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]
Source:
Me Too
movement - Wikipedia
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]
Source:
Believe
women - Wikipedia
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:
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.
Source:
Inquisitorial
system - Wikipedia
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.
Source:
Restorative
justice - Wikipedia
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).
Source:
Restorative
justice - Irwin Law
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.
Source:
Circle
sentencing - Irwin Law
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.
