On the Presumption of Innocence As It Stands Between Private Citizens

[danieldwilliam]

I am a big believer in the rule of law and due process. Those are really important foundational rights. Democracies don't really function without them and democracy is important and the best system of government currently available(1).

A vital part of due process is the presumption of innocence in criminal matters; that if the state accuses you of a crime then the state has the job of proving you did the crime, that they must prove that you did the crime before you are punished by the state and that the standard of proof the state needs to reach should be quite high. Beyond reasonable doubt is a popular standard of criminal proof and I'm all in favour of that. I do not want people to be locked up for something they have not done.

However, the presumption of innocence and that standard of proof beyond reasonable doubt is the rule for interactions between (weak) citizens and the (mighty) state. I'm not bound by it. I can form an opinion of an individual based on evidence that has not yet met the criminal standard of proof or perhaps might not reach the criminal standard of proof. Certainly I can do so on evidence that has not yet been put to trial. I can act on that opinion (2). I can withdraw my custom or my company from someone based on what I believe to be true. I, as a private citizen, do not have to wait for the criminal standard of proof to be reached, or even the civil standard (3). I probably ought to as a general rule. If a matter is going to go to trialit is probably fair for me to reserve judgement as much as I can until the evidence has been lead in court and examined and cross-examined. It would probably be prudent to refrain from saying "X did Y and is a Y-ist" until there had been a trial of some kind. It might be ruinously imprudent to state as a fact something that is still sub-judice.

So in most matters I do try to reserve judgement and keep quiet.

I might well think to myself, "there's something to that" or "I won't be surprised if they turn out to be convicted." I might, in private conversation with someone I trust, say as much. (4)

Where I usually don't reserve judgement is where several people have accused a wealthy and well-connected individual of sexual assaults. Reporting a sexual assault is difficult. The process is uncomfortable, painful, humiliating, emotionally scouring and deeply unpleasant - at best. Accusations are hard to prove. The risk of making what turns out to be an unproven (but not untrue) accusation is grave. More so where the person accused is well resourced and the complainer is not. So I recalibrate my own personal threshold for thinking "yeah I reckon they did that, bastard."

If three, or four, or five otherwise unconnected (4) people make accusations that appear on the face of them to be internally consistent and where they point to the existence of some form of corroboration of their account of the matter, then that passes my own personal threshold for thinking that the accused has almost certainly committed serious sexual offences and that I am justified in behaving as if they had; starting now.

I'm not, in good conscience, going to go jumping about loudly shouting the odds and pointing fingers in public. I can't afford to be sued for defamation right now. But I know what I know and if several people have made credible accusations then I know they are almost certainly telling the truth and that's enough for me to think, "yeah I reckon they did that, bastard."

The test is perhaps not whether person X did this thing Y in a criminal way and is therefore in law a proven Y-ist, but whether I would be comfortable leaving someone I cared about alone with them or being alone with them myself.

And that's an important part of the difference between the state's burden of criminal proof and a private citizen knowing something. The state has responsibilities not to use the legal system to oppress private citizens. As a private citizen I have responsibilities and rights not to expose myself or people in my care to danger and a right and a duty to act on the best evidence available to me. Being innocent until proven guilty is a necessary protection of the (weak) citizen from the (mighty) state. It's not there to privilege the (stronger) citizen over their (weaker) fellow citizen.

So, I've heard what I've heard and I know what I know.

And at the moment, yeah, I reckon they did that, bastard.


(1) At least so it appears to me in my liberal social democracy.

(2) within the rules of anti-discrimination laws and the civil laws on defamation

(3) For example David Goodwillie

(4) Although see the Salmond case for a cautionary tale all round.

(5) see the Moorov Doctrine on this https://en.wikipedia.org/wiki/Moorov_v_HM_Advocate

Comments

[mountainkiss]

What inference do you draw from the Salmond case?

[andrewducker]

I think it's a tricky one to draw inferences from. The barrier between "There is sufficient evidence for a jury to send someone to prison" and "There is sufficient evidence that, were I to be a woman, I wouldn't want to spend time alone with him." can be very large.

[danieldwilliam]

Which is the nub of my post.

My mum used to say about some people "he makes my skin crawl and wouldn't get in a taxi with him".

[danieldwilliam]

I really don't know what to make of the Salmond case. His acquital on all charges is a matter of public records and one has to respect the outcome of the legal process. It's why I bring it up. Nothing about it makes sense. Multiple complainers about a well-resourced and influential person carrying through with their complaint indicates that there might have been something about it. But the proscecution failed (which is obviously not unusual for sexual assault cases). It's one of the few cases of this nature where I actually could just about believe that there was politically motivated conspiracy. Not perhaps that the entire accusations were made up out of whole cloth but that there was some coordinated pressure to push on with what turned out to be a weak case. But if it were a conspiracy then it wasn't a very good one because it failed.

But where I think I come back to is jury nullifiction, that the jury just wasn't up for convicting Alex Salmond not matter what he might or might not have done.

[bens_dad]

Did "Not Proven" come into the Salmond case ?

I know that its use is discouraged and that proving a negative in a rape case could be impossible, but this sounds like a case where "Not Proven" could have been appropriate,

[danieldwilliam]

One of the charges was not proven, which in Scots Law otherwise amounts to being found not guilty. Mechanically they are the same thing.

[bens_dad]

True, but it is the jury formally saying "we can't say he should be locked up, but we would not share a taxi with him".

[danieldwilliam]

Yes, although I think it had a stronger resonance in the past that it does now.

[andrewducker]

I think back to my time on a jury, and the need to have multiple different sources of evidence for anything that we were going to convict on, and how unlikely that is for any kind of sexual assault case.

[danieldwilliam]

It's one of the reasons why conviction rates are low. Not just the Scots formal requirements for corroboration but the general nature of many sexual assaults taking place in private.

There are others of course.

It's also why the Moorov doctrine exists so you can draw corroborative conclusions from patterns of behaviour that are only individually evidenced by single pieces of evidence.

[calimac]

O.J. Simpson was acquitted.

Nobody believed it.

[bens_dad]

As a private citizen I have responsibilities and rights not to expose myself or people in my care to danger and a right and a duty to act on the best evidence available to me.

The state also has such responsibilities; the option of "remanded in prison" does allow the state to lock up the un-convicted.

[danieldwilliam]

True and I'm not sure what the evidential burden is for a remand hearing. In practice it must sit below the full criminal threshold but also include some element of flight risk.