Presumption of Innocence
Oct. 30th, 2014 12:01 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
jsburbidgeIn the last few days I've seen a number of completely misconceived comments referencing "innocent until proven guilty" in connection with Jian Gomeshi; I saw it similarly referenced in the discussions about WisCon and Frankel; I'm sure it came up regarding René Walling.
So let's clarify what's involved.
First of all, there is no real legal maxim about being innocent until proven guilty, at least not if these are taken to be the only two binary states. If you're charged with a serious crime, the state can put you in jail for months to years (depending on how busy the courts are) while awaiting trial and then even if you're not found guilty seized property may not be returned, while you will never receive full recompense for what happened to you during that time. And that's in Anglo-Saxon countries where habeas corpus applies; in many continental countries you can be thrown in jail for a period without even having a charge laid. This is not being treated as "innocent".
What the law actually has is two concepts: presumptions and weight of proof required. When transferred outside the specific context of the court system these mean something considerably different than most people think.
Let's take presumptions, first.
Under normal circumstances, an accused benefits from a presumption of innocence, and a defendant from a presumption of non-liability in the trial itself, and in any related hearings. What that means is that the onus is on the accuser to make a case, rather than the case being presumed and the onus being on the defendant to rebut it. It does not say anything about the nature of the case. (In some specific circumstances, there may be statutory reversals of proof on specific matters. For example, in a civil suit for personal injury in Ontario between a motor vehicle and a pedestrian, where it has been established that the pedestrian was in fact hurt by the motor vehicle, there is a reverse onus on the driver to prove lack of negligence as a causative factor. This means that the driver will have to lead evidence to rebut negligence rather than relying on the plaintiff having to prove it.)
Transferred to private life, this means ruling out prejudice (i.e. literally pre-judgement) in assessing a claim regarding bad behaviour made in the media or otherwise. We shouldn't just assume, for example, that because someone is poor he or she is blameless[1] or that all actors are immoral. It doesn't mean that we can't make judgements very early based on a small amount of evidence. That's covered by questions of weight of proof.
The legal system has at least three types of weight of proof which come into play in different circumstances. In ascending order:
The criminal standard is so high precisely because the consequences of criminal conviction are so serious; and because the courts are suspicious of the state (and the police) on general principles. Even with that as a strong standard, there are miscarriages of justice based on circumstantial evidence.
However, we're not sitting in judgement on the people in these reports. Regardless of what I think of Gomeshi, it's not going to matter to him, unless I happen to be one of a small set of people with whom he actually deals. The consequences to him are small. Therefore, the weight of the evidence required to treat him as "guilty" needs to be much less. This still keeps intact the principle of not prejudging, because it's a response to "evidence", not a prejudgement.
Similarly, a harassment policy doesn't need to have a full-scale beyond-all-reasonable-doubt weight of evidence when the consequences are that someone can't go to an annual social gathering.
I sometimes see the position taken that complainants in sexual assault / harassment cases ought always to be believed. That is prejudgement -- anything with "always" in it points in that direction. It cannot be emphasized enough, though, that a policy of weighting a complainant's statement very heavily indeed and putting a reverse burden on the accused harasser makes sense given the actual ratio of false to true accusations. If an accused brings forward evidence that, say, the complainant had a long-standing and well-known grudge against the accused and that he (usually "he") and the complainant were never in private together and that no witnesses attest to any wrongdoing, though, that should be taken into account.
Likewise, although the courts exclude "similar fact evidence" except on very narrow grounds, it makes pre-eminent sense for an organization looking at a harassment claim, or a news consumer assessing reports, to take full considerations of an accused's reputation as regards behaviour. (Gomeshi, Walling, Frankel: all bad).
Oh, and "hearsay" is a really useless concept outside the trial / discovery context. Most of the things we reasonably rely on day-to-day are hearsay by legal standards. Unless you have a course in Evidence under your belt, you should avoid talking about hearsay in this sort of context.
There are other factors which come into play, of course. If you make public claims about somebody which injures their reputation, and they are in fact false, then you lay yourself open to claims in defamation, regardless of how well-justified you think you may be. This should not be confused with "innocent until proven guilty", but it's why media are so careful to spread words like "alleged" around, and why most media outlets have policies requiring them to get as much confirmation as possible regarding negative stories before publishing.
One of the ironies of the WisCon debacle was that if the complaint had been acted on promptly and effectively, and that was the universal norm there wouldn't have been any publicity at all. The original post about how to report harassment (which didn't name Frankel) wouldn't have been necessary if the whole thing had been a socially accepted routine; and even if it had appeared as it was it would have ended up causing far less publicity than the botched process did.
If Gomeshi had been willing to go along with a quiet severance of the "Mr. Gomeshi has decided to pursue other interests" type, competently handled -- leave following his father's death, followed in a few weeks by an orchestrated resignation -- there would have been rumours, but nothing like the kind of publicity that he himself generated by his Facebook entry. Instead he's now being buried by an avalanche of reports which, honestly, are exactly the sort he would have to be really stupid to sue over.
[1]"It's the same the whole world over, it's the poor what gets the blame."
So let's clarify what's involved.
