The presumption of innocence and trial by mob
Postmedia columnist Christie Blatchford wants you to know that she really doesn’t care what you think of her. Her acerbic speech last week to a roomful of lawyers and judges at the CBA-FLSC Ethics Forum was laced with profanity and self-deprecating jabs (when she gave a similar speech to another CBA audience, she said she “finished to a lumpen and hostile silence.”) She doesn’t just attack sacred cows; she beats them to a bloody pulp and mounts their heads on sticks as a warning to others.
But don’t dismiss her as another cranky contrarian. Strip away the snark and you’ll soon realize that Blatchford’s provocative positions are rooted in expertise developed over decades spent covering the criminal justice system. You might not agree with everything she says, but some of her insights are worth pondering.
Her topic at last week’s lunch was defending the presumption of innocence in sexual assault cases, a stand, she dryly observed, that she never realized would be controversial.
As a reporter at the Jian Ghomeshi trial, she says she was struck by fact that the court of public opinion had convicted him long before he ever set foot in a courtroom. “I may have been the only woman in the country who didn’t know there was something kinky about him,” she deadpanned.
About a month before charges were laid against Ghomeshi, the Toronto Star (which Blatchford repeatedly called the “Toronto Star Police and Detective Service”) published a report detailing allegations from three women who said the fired CBC host was physically violent to them without their consent before or during sexual encounters. In a front-page notice to readers, then Star editor Michael Cook said that in light of Ghomeshi’s “extraordinary” statement on Facebook the previous day (that he had engaged in rough sex) and his high public profile, it was in the public interest to detail allegations “that appear to have led directly to his sudden firing” as host of Q. (Any time the editor explains why the paper is publishing a story, Blatchford added, lawyers should consider it a trigger warning: “Your client will be traumatized if not likely fucked.”)
The barrage of publicity and public chatter – the sense of “lynching in the air” as she describes it – occurred as news of other sexual assault allegations filled the airwaves and social media channels. From Bill Cosby to Dalhousie dental students (disciplined for misogynistic Facebook posts), there was plenty of fodder for discussion.
What troubles Blatchford is the presumption that victims are always telling the truth. She contends that if you believe in the presumption of innocence you cannot automatically believe sexual assault survivors. She worries about the right to a fair trial and the consequences for an accused who is tried and convicted by the public in an era when social media can set a narrative in stone. People used to say you can’t win a battle with someone who buys ink by the barrel, she said. Well, “you can’t even get in the ring with someone with the web at their fingertips.” And even an acquittal can’t erase the long-term consequences for an accused.
“Ghomeshi didn’t lose his liberty, but he was destroyed by the process,” she said.
“I don’t think there is any recovery from this sort of thing. I think [he’s] done, and he’s not the only one.”
Blatchford takes a somewhat stern approach to sexual assault complainants. First of all, until there is a conviction in a court of law, they are just that – complainants. She does not believe police ought to comfort them because “they don’t work for victim services.” Second, complainants do not need their own lawyer. “There is no need to infantalize us,” she insists. Crowns can adequately prepare victims for trial. We don’t need to design a new system for sexual assault. Going to court and telling the truth can be a “cathartic” experience for a complainant.
Many would argue this ignores some of the inherent problems in sexual assault prosecutions and the challenges traditionally faced by victims that prevent many from coming forward in the first place. But by focusing on the cut-and-dried legal presumption of innocence, Blatchford puts her finger on a fundamental problem: the presumption of innocence doesn’t exist in the public realm where an accused can be sliced and diced on social media before they even get to court. Yet the verdicts delivered by extra-judicial players from bloggers to university discipline committees carry professional and personal consequences which can last a lifetime.
The answer, she thinks, might be to place a publication ban on the name of the accused in sexual assault cases until the verdict. It’s not something she says she would normally advocate, but it might be helpful here: “I can’t even keep track of the number of men who have been ruined by this sort of thing,” she says.
As for Ghomeshi: “He will always be able to say, ‘I was acquitted’. That will have to be enough for him.”