL standpoint, it really doesn’t matter if you believe someone is incapable of rape or if you believe someone’s claim of sexual assault. What matters is what can be proved in court.
This is why it’s so vitally important that we take allegations of rape and sexual assault seriously, every time. Every. Single. Time. This is step one. Step two is two ensure that the accused are provided with all of their rights, including the presumption of innocence. Step three is to ensure the facts from both sides are presented in court. The benefit of our legal system is that most of the time, innocent people do not end up in prison (especially if they’re not poor and not Indigenous, Hispanic, or of African descent). The downside of our legal system is that sometimes, guilty people go free and sometimes innocent people are found guilty.
So this is where my question about the presumption of innocence in sexually-based criminal cases sits: do we allow for the presumption of innocence in rape and sexual assault cases, and do we do enough?
What would you do if your kid was raped and had to face their attacker every day at work?
I don’t know. I cannot put myself in that position. I can put myself in the position of having to continue to live in the same building as someone who attempted to rape me. I know what it’s like to have to sit at the same table as someone who’s sexually assaulted you. No, I never did report those crimes. Why? Because nobody would have believed me? No, more like because it was so common that I knew I was expected to just live with it, get over it, and not let myself be put in that situation again. Yes, that was the advice I received. It was all shitty stuff to go through and I absolutely wouldn’t want my kids or your kids or anyone’s kids to go through that again. This isn’t about pretending rape doesn’t happen. This isn’t about pretending we don’t live in a culture that downplays sexual assault. This isn’t about, in other words, denying the existence of rape culture.
This is about ensuring that people accused of crime, even sexually-based crime, are not having their rights denied them. Specifically, their right to the presumption of innocence.
Also, the presumption of innocence is something that is very specific to the court system. It doesn’t mean *you* have to believe someone is innocent. It means the courts and their agents MUST presume they are innocent until otherwise proven. *I* can choose to presume their innocence until the outcome of the trial; I’m not saying you have to.