Tagged: presumption of innocence

Devil in the Harbour – reader rebuttal

Contrarian reader Joyce Rankin reacts to Contrarian’s caution that justice will not be served by presuming a hearsay accusation of sexual assault to be true in every detail. I don’t usually print reader responses at this length, but in the interests of fairness I will do so in this case without edits.

Please, please, please don’t be one of those men who keep doubting that a rape took place. Every woman knows that there are many many rapes that are never reported because the victim knows exactly what kind of a shitstorm she will letting herself in for and decides not to report. Decides that the trauma and hurt of being raped is bad enough, and she doesn’t want the trauma and hurt of being insulted and be-littled and her private life examined in public. I’ve read that the incidence of false reports is something on the lines of 2%, and that’s including the grey area of women raped by their partners.

The Groveland case is not something I know much about, but for you to say that it’s doubtful a rape took place because the woman was a “bad egg” –how 1950s of you! I think it more likely that the woman was raped by someone either close to her, or someone in a position of power, and .she had to come up with a story to account for things. Knowing that an accusation against the true perpetrator would not be believed (maybe because he was a white man with influence, and she was a young woman with none), she blamed it on those young men more vulnerable than herself. Otherwise it’d be HER OWN FAULT, because we all know women aren’t supposed to let it happen to them, and if it does, they must have done something to cause it.

And exactly what made her a “bad egg”? Had she actually had sex before? been known to take a drink? I guess that meant that she was “asking for it!” Because we all know that no men, young or old, has ever had sex, taken a few drinks, or gone out of the house after dark.

So does that mean that if you were with a group of work/classmates and you were all having a few drinks, that they decided they wanted to have sex with you and you didn’t want to, and they said, “well, you came to the party, what else did you expect?”, they raped you, does that mean that it would be your fault? That you should have known better than to go there, or that by having a drink you might expect something to happen?

In the Cole Harbour case, it seems the existance of photos show that the rape did indeed happen. The fact that some of the perpetrators bragged about it, and spread the photos around, shows just how ingrained this rape culture is. The boys expected the victim not to say anything, because they knew that she knew that their word would carry more weight, and that their possible futures would be considered worth more than hers. That they had the upper hand. Again.

You can doubt that a rape took place, if you want to delude yourself. But I ask you: why is the occurrance of rape held to a higher standard of proof? If I called the police and they came to my house and my door was standing open, the lock was broken, items were missing, my computer was gone, and the house was torn apart, they (and my neighbours) would assume that I’d been burglarized. If I called and the police came and found that there was a person lying in the street dead, with injuries that could not be self-inflicted, they (and passers-by) would assume that a killing had taken place. But if a woman calls the police and she’s been beaten and had forcible sex, they ask her about her sexual history, and everyone starts trying to find reasons why it was her fault -the way she was dressed, she was out at night, she had a drink…….. If the burglar breaks into your house, no one tells you it is your own fault for owning nice things.

It is true that we should not assume guilt in a court of law, but I think if the boys were bragging about it, then we are pretty sure it happened. The question is, why did the police take so long to do anything?

I was going to say, please don’t conflate these two stories, but on second thought maybe you can. Because the common thread is that many people don’t believe a woman who says she’s been raped, and the questions always come down to the victim’s conduct, rather than the rapist’s.

Because many sexual assault victims do not report the crimes, and because the nature of sexual assault is such that testimony often comes down to he-said-she-said disputes that cause genuine victims to be disbelieved, some feminists have come to the position that all such allegations must be believed; to doubt them is to abet rape culture.

I understand how they reach that point, but I believe they are wrong to do so. Such blanket assumptions will inevitably lead to wrongful convictions.

Rehtaeh reaction – continued

I have more reader mail on the furore around Rehtaeh Parsons’ death and the factors that led to it. Once again, a few preliminary points.

  • Rehtaeh’s family and friends are going through an unimaginably horrible experience, one they have handled with grace and courage. The one point that united everyone in this case is sympathy for their ordeal.
  • It bears repeating that, if you or anyone you know are having suicidal thoughts, please call the toll-free Kid’s Help Line at 1-800-668-6868 or the toll-free Suicide Prevention Line at 1-888-429-8167. Also please check out this website, and this list of warning signs.

In a post on April 11, I raised a number of misgivings about the frenzied public response to Rehtaeh’s death. I expected my views to provoke controversy, but in fact, most of the emails directed to Contrarian’s comment link (at the top of this page) have been positive. There’s an initial sample here.

