In principle, the #IBelieveSurvivors crowd is absolutely correct. And when it comes to accessing victims' services, counselling, support, and simply being taken as credible amongst friends, family, by the police and by prosecutors -- when it comes to all that, there is no reason to discount the #IBelieveSurvivors rhetoric. Since the verdict in Jian Ghomeshi's highly publicized criminal trial for sexual assault, many people have criticized the justice system for failing to follow the basic premise that survivors of sexual assault will not fabricate their accounts.
But that same rhetoric has no place in a criminal trial. It is contrary to the fundamental principles of justice in this country, and contrary to any fair and just system of criminal law. As difficult as it may be to accept, we have to stop trying to think about a criminal courtroom as a space that either belongs to or should belong to victims of crime. Rather, the criminal courtroom is a space that belongs to society as a whole.
I'd like to take this blog post to write about why it is dangerous to allow that type of thinking in a criminal courtroom.
The Presumption of Innocence
The presumption of innocence is often referred to as the golden thread of our justice system. It was first articulated as such in a 1935 case from the House of Lords, in the English Commonwealth. The presumption of innocence also flows into Canadian law, and has always formed a part of our justice system. It is codified in Section 11(d) of the Charter of Rights and Freedoms, which makes it part of Canada's constitution. It is a foundational principle on which our system of justice turns. Many people have also criticized Ghomeshi for not disputing the allegations, and not taking the stand to deny that the allegations occurred. This, alone, cannot be used to conclude that he is guilty. Section 11(c) protects the right not to testify in a criminal trial.
The presumption of innocence is also important in sexual assault cases. There are obvious reasons for this, including the history of penalties for sexual assault offences. After Confederation, there were only three offences in Canada that would attract the death penalty: rape, murder, and treason. It wasn't until 1950 that the death penalty for rape was abolished. Now, the penalty for sexual assault includes jail terms of up to 14 years, if the Crown elects to proceed by indictment. For the Ghomeshi trial, because of the passage of time, the Crown had no choice but to proceed by indictment. The stakes are, in these cases, very high. There are no discharges and no conditional sentences available for sexual assault.
Another complicating factor in sexual assault cases is that there is often no corroborative evidence. There are often no medical records, no DNA samples, no forensic evidence, no video and no independent witnesses. Of course, in other cases this does exist. But in the absence of corroborative evidence, these cases become about the word of the person making the allegation. And while it is troubling to think it, simply blindly believing people who claim to have been sexually assaulted creates a significant potential for abuse. It also increases the danger of wrongful conviction, something that is the greatest tragedy that can occur in our justice system.
A real-life example of the dangers of simply believing survivor testimony comes from the travesty of justice that occurred in Martensville Saskatchewan in 1992. A woman accused the daycare workers looking after her son of sexual abuse. The allegations, hundreds of them, began to pour in. And the facts ran rampant. Ultimately, charges were laid alleging a satanic ritual sexual abuse that threaded throughout the town with a group known as the Brotherhood of the Ram. A police officer was alleged to have forced children to engage in oral and anal sex at gunpoint; children at the daycare alleged they had been taken to a shed in the yard and had axe handles inserted into their penises.
Common sense dictates that such an action could not occur without obvious physical trauma. And yet, people took the children at their word. Moreover, the children were encouraged to tell their stories, and the allegations were fabricated through the improper witness interview process conducted by police. After a lengthy trial by jury, two of the daycare owners were acquitted of all charges. Their son was convicted of eight counts of sexual assault and/or anal intercourse. All but two of those convictions were quashed on appeal.
This case is, and rightly should be, viewed as a national embarrassment. But it highlights the dangers in blindly accepting allegations of sexual assault. It also, to some extent, mirrors the Ghomeshi case in that one allegation led to a spate of others being levied against the same individual. The concern that arises in those cases is that the "memory" of a sexual assault is a false memory. This isn't always true, but it is dangerous to simply accept that something occurred because there are multiple similar, highly publicized allegations.