First of all, there is no real legal maxim about being innocent until proven guilty, at least not if these are taken to be the only two binary states. If you're charged with a serious crime, the state can put you in jail for months to years (depending on how busy the courts are) while awaiting trial and then even if you're not found guilty seized property may not be returned, while you will never receive full recompense for what happened to you during that time. And that's in Anglo-Saxon countries where habeas corpus applies; in many continental countries you can be thrown in jail for a period without even having a charge laid. This is not being treated as "innocent".
What the law actually has is two concepts: presumptions and weight of proof required. When transferred outside the specific context of the court system these mean something considerably different than most people think.
Let's take presumptions, first.
Under normal circumstances, an accused benefits from a presumption of innocence, and a defendant from a presumption of non-liability in the trial itself, and in any related hearings. What that means is that the onus is on the accuser to make a case, rather than the case being presumed and the onus being on the defendant to rebut it. It does not say anything about the nature of the case. (In some specific circumstances, there may be statutory reversals of proof on specific matters. For example, in a civil suit for personal injury in Ontario between a motor vehicle and a pedestrian, where it has been established that the pedestrian was in fact hurt by the motor vehicle, there is a reverse onus on the driver to prove lack of negligence as a causative factor. This means that the driver will have to lead evidence to rebut negligence rather than relying on the plaintiff having to prove it.)
Transferred to private life, this means ruling out prejudice (i.e. literally pre-judgement) in assessing a claim regarding bad behaviour made in the media or otherwise. We shouldn't just assume, for example, that because someone is poor he or she is blameless[1] or that all actors are immoral. It doesn't mean that we can't make judgements very early based on a small amount of evidence. That's covered by questions of weight of proof.
The legal system has at least three types of weight of proof which come into play in different circumstances. In ascending order:
- A prima facie case. This applies in preliminary hearings (usually before a magistrate. It's the sort of case the police have to meet not to get an arrest thrown out, for example. It's also the sort of case that might be needed for taking preventative measures -- getting warrants of various sorts.
- Proof on the balance of probabilities. This applies to civil cases in tort, breach of contract, trespass, etc. In some statutory cases it may apply to regulatory infractions as well.
- Proof beyond reasonable doubt. This applies in criminal cases as a general rule. This is what is usually invoked implicitly in rhetorical appeals to "innocent until proven guilty".
The criminal standard is so high precisely because the consequences of criminal conviction are so serious; and because the courts are suspicious of the state (and the police) on general principles. Even with that as a strong standard, there are miscarriages of justice based on circumstantial evidence.
However, we're not sitting in judgement on the people in these reports. Regardless of what I think of Gomeshi, it's not going to matter to him, unless I happen to be one of a small set of people with whom he actually deals. The consequences to him are small. Therefore, the weight of the evidence required to treat him as "guilty" needs to be much less. This still keeps intact the principle of not prejudging, because it's a response to "evidence", not a prejudgement.
Similarly, a harassment policy doesn't need to have a full-scale beyond-all-reasonable-doubt weight of evidence when the consequences are that someone can't go to an annual social gathering.
I sometimes see the position taken that complainants in sexual assault / harassment cases ought always to be believed. That is prejudgement -- anything with "always" in it points in that direction. It cannot be emphasized enough, though, that a policy of weighting a complainant's statement very heavily indeed and putting a reverse burden on the accused harasser makes sense given the actual ratio of false to true accusations. If an accused brings forward evidence that, say, the complainant had a long-standing and well-known grudge against the accused and that he (usually "he") and the complainant were never in private together and that no witnesses attest to any wrongdoing, though, that should be taken into account.
Likewise, although the courts exclude "similar fact evidence" except on very narrow grounds, it makes pre-eminent sense for an organization looking at a harassment claim, or a news consumer assessing reports, to take full considerations of an accused's reputation as regards behaviour. (Gomeshi, Walling, Frankel: all bad).
Oh, and "hearsay" is a really useless concept outside the trial / discovery context. Most of the things we reasonably rely on day-to-day are hearsay by legal standards. Unless you have a course in Evidence under your belt, you should avoid talking about hearsay in this sort of context.
There are other factors which come into play, of course. If you make public claims about somebody which injures their reputation, and they are in fact false, then you lay yourself open to claims in defamation, regardless of how well-justified you think you may be. This should not be confused with "innocent until proven guilty", but it's why media are so careful to spread words like "alleged" around, and why most media outlets have policies requiring them to get as much confirmation as possible regarding negative stories before publishing.
One of the ironies of the WisCon debacle was that if the complaint had been acted on promptly and effectively, and that was the universal norm there wouldn't have been any publicity at all. The original post about how to report harassment (which didn't name Frankel) wouldn't have been necessary if the whole thing had been a socially accepted routine; and even if it had appeared as it was it would have ended up causing far less publicity than the botched process did.
If Gomeshi had been willing to go along with a quiet severance of the "Mr. Gomeshi has decided to pursue other interests" type, competently handled -- leave following his father's death, followed in a few weeks by an orchestrated resignation -- there would have been rumours, but nothing like the kind of publicity that he himself generated by his Facebook entry. Instead he's now being buried by an avalanche of reports which, honestly, are exactly the sort he would have to be really stupid to sue over.
[1]"It's the same the whole world over, it's the poor what gets the blame."