Many more negative comments appeared on Twitter, where I had a series of vigorous exchanges with people who thought I was too trusting of police, and not sufficiently sensitive to “rape culture” and bullying. In particular, some reacted angrily to my contention that photogenicity played a role in the explosion of media interest in this case. Others thought the existence of a photo depicting the November, 2011, encounter between Rehtaeh and four young males ought to have been an open-and-shut basis for a “child pornography” prosecution. Much of the discussion focused on exactly what we know and do not know.

To follow some of these discussions, check out the Twitter feeds of Daily News alumnus Ryan Van Horne, Herald reporter Selena Ross (who was the first to break the Rehtaeh story), Tim Pratt, @allisomething, @KristiColleen, Raveen S. Nathan, and André Pickett.

Meanwhile, Sydney lawyer Candee McCarthy has called me out on a point of law. I wrote that, “a jury which concludes only that the accused is probably guilty must acquit, and police and prosecutors who reach the same conclusion should not lay charges” [Emphasis added]. Replies McCarthy:

Although I agree with your assessment regarding a jury’s obligation, I don’t believe that police and prosecutors should be held to the same standard as a jury. I submit that police should not lay charges frivolously, but they should lay charges if there is evidence or information to support a charge; a charge is not a conviction and should not be held to the same standard as one. The police shouldn’t need to prove a case to lay a charge. They have to be reasonable, sure, but out of the “three tiers” (for lack of a better way to put it), their burden is the least onerous.

The Crown then has the job of proving the case. It is the Crown Attorney that determines whether to prosecute the charges laid by the police, but the crown is not (and shouldn’t be) the judge and jury. In the interest of serving the public’s interest they need only ascertain a reasonable prospect of conviction. (As such I submit they should be prosecuting cases where they believe the accused is “probably guilty”.)

I confess that in writing my quick summary of the presumption of innocence, I relied on that prestigious legal journal, Wikipedia. And when I wrote the clause McCarthy objects to, I wondered if I was overstating it. Apparently I was. I am not a lawyer, but I do wonder if McCarthy overstates the ease with which police should lay charges in cases where they are uncertain of guilt. I know that the Marshall Inquiry devoted a lot of time and thought to the roles of police and prosecutor. If any lawyers or judges out there want to weigh in and help educate the public, I’d love to hear from them.

McCarthy concludes:

This is a sad case all around and I agree that folks and the media are quick to pass judgment… just as all too often they pass judgment on young women for their private sexual behavior (consented to or not) by calling them a “slut” and thinking it’s ok to disrespect these women’s bodies by sharing personal and intimate photos. It’s not like these types of allegations are rare lately… If we as a community are becoming more outraged over victim allegations, I say so be it. Maybe we need it – it’s a hell of lot more comforting to me than to continue to bear “rape culture” commentary and victim blaming.

Tim Segulin:

The outrage and sadness is so palpable at the moment that it is virtually impossible to remind people that while a beautiful young woman has lost her life in a most horrific and tragic way, and allegedly 4 young men were somehow involved, nobody has been convicted of anything, and the police have so far been unable to build a strong enough case leading to charges that would lead to such a conviction. Vigilante justice will only lead to further crimes and in all likelihood more injustice. All the publicity and the extent of public reaction since this story broke may well provide the impetus for somebody to come forward with something the police could build a case. This sad story is far from over.

Janet Connors:

I have… feeling a bit ill about the hysteria. The British gossip media has now picked up the story. This poor, sad girl, seems be getting forgotten in the frenzy of public grief, blame, politics and just plain old bad journalism.

I wonder how this has become a story about bullying, and the reactions of others who seem to think the solution is to bully the boys. I don’t understand a lynching mentality and hopefully, never will.

I hate the expression, “this could have made her death mean something,” because nothing could ever make this death worthwhile. However, this sad affair could have become a lightning rod for so much positive discussion about social justice, teen alcohol consumption, depression, sexual rights, and sexual health, etc. What a shame that we, in Nova Scotia are so lacking in visionary leadership, be it social, political, or educational….  My 2 cents…

I guess it’s obvious I agree with Janet. If this awful set of events does not spur concerted community action on “teen alcohol consumption, depression, sexual rights, and sexual health,” instead of kneejerk demands for vengeance, we will have missed a tremendous opportunity.

Jack Garnett:

“What if the cops and prosecutors were right?” I guess now we will find out, unfortunately still much too late for the teenager’s family. In other cases, the cops ask publicly for anonymous tips to help with their investigation of criminal activity. I wonder/doubt if this was initiated in this case, perhaps because it was not considered to pass the test of “criminal.”