This is another tragic case - a matter proceeding to charges because a young woman's mother identified her supposed assailant after engaging in her own private detective work. It was the strength of the mother's identification evidence that led to Mr. Hanemaayer accepting a plea deal in order to avoid finishing the trial. He pled guilty to a crime he did not commit. The entire trial it was evident that the word of the mother would be accepted, despite Mr. Hanemaayer's intention to argue that he did not assault anyone.
Turns out, the young girl who was assaulted in that case was a victim of Paul Bernardo, the famous Canadian serial killer and rapist. And even though Mr. Bernardo confessed to that assault once apprehended, it was not until two years later that Mr. Hanemaayer was even released from prison, after a late appeal was allowed. The accepted word of the witness in that case was so powerful that a confession from the real perpetrator was not enough to simply allow justice to be done and have an innocent man released from jail.
I had the pleasure of meeting Mr. Henry in a wrongful conviction class I took, shortly after his release. He was convicted of ten different sexual assault cases on the basis of faulty and frail identification evidence from the survivors of sexual assault. Essentially, the "I believe survivors" rhetoric prevailed at his trial, and in how the case was handled by the prosecutors. The Crown did not disclose inconsistencies in the victim's statements, a pretty damming lineup photograph, and evidence showing that the sperm samples did not match Mr. Henry's blood type. The word of a survivor was enough to wrongfully put him behind bars for 27 years.
Turns out, he was innocent. Ivan Henry probably doesn't agree with a system that involves blindly believing survivors and basing convictions on that rhetoric.
Ghomeshi and the Presumption of Innocence
Had these cases been decided from the notion of a presumption of innocence, these tragedies of wrongful conviction would not have occurred. There are thousands of examples in modern systems of justice of the wrong person being convicted for rapes, sexual assaults, and murders on the basis of the testimony of victims or eyewitnesses. The three cases I've mentioned above are the three extreme examples, but they illustrate the very point that Ghomeshi's case also illustrates: the presumption of innocence is of fundamental importance in order to preserve the justice system.
The problem that arose for the Crown in Ghomeshi's case was not one of a failure of the justice system to protect survivors of sexual assault. This case, instead, is a perfect example of how justice is supposed to be done in Canada. The witnesses in Mr. Ghomeshi's trial colluded, they lied on the stand, and their testimonies were fraught with inconsistencies. The prosecution was not made aware of all of the material facts, including letters and post-offence relationships with the accused, and so they could not adequately prepare to deal with these aspects of the case. In a case where this information had been provided to Crown in advance (by the complainants) the Crown could have elected to call expert evidence to explain the actions of the women. But as it stood, they could not do that.
Nothing about the verdict in Mr. Ghomeshi's case stands to undermine sexual assault trials in the future. The judge looked at all of the evidence and asked whether it was sufficient to displace that golden thread of innocence that any accused person enjoys. On the particular facts of the case, it was not.
This case should not deter women from reporting sexual assault. The "this is why we don't report" attitude is of little value. The criminal justice system doesn't serve the goal of making victims feel better, or of seeking retribution for victims of crime. Criminal trials are about determining the truth within the system of justice we have established. Women should report sexual assaults so that police investigate them. So that there is more dialogue about the treatment of women. So that prosecutors become more skilled at prosecuting these cases. For thousands of reasons. Or, they should not if they don't want to.
But the decision to report should not be informed by what will happen in a criminal trial. Marie Henein's cross-examination was appropriate, proper, necessary for her client, and in keeping with her ethical obligations as a defence lawyer. I'm sure it was also -- from my own experience -- unpleasant at times. There cannot be one Charter of Rights for those accused of sexual assault, and one Charter of Rights for everyone else. Reforms to the criminal justice system in sexual assault trials that embody the #IBelieveSurvivors rhetoric will have a negative trickle-down effect to other criminal cases. Tugging away at the golden thread of the justice system will unravel the whole thing.
I believe survivors. But I also believe in a justice system that lets those accused of criminal offences make full answer and defence, be presumed innocent, and choose whether or not to testify. And I do not think those two have to be mutually exclusive. Criminal justice reform is not the answer to the outrage in this case. Any less, and we will wind up seeing many more instances like Martensville, Ivan Henry, and Anthony Hanemaayer.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.