In the wake of allegations against Jian Ghomeshi and Bill Cosby the debate about the criminal prosecution of sexual assault has been renewed. There have been protests at Mr. Cosby’s events and all sorts of twitter slacktivism.

The criminal proceedings against former CBC radio host Jian Ghomeshi for sexual assault have reached a conclusion this week, after it was reported that the Crown would withdraw the final sexual assault charge that was alleged to have occurred by a former colleague at the CBC. The Crown is expected to announce later this week that Ghomeshi will sign a peace bond that may include a provision to stay away from the complainant.

The media focused a great deal of its attention on the Crown’s use of peace bonds (see for example: CBC, National Post, ­­CP24), and the result was heralded as a definitive victory for Mr. Ghomeshi’s defence team. In effect, the peace bond was made as the result of the Crown conceding that it did not have adequate evidence with which to pursue the sexual assault allegations against Mr. Ghomeshi.

Most dangerously however, there have been numerous calls for something to be done to facilitate convictions for sexual offences. All the while, informed people insisting on due process and the presumption of innocence have been dismissed as “rape apologists” and “re-victimizers”.

I live in a country with one of the best – least bad – justice systems in the world, and possibly history. This is because it is more concerned with protecting innocence than it is with punishing guilt. As Lord Blackstone stated “[a]ll presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer”.

It is a far greater evil if an innocent person is convicted than if a guilty person is acquitted. Therefore, our legal system prefers that many guilty people get away with their crimes than the alternative. And so, it is a reality that rapists and victimizers will and often do walk unpunished.

This is a reality every criminal lawyer indirectly facilitates. Do I not desire a society where heinous offenders are brought to justice? I do, but more than that, I desire a society where the chance that an innocent law abiding person will be incarcerated for a crime s/he did not commit is infinitesimally small or non-existent. Sadly, our freedoms come with a price.

What are the Costs of our Legal Freedoms?

First let us consider the alternative ie. a society without such freedoms. Imagine a state where a multitude of allegations is not only sufficient for arrest and prosecution by the state (as is the case), but also sufficient for a conviction. Imagine if the only thing required for the incarceration of a free citizen was a rape allegation from enough women to conclude “they can’t all be lying”. Imagine a dystopia where women who claim to be victims of sex crimes are believed simply because they are women who claim to be victims of sex crimes. A woman could easily make an allegation against someone for the mere purpose of damaging his/her reputation, and this could be consequence free.

Such allegations would be used by wicked people with nefarious intent to remove men from their positions in society. Just imagine. Are you dealing with a demanding and verbally abusive employer? Give him an all-expense paid vacation to the pen with a rape allegation! Your boyfriend cheated on you with your best friend? Send them both to jail with claims of gang rape! Are you stuck in a bitter custody battle for the kids? Why fight for custody when your partner can be in custody for a sex crime he did not commit? Just make up a little lie.

Such allegations are already used by wicked people with nefarious intent to remove men from their positions in society. I have seen many many cases of sexual assault fabricated for ulterior motives. At face value there was no reason to disbelieve the complainant. I’ve seen complainants pressured into embellishing allegations by overzealous friends and family who refused to accept the truth about their daughter’s indiscretions. I have watched a conspiracy between a mother and grandmother to win custody through a sexual assault allegations unravel under my cross-examination. I’ve seen a woman charged and convicted with domestic assault turn and “re-victimize” her male victim by making up the most heinous sexual assault allegations I have ever heard when he refused reconciliation.

The innocent accused in all of these cases, and countless others, would be jailed if female complaints were believed merely for being female. It is true; men abuse their positions for gain. They lie, cheat, and exploit the system. But women do the same thing. Wickedness – particularly in the form of dishonesty is not exclusive to a gender. It is not only endemic to powerful men. It is not the calling card of “jilted ex-girlfriend[s]”. It is a human problem. Hence, anytime a person is levelling allegations in court, these allegations ought to be thoroughly scrutinized for any trace of dishonesty.

…So What are the Costs of our Legal Freedoms?

I have seen friends who were victims of rape not report the crime because of the legal process and accompanying stigma. I have spoken with a friend who began to question the reality of her experience in the face of skilled lawyers suggesting the contrary. I have seen victims abandon their cases after being wearied by questions and scrutiny. I have also had prosecutors offer lenient sweetheart deals to secure a guilty plea and to protect a child witness from the trauma of testifying. There is a great cost for protecting innocence.

The common law legal system is as perfect as those who administer it. Yet in its imperfections it strives to create the least imperfect system possible. And so, the system errs on the side of caution in protecting innocence because in a system where a law abiding person is rewarded with punishment, there will be no incentive for obeying laws. John Adams put it best when he proclaimed:

“when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me whether I behave well or ill, for virtue itself is no security. And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.”

Protecting innocence is costly, but punishing it is even costlier.