Saturday, March 26, 2016
What Then Would You Have Us Do?
I've read a lot of backlash commentary today on the Ghomeshi acquittals. There's a lot of outrage over the judge's refusal to convict the now reviled deviant. Some blame the justice system, others resort to ad hominem attacks on the judge, others fault Ghomeshi's defence counsel. Almost none of them fault the victims.
None of these denunciators offer the one thing that we need, how we should change the system to achieve a more preferable result. There are changes we could make that might have sent Jian to a lengthy stay in the Greybar Hotel. Here are a few:
In sexual assault cases we could abolish the presumption of innocence. We could go for the "guilty until proven innocent" approach. What could possibly go wrong with that?
In these cases we could dispense with the proof beyond a reasonable doubt as the threshold for conviction. How about "maybe" or "I guess so" or something along those lines. Something a bit vague, nebulous.
And what's with this business about having to tell "the truth, the whole truth, and nothing but the truth." Why not something more like "the truth or as much - or little - of it as you would like to tell us"?
I know. I've got it. How about we just ditch the presumption of innocence, the reasonable doubt business and that nonsense about the whole truth and nothing but. There is an alternative, time honoured at that - judicium Dei or Trial by Ordeal, King Athelstan's favourite.
Here's how it works. You get a big brass cauldron full of boiling oil and you drop an iron bar into it. The accused has to plunge his hand and arm in, grab the bar and fetch it out. If he manages to get it out but his skin blisters he's damn well guilty and it's off with his arm or head, entrails maybe.
But, of course, I'm being facetious. Yet the Ghomeshi case reminds us of the old truism that "hard cases make bad law." Ghomeshi got away with it, this time. That's law, it happens sometimes. Blame who you like, doesn't matter to me. I know who the Crown will be blaming and, frankly, me too. That said it's one case and it does not justify fanciful alterations of the judicial system. Let it go.