Presumption of innocence?

Photo by Patrick Moore, from
Photo by Patrick Moore, from

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.



9 responses to “Presumption of innocence?”

  1. Alicia Butcher Ehrhardt Avatar

    One thought: there has to be some protection IN CASE the person presumed innocent later gets proven guilty. That’s where employment contracts come in, and people who are in contact with children are not allowed to do their jobs when accused of being pedophiles, etc. My guess is that sexual crime is vastly underreported.

    But the protection is because, with all that’s at stake, TRIALS – even when there is a LOT of evidence – take forever, and if you add appeals, that’s forever squared.

    And, by its very nature, sexual assault tends to have no witnesses many times, and victims may lag in reporting it (often because they’re intimidated or don’t think they’ll be believed), and evidence is never collected that could be used to determine guilt.

    So the presumed innocent person is what? Let roam the world with no problems while the alleged victim is scared out of her/his wits?

    Who do we put in jail ‘meanwhile’? Jail is horrible.

    It takes time to analyze and gather evidence, so insisting on speedy trials is not the best solution, either.

    You have very good points. I’m so sorry you also have negative personal experiences, and in fact, it astonishes me how even-handed you’re trying to be with possible criminals.

    I would not want to be in any of the positions a person could get into and be presumed guilty when innocent (the guilty I worry a bit less about, wonder why).

    And when it comes down to one person’s word against another, and the guilty one gets away, I would not want to be the innocent victim – who is often disbelieved because nothing was proved.

    Dunno. Just don’t know. Especially when someone powerful gets accused, finally, and then a whole bunch more people jump on the bandwagon.

    And there are so many sexual predators who keep it just one side of criminal, but are predators nonetheless.

    There. Bunches of random thoughts.

    1. cenobyte Avatar

      There’s a reason people are suspended (not fired) while court proceedings are underway. In many cases, suspension without pay means they have to find other work.

      Let’s extend this though – what if you accuse your boss of rape, and your boss is suspended pending the trial, and then your boss is found not guilty? Then what? It’s incumbent upon you to find a new job because your boss isn’t going to want to keep you on. Maybe you or your boss could be transferred? But it’s not just sex crimes.

      What if you’re accused of attempted murder? What if people don’t want to work with you because you could be a violent axe murderer? Is it okay to fire you? What about if you’re accused of fraud?

      All very good questions, but I don’t think suspicion of committing an offence (or being charged with an offence but awaiting trial) means your employers have the right to fire you. They can always buy out your contract, I suppose, or suspend you without pay (which will probably lead to your having to leave anyway).

      1. Alicia Butcher Ehrhardt Avatar

        The pay part is the hard part. Should pay be continued (after all, the accused will have legal expenses, and even guilty people are entitled to counsel) – and does it have to be returned to the company if the person is found guilty? And if so, what about appeals?

        Read your employment contract VERY carefully.

        1. cenobyte Avatar

          Up here, criminal defence attorneys are provided free of charge if you can’t afford one (I think the same is true Stateside), but if you want the top-dollar defence, yeah, you’re going to need deeeep pockets.

          I think this is probably why corporations suspend people without pay…

          1. Alicia Butcher Ehrhardt Avatar

            Same here. They’re crappy, young, inexperienced, and have way too many cases assigned to them.

            But paying for one can cost your house.

            Your life or your home. Great choices.

  2. cabrogal Avatar

    I think there’s multiple problems here that are in the process of combining into a perfect storm.

    First are the increasing calls to reduce or even reverse the onus of proof for sex offences. I think they’re driven mostly by frustration at the very low conviction rates but also by confusing the imperative to believe victims for the purposes of counseling and support with the idea that the legal system should also take their untested word. Conversely there are plenty of people (especially in the men’s rights movement) who claim that low conviction rates are due to an epidemic of false rape allegations rather than the inability of our legal system to address the problem.

    There’s also the popular myths that sex offenders are extraordinarily perverse outsiders who target random strangers and chronically reoffend. So people believe that sex offences can be prevented or substantially reduced simply by locking up the right people.

    Finally there’s the idea that the judicial and prison systems can somehow be used to deal with rape culture. As if bastardising offenders in the sick environments of our prisons for years while also exposing relatively minor drug and property offenders to them for months at a time is going to address the sort of attitudes that lead to rape.

    I’m not going to pretend I know how to address rape culture. It’s a complex social problem that’s way beyond my pay grade. But I do know that research suggests the most effective way to reduce the rate of offending is through target hardening. Increased patrolling and surveillance of places where sex offences tend to occur (unfortunately the #1 location is the home, so there’s practical problems there). Education of both potential victims and potential offenders as to how to avoid situations in which sex offences may occur (sadly there are some people who equate educating potential victims with victim blaming). Teaching kids in particular to protect their own bodily integrity and to not accept adult authority without question. Creating safe spaces in which victims or those who fear they will become one can receive support outside of the adversarial (and often abusive) legal system.

    Personally I also think there is a place for non-legal means of addressing sex offending. I think Indigenous traditions such as circle sentencing offer a way forward. That’s because the consequences of reporting sexual assault to police is so often to increase the damage to the victim while doing nothing to address the offence itself.

    Probably the most important first step is ensuring that victims actually have somewhere to turn. That might address the appallingly low reporting rates for sex offences and at least give us a better view of what’s going on here as well as serving the primary purpose of harm minimisation.

  3. cabrogal Avatar

    Regarding your earlier, now deleted, question about age of first sexual assault. That’s a toughie.

    Not because I’m too traumatised to discuss it or anything but because after the work I did with victims and perpetrators of sex offences it seems somehow wrong to refer to my own experiences as sexual assaults.

    Was the goosing and genital hitting and twisting I was subjected to in school playgrounds from about five years old sexual assault? It seemed continuous with the almost constant background violence I received from both students and teachers (and sometimes dished out myself) but somehow it was more ‘icky’.

    What about my ‘initiation’ into Boy Scouts aged 11 when two older boys held me down while a third stripped off my pants and rubbed toothpaste into my scrotum? It sure felt like sexual assault.

    Or when I was in my early teens and a thirty-something friend of my mother made a drunken pass at a party in which she made explicit suggestions and pressed my hand against her breast? I didn’t think of it as sexual assault at the time but I suspect most adults would have seen it that way.

    That’s part of the problem isn’t it? How to define sexual assault? Should it be up to the legislature? Social or peer consensus? Entirely defined by the victim? What about retrospectivity? Is it valid to call something a sexual assault now if you didn’t consider it one while it happened?

    But when I worked in the field I was forced to rethink a lot of things and that brought me face to face with an even tougher question. One that still haunts me and which I still can’t answer.

    When did I commit my first sexual assault?

    Maybe that’s the key question rape culture raises.

    1. cenobyte Avatar

      Not deleted; just put into drafts because I wasn’t sure it was the right question.

      And this reply has just solidified that it wasn’t. Not on its own. It needed context.

      Thank you.

      It makes me so goddamned angry that boys and men have even fewer resources than girls and women, and that males are still taught that they should be FLATTERED if someone touches them or harasses them. I was in a situation where I watched a room full of 30-something women pawing at inebriated young men (19 & 20 yr olds) and making lewd remarks and I thought, if the situation were reversed, and there were a bunch of drunk college girls at a party full of men nearly twice their age, and the men were acting like that, there would be no question that the girls were being assaulted. Maybe not because they didn’t like or didn’t want the attention, (the young men in question were not asking for nor inviting the attention) but because there is a certain power imbalance there.

      And after having read your article about empowered consent, that is exactly what I’m trying to say. Thank you for that also.

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