2018-11-16

On the Justice System, Presumption of Innocence & the Me Too Movement

Me Too Movement

The Me Too movement (or #MeToo movement), with many local and international alternatives, is a movement against sexual harassment and sexual assault.[1][2][3] #MeToo spread virally in October 2017 as a hashtag used on social media in an attempt to demonstrate the widespread prevalence of sexual assault and harassment, especially in the workplace.[4][5][6] It followed soon after the sexual misconduct allegations against Harvey Weinstein.[7][8] Tarana Burke, an American social activist and community organizer, began using the phrase "Me Too" as early as 2006, and the phrase was later popularized by American actress Alyssa Milano, on Twitter in 2017. Milano and Michael Baker encouraged victims of sexual harassment to tweet about it and "give people a sense of the magnitude of the problem".[9][10] This was met with success that included but was not limited to high-profile posts from several American celebrities, including Gwyneth Paltrow,[11] Ashley Judd,[12] Jennifer Lawrence,[13] and Uma Thurman.[14]



Believe Women

"Believe women" is an American political slogan arising out of the Me Too movement.[1] It refers to the perceived necessity of accepting women's allegations of sexual harassment or sexual assault at face value. Sady Doyle, writing for Elle, argues that the phrase means "don’t assume women as a gender are especially deceptive or vindictive, and recognize that false allegations are less common than real ones."[1]

The slogan has been criticised for encouraging a presumption of guilt. Michelle Malkin, writing for The Daily Signal, suggests that it is a form of virtue signalling.[3]



While much of this movement has focused on the entertainment industry it is for all women and particularly those exploited by men in positions of authority over them. While it goes beyond criminal activity and extends to inappropriate and socially unacceptable behaviour much of it is focused on how the justice women treats women who are victims of sexual assault and exploitation.

The Big Five Principles of Our Justice System

So we will start by looking at what I see as the big five principles of our Justice System.

 

Blackstone's Ratio


In criminal law, Blackstone's ratio (also known as the Blackstone ratio or Blackstone's formulation) is the idea that:

It is better that ten guilty persons escape than that one innocent suffer.[1]

As expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.

Other commentators have echoed the principle; Benjamin Franklin stated it as, "it is better 100 guilty Persons should escape than that one innocent Person should suffer".[4]


Presumption of Innocence

The presumption of innocence is the principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).

In many states, presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN's Universal Declaration of Human Rights, Article 11. Under the presumption of innocence, the legal burden of proof is thus on the prosecution.


The principle, now protected by section 11(d) of the Charter, that everyone accused of a crime is presumed to be innocent until the Crown has proven the accused’s guilt beyond a reasonable doubt to the satisfaction of a judge or jury.


Beyond Reasonable Doubt

Reasonable doubt is a term used in jurisdiction of common law countries. Evidence that is beyond reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems.[1]

Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable person" that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a reasonable person's belief regarding whether or not the defendant is guilty.


The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury.

The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury. This is the rigorous standard of proof that the Crown prosecutor is required to meet for each element of the offence in a criminal case.


Jury Trials

A jury trial, or trial by jury, is a lawful proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.

Jury trials are used in a significant share of serious criminal cases in almost all common law lawful systems (Singapore, for example, is an exception), and juries or lay judges have been incorporated into the legal systems of many civil law countries for criminal cases.


Adversarial Justice System

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.[1][2][3] It is in contrast to the inquisitorial system used in some civil law systems (i.e. those deriving from Roman law or the Napoleonic code) where a judge investigates the case.

The adversarial system is the two-sided structure under which criminal trial courts operate that puts the prosecution against the defense.


The Question of Consent and Credibility

The Law of Consent in Sexual Assault


Canada has a broad definition of sexual assault. It includes all unwanted sexual activity, such as unwanted sexual grabbing, kissing, and fondling as well as rape.

Sexual activity is only legal when both parties consent. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was actually thinking and feeling at the time of the sexual activity. Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent.


Further information:



Let us start by rephrasing Benjamin Franklin's version of the Blackstone ratio with a more specific reference.

"it is better 100 rapists should escape than that one innocent man should suffer"

It does not sound quite so enlightened when made more specific. But that is close to reality due to the difficulty obtaining convictions in sexual assault cases. These are cases where there are often no witnesses except the victim and the accused and while there might be forensic evidence this can only prove whether a sexual act took place but not the key factor in guilt which is whether or not there is consent. So we are left with a “he said she said” scenario.

And in the “he said she said” scenario the truth become a matter of credibility and in our society one's credibility has been tied to one's social status – the ”he's a respected member of the community, he couldn't be lying” factor. Not to mention the reluctance to even report assaults committed by people in positions of power over others because of potential repercussions and the fact one won't be believed anyway. With the Me Too Movement we have seen that particularly in the entertainment industry.

But it is even more insidious (and evil) in regards to the exploitation and sexual assault of children. We have seen numerous cases of what can only be called sex assault rings comprised of so-called respectable members of the community targeting vulnerable at risk children with perceived low credibility simply because these “respected” people knew they could get away with it. And they did for too many years just because of the credibility attached to their social status.

The social standing and supposed moral credibility of religious leaders left them immune from suspicion for years and even when their institutions (one in particular) were made aware of numerous instances of assaults they was swept under the rug because protecting the reputation of the institution was more important than justice or protection for the victims.

So how do we deal with assessing credibility in sexual assault cases where it is a case of believing the victim or the accused.

Should we abandon the concept of proof beyond a reasonable doubt and adopt the preponderance of evidence/balance of probabilities concept used in civil cases.