Reinforcing the inadequately defined “vigilante” boogeyman (which the Anonymous press release you provided addressed and denied), and raising the girl’s “depression” in an ambiguous manner that should have clearly clarified that there was no suggestion it could have caused this suicide independent of the [alleged] rape and subsequent internet humiliation, seemed a little bit manipulative to me.

Several other people pointed out that the Anonymous statement I linked to specifically rejected vigilante action, a point I should have noted.

“Given that the topic of your post is on the nature of reporting in the matter,” wrote Brad Fougere, “that’s kind of reckless, no?”

Here is the pertinent excerpt from the Anonymous release:

We do not approve of vigilante justice as the media claims. That would mean we approve of violent actions against these rapists at the hands of an unruly mob. What we want is justice. And That’s your job. So do it.

The names of the rapists will be kept until it is apparent you have no intention of providing justice to Retaeh’s family. Please be aware that there are other groups of Anons also attempting to uncover this information and they may not to wish to wait at all. Better act fast.

Be aware that we will be organizing large demonstrations outside of your headquarters. The rapists will be held accountable for their actions. You will be held accountable for your failure to act.

Surely paragraphs 2 and 3 belie the pro forma rejection of vigilantism contained in paragraph 1. Like so many others, Anonymous presumes guilt (not innocence, as a civil societies do). It presumes the right to gather names and release them, if the criminal justice system does anything other than prosecute the implicated boys. And since all bullies are cowards, Anonymous does this from behind a mask of anonymity.

Fifty years ago and 1,000 miles to the south, they would be called the Ku Klux Klan, and like the Klan, they are deserving of community scorn and disgust. In this regard, it is astounding that the CBC and other media outlets have shielded the identity of the local bully who speaks for Anonymous, while giving him a platform from which to spread bile. Surely some journal or journalist must be up to the task of outing him.

Patrice Bolvin:

A free society relies on functioning governmental institutions and police forces. Right now we don’t have that in Nova Scotia, in my opinion, because there is too much bureaucracy, a lack of public accountability, and a lack of effective coordination of services.

Thanks again to all who contributed. Join in by clicking the “Email a Comment” link near the top of the page.

Presumption of innocence: a primer for Nova Scotia’s NDP

Back on the last day of June, CBC Radio’s Information Morning program put Justice Minister Ross Landry on the hot seat for the Dexter Government’s embrace of the Civil Forfeiture Act, a right-wing scheme to short-circuit the presumption of innocence. More accurately, the program’s listers put him on the hot seat.

The act lets cops seize property from suspects as long as they can convince a court the assets probably came from criminal activity. No proof needed. Just probability. As a standard of justice, it’s more Queen of Hearts (“First the verdict; then the trial”) than Justice Blackstone  (“Better ten guilty persons escape than that one innocent suffer”).

Callers to the CBC understand the principle, even if the NDP Justice Minister does not.

Caller One: “Is it too difficult for our highly trained police service to obtain a conviction? Maybe it is. It would certainly explain why they’ve had to find an easier way to go, but it doesn’t explain why we are letting them do it.”

Caller Two: “This is 1984 guys coming at us here. This is Orwellian beyond a reasonable doubt. Due process. That’s why they fought the bloody wars. Isn’t that why we’re fighting the bloody wars today? This is outrageous.”

Caller Three: “With no due process and no actual determination of guilt, innocent people fall between the cracks. It is an unconscionable travesty of justice that gives police unprecedented powers and will lead to abuses as has been evident in other jurisdictions.”

Caller Four: “It surprises me that we are willing to stand by and watch such corners being cut in our justice system. We should all remember: We could all be next if this type of procedure continues.” Under restrained questioning from host Steve Sutherland, Landry responded with the sort of vapid talking points that are becoming a hallmark of the Dexter administration.

The act is another tool for police to go over criminal assets and go after assets that are the proceeds of unlawful activity.

Well sure it’s another tool — one democratic societies have eschewed for generations. The whole interview is worth a listen:

[audio:http://podcast.cbc.ca/mp3/podcasts/cbnsinfomorn_20110630_39097.mp3|titles=debate_react]

My question is this: What on earth has happened to Nova Scotia’s NDP? Why wasn’t this malevolent piece of legislation rescinded at the first sitting after their election? Where are Maureen MacDonald, Howard Epstein, Graham Steele? How can they sit quietly while their government tramples on the very principles that brought them into politics?