The Moot Times UCalgary Law
“I Believe Her” vs. the Presumption of Innocence
Ever since #MeToo, I have grappled with my moral obligations as a female, as a law student, as someone who has been sexually assaulted, and as someone who has chosen not to speak up about it until years later.
I wonder now, after my fear and admiration for Christine Blasey Ford speaking up, would I report it if given the chance? Are you wondering why many of us choose not to? Let me just bring to your attention the risky nature of reporting a crime with the only surviving “evidence” being a memory from ~8 years ago. For many, this is done as a young person trying to become successful in a professional world where reputation is important. On top of that is the consideration of the overwhelming combination of reactions - supportive and hostile and everything in between. It’s much easier to stay silent.
I have heard female friends and colleagues express strong “I Believe Her” views that are not always rooted in merit, and I have a lot of trouble with that. Trudeau has also unhelpfully chimed in (as he does) with his idealistic “believe all allegations” rhetoric, and quite frankly I’m sick of having a Prime Minister this separated from reality, despite his good hair.
However, I have also heard male friends and colleagues become outraged on behalf of accused politicians while making claims that these allegations are often lies rooted in revenge-seeking agendas, which is equally troubling to me. As a female, I empathize much more easily with complainants of sexual assault, especially given that I have experienced it and could not imagine making an allegation bearing such heavy consequences unless I absolutely needed to…BUT in the court of public opinion we, too, have a moral obligation to weigh the evidence and make inferences with care and reason.
Listen, I’m not here (just) to preach to you and hopefully open up dialogue, I also hope to push towards a middle ground where both the accuser and the accused have a fair shot at achieving justice, particularly in situations where an alleged assault is reported long after. Given that only 12% of sexual assaults reported by police result in a criminal conviction, there has to be a better way to create accountability. Criminal lawyer David Butt suggests the possible route of a civil suit for these sorts of claims, meaning no jail time and no right to silence on behalf of the accused. This would also entail the civil standard of “balance of probabilities”, lower than the criminal standard of “beyond a reasonable doubt”, while offering alternative solutions and outcomes that come with civil litigation as opposed to traditional criminal prosecution.
We also need a better way to enable complainants to seek justice without the very serious threat of re-traumatizing them. Only 6% of sexual violence is reported, and if that doesn’t send a very clear message, I don’t know what does.
Possibilities that have been recommended include:
1. Separate courts. This is not a new idea, people. We do this for domestic violence - why are sexual assault complainants not seen as equally vulnerable and in need of access to justice involving specialized training and knowledge? This option could possibly increase the reporting rate, which is key in hopes of decreasing rates of sexual violence, too.
2. Restorative justice. The biggest problem with this idea is that it requires the wrongdoer to take responsibility. This has been attempted with the Dalhousie Dentistry scandal with mixed reviews.
3. As mentioned previously, civil court. Both parties give evidence, both are cross-examined, and both obtain counsel. Results are arguably more remedial as opposed to punitive.
All that is to say, much of the time a binary is harmful and we should encourage each other to consider both sides of every story or at least all consequences. This issue has yet to see meaningful change, and as law students and future lawyers we are in a place of power and privilege and should feel the need to encourage and enforce that change.
Do you have any strong opinions for or against what I’ve put forward here? Let me know, I want to hear about it.
Written By Sara Sicherman