Preponderance of the evidence


Preponderance of the evidence, also known as balance of probabilities, is the standard required in most civil cases and in family court determinations solely involving money, such as child support under the Child Support Standards Act. It is also the burden of proof of which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as they do in criminal court).

The standard is met if the proposition is more likely to be true than not true. The standard is satisfied if there is greater than fifty percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[12] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.[13]


Balance of Probabilities
A standard of proof satisfying a judge or jury that the facts at issue probably occurred as alleged. Sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of occurrence.


I would suggest we do not want to abandon the principle of proving guilt beyond a reasonable doubt and create a potential new problem of increased unwarranted convictions.

Rather I would suggest instead that judges instructions to juries make it clear that the standard for believing accusers and witnesses is not certainty, which is impossible to have, but rather reasonable belief in the credibility of the witness. In the words of the Me Too Movement judges must give jurors the right to Believe The Women if they reasonably believe them to be credible. The ultimate safeguard being that all 12 jurors must concur for a conviction to occur.


Broader Problems with the Justice System

There are are broader problems with our Justice System than how it deals with sexual offences.

The fist thing we should note is that we did not choose our Justice System. There was no process of examination of options or analysis undertaken . We simply inherited it, like our system of constitutional monarchy and parliamentary government, from the British. That is not necessarily a bad thing.

But our adversarial Justice System does have its problems.

It has been described as a matter of story telling with whoever tells the best story being the winner. In modern day story telling, which is done most often through TV and movies, the best story telling often involves who employs the best actors and the most effective special effects. In the case of the Justice System we are talking about the most expensive lawyers, investigators, and expert witnesses. No matter what the facts are the quality of the legal defence can be the biggest factor in a court's decision.

As well, all the facts are not necessarily available to the court for various legal reasons. If the state uses illegal means to gather evidence it is not available to the court. This is done to ensure the game is played fairly. This is, of course, a difficult matter and peoples' legal and constitutional rights are hardly “technicalities”. But would it not be better to punish those involved in illegal activity separately rather than having courts make decisions without all the facts.

Money can be the biggest factor in the outcome of a case. If you are poor, depending on legal aid or public defenders, you are at a disadvantage against the resources of the state. On the other hand if you are extremely wealthy your legal resources are much greater than those of the state.

There are other options than the adversarial system.

Inquisitorial system

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used primarily in countries with civil legal systems as opposed to common law systems. Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. The distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider inquisitorial misleading, and prefer the word nonadversarial.[1] The function is often vested in the office of the public procurator, as in China, Japan, Germany, and Scotland.


The main criticism of such system is that you have one institution, the court, acting as prosecutor, defence, judge and jury. It is a system that would require a huge degree of confidence in the impartiality of the state for it to have credibility with the public.

My own sense is that we would be better off reforming our current system and I would start by looking at sentencing.

Sentencing

The first thing we need to look at are minimum sentences. Zero tolerance and minimum sentences are both concepts based on the idea that circumstances do not matter and no one can be trusted to exercise discretion.

Background on Minimum Sentences




Sentencing Based on Accountability, Restitution and Rehabilitation

When it comes to sentencing, one thing the adversarial nature of our Justice System does is create an inclination for sentencing based on punishment and revenge rather than accountability, restitution and rehabilitation.

But there is a sentencing model that does just that, Restorative Justice, using processes such as Sentencing Circles to bring offenders, victims and communities together.

Restorative Justice

Restorative justice is an approach to justice in which the response to a crime is to organize a mediation between the victim and the offender, and sometimes with representatives of a wider community as well. The goal is to negotiate for a resolution to the satisfaction of all participants. This may include a restitution to be given from the offender to the victim, or to take steps to prevent the offender from causing future harm.

A restorative justice program aims to get offenders to take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves and to discourage them from causing further harm. For victims, its goal is to give them an active role in the process.[1] Restorative justice is founded on an alternative theory to the traditional methods of justice, which often focus on retribution. However, restorative justice programs can complement traditional methods.

Academic assessment of restorative justice is positive. Most studies suggest it makes offenders less likely to reoffend. A 2007 study also found that it had the highest rate of victim satisfaction and offender accountability of any method of justice.[2] Its use has seen worldwide growth since the 1990s.[3] Restorative justice inspired and is part of the wider study of restorative practices.


Restorative justice

An approach to justice issues that focuses on reconciliation and repair of harm as opposed to conventional retributive approaches. In R. v. Gladue, [1999] 1 S.C.R. 688, Cory and Iacobucci JJ. wrote: “In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime” (at 726).


Sentencing circles


Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress.


Circle sentencing

A method of sentencing sometimes used with Aboriginal offenders (and occasionally with other offenders). Typically, the judge, lawyers, police, offender and parents, victim, and other community members and professionals sit in a circle. Everyone has an opportunity to express their feelings about the offence and offender, and their views about an appropriate sentence. If a consensus emerges about an appropriate sentence, the judge will usually impose this sentence, though the judge is not obliged to do so. A body of jurisprudence deals with the appropriateness of circle sentencing for adults, and section 41 of the YCJA recognizes the judicially convened “conference,” which includes the possibility of circle sentencing.


Postscript

Outside of the Justice System we can believe as we choose, no “beyond a reasonable doubt” is required for individuals to use their own judgment as to their own beliefs about individuals' guilt.

As well, individuals, employers, organizations, etc. are completely entitled to hold people to higher standards than whether they committed a crime or not. In fact they should. Criminal responsibility is a pretty low standard, especially for people in positions of public trust or control over others lives, whether it be in the workplace or elsewhere.

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