The presumption of innocence is a civilizational construct

“But I’m not guilty,” said K. “There’s been a mistake. How is it even possible for someone to be guilty? We’re all human beings here, one like the other.”

“That is true,” said the priest, “but that is how the guilty speak.”
― Franz Kafka, The Trial

It is a cliché to mention the stories of Franz Kafka and communism in the same breath. The problem is that you cannot not mention the sense of dread and inescapability Kafka’s characters felt when you talk about communism because that is exactly how it was. Just imagine what it meant for a citizen of a communist country when there was an allegation. At the very least, you were out of your home and your job within minutes. At the most, you were killed. Attempting to defend yourself was proof of guilt.

It is worth remembering that system when thinking about the presumption of innocence and what it means to our civilization. It is my contention that the presumption of innocence is not merely a legal construct, as Michael Spratt argues in his article The presumption of innocence is for the court of law, not for protecting the reputations of the powerful, but a way of thinking about the competing values when an allegation of wrongdoing is made. What should we do as a society about this most human of problems?

There are many elements to a human life that people hold at the core of their identity: career, home, savings, family and reputation are some of the most prominent. These all can be threatened by an allegation. If the presumption of innocence is merely a legal construct and it is correct that “Insisting on the application of the presumption of innocence outside the courtroom diminishes it inside the courtroom,” as Spratt writes, that means an allegation could, or perhaps should, be enough to take away these things.

I respectfully disagree. The presumption of innocence is much more than a legal construct. It is a civilizational construct and the correct way to react when confronted with an allegation of wrongdoing.

Whenever there is an allegation, it is a completely intuitive and unimpeachable rule of logic that the onus is on the person making the allegation to produce evidence of it and not on the subject of the allegation to prove a negative. Think about how deeply unfair and absurd it would be if, for example, someone alleged you were a sexual pervert or deviant of some kind and, rather than produce evidence of the allegation, placed the onus on you to prove that you are not. You only need to imagine this situation for a moment to realize the sense of dread you would feel when you realize that such proof is impossible.

If the onus is on the person making the allegation and not on the subject of the allegation to prove a negative, then three concepts logically follow: the right to know what the allegation is; the right to challenge the allegation; and the right to have someone impartial hear the allegation and the response. A person who is the subject of an allegation should not need the protection of the Charter to have the ability to know an allegation and respond before suffering a consequence.

The standard of proof and what actions to take will vary widely depending on the context. Spratt provides many different examples in his article: a teacher accused of sexual misconduct against children in a school; a police officer accused of excessive force in front-line duty; politicians accused of sexual impropriety; and entertainers accused of sexual harassment.

It is important to clarify that the presumption of innocence must be separated from proof beyond a reasonable doubt. Spratt mentions the presumption of innocence and proof beyond a reasonable doubt in his article as if these two bedrock criminal principles must go hand in hand, but they are distinct. No one is advocating that proof beyond a reasonable doubt should apply outside a criminal courtroom.

But the presumption of innocence should apply outside of the courtroom in the situations above. Should a police officer accused of excessive force lose their job before having the opportunity to challenge the allegation? What if the alleged incident turns out to be on video and shows a completely different picture than what is painted in the allegation? Should a teacher immediately lose their job because of an allegation of sexual impropriety? What if it turns out that the allegations were underpinned by nothing more than an active rumour mill (see R. v. Connolly, 2017 ONCJ 370 at para. 44)? Should a politician lose their post because of an allegation? What if the allegation is that former U.S. president George W. Bush orchestrated the 9/11 attacks? Does it really change how to react if the allegation against the politician is sexual in nature but equally as crass and improbable?

The presumption of innocence is not a legal construct. To the contrary, the legal construct flows from the logic that, when it comes to an allegation, you cannot be called upon to prove a negative. If the possibility disturbs you that a police officer or teacher will remain on the job while the subject of an allegation for whatever brief period it takes to know the allegation and respond in front of an impartial decision-maker, it is my contention that you are not considering the alternative. The alternative is that the allegation is all powerful and that you cannot defend yourself. The alternative is that the onus is on you to prove the impossible. That alternative is worse than allowing the subject of an allegation to defend themselves before a decision on their fate is made. Imagine the experience of suffering the loss of a job, home, money or reputation before knowing, understanding and responding to an allegation. This is the logical conclusion of the argument that the presumption of innocence has no place outside of a criminal courtroom. And when you think of that alternative, though it may sound cliché, you have no choice but to mention Kafka and communism in the same breath again.