The presumption of innocence, denied

My colleague, Tim Jackson, has written a really phenomenal piece this morning on the belated acquittal of Australian Cardinal, George Pell. You should read it all, but one line stood out:

It’s well known that many clerics across the world committed the most heinous crimes against children in the mid-to-late 20th century, but the targeting, vilification and trial by media of this single man, George Pell, leading up to his first hearing in March 2018 will live long in the memory of those who used to value a pre-verdict presumption of innocence for all.

It is impossible to say what lead a jury to erroneously believe that it was possible that a cleric, in full priestly regalia, would pin an altar boy up against a wall and grope his buttocks in full view of 50 parishioners, and have nobody notice. It is harder again to understand how a jury would not wonder how somebody allegedly so sexually reckless would not only climb the clerical ladder, but become a leading candidate, in some corners, for the Papacy. If Pell was the monster he was made out to be, then it would have been almost impossible for nobody to notice.

As Tim says, the allegations against Pell were always, to anybody reasonably fair of mind who read them, literally unbelievable. Not because it is impossible for a Cardinal to be a sexual predator – there have been many of those, sadly – but because the simple facts of the allegations themselves were absurd.

If you don’t know, the allegations against Pell were that he sexually assaulted two Choirboys in 1996, while he was serving as Archbishop of Melbourne. The assault was alleged to have happened in the five minutes between the end of mass, and the Cardinal going outside to shake the hands of his parishioners, while the sacristry door was open and anybody could have walked in.

In the trial, the prosecution were unable to demonstrate that Pell could reasonably have expected to have been alone at the time, meaning that their case rested on having the jury believe that a man with an unblemished record and no other complaints against him was actually such a sexual maniac that he would risk a frenzied five-minute assault in the time and place where he was most likely to be caught, but never do so at any other time in his life or career. It was patently absurd, and yet he was convicted and has spent over a year in prison.

In his piece, Tim argues that anti-catholic bias had a large role to play in the Cardinal’s wrongful conviction – and reading some of the Australian coverage of the case, and many of the tweets about it, it’s hard to argue with that. The crimes of a whole litany of clergymen have undoubtedly created at atmosphere whereby it becomes relatively more surprising when an accused priest is innocent, as opposed to guilty.

But the point of writing separately here is to articulate the view that there might be more to it than simple anti-catholicism, real though that undoubtedly is. In the western world at large over the past decade, there has been a consistent and persistent assault on the presumption of innocence in respect of sexual crimes. We’ve had #metoo, and #believeher, and even more than that, the politicisation of the justice system in respect of its handling of sexual offences.

Just under two years ago, President Trump’s nominee to the Supreme Court, Brett Kavanaugh, was accused of sexually assaulting a classmate years earlier. Though there was no evidence, of any kind, to support the allegation, it was widely believed, and an entire media campaign was orchestrated to demand that everybody should believe Christine Blasey Ford and to call her brave for coming forward. But to be clear: It’s only brave to come forward with an accusation of sexual assault if you’ve actually been sexually assaulted. If you haven’t been assaulted, it’s criminal, and psychotic.

And in that case, as a result, we had the uttely absurd spectacle of Kavanaugh’s defenders adopting a position that basically said “we believe Ford, and she’s very brave, but there’s no evidence to support her allegations”. This was, of course, the worst outcome for everybody, because it at once made Ford seem credible and therefore horrendously victimised, Kavanaugh seem suspicious, and his defenders seem ridiculous – “we believe her but we can’t prove it so we’re putting him on the court”.

The point is this: It is a basic tenet of our justice system, for a very good reason, that if you make an accusation against somebody, you must be able to prove it. And until you prove it, beyond a reasonable doubt, that person is innocent and presumed to be innocent forever. The corollary of the presumption of innocence is a presumption of scepticism of accusers: “You’re saying Cardinal Pell assaulted you? Prove it”.

This latter point sits very badly with victims advocates, of course, because, as they rightly point out, it puts the victim on trial just as much as it puts the accused on trial. They’re completely correct about that – but it doesn’t matter.

The reason we have courts is to uncover, as best we can, the truth and the facts of a particular alleged crime. By necessity, that means that both parties are, to some extent, on trial. But only one of the parties stands to lose their liberty: There is no criminal penalty for an accuser if the accused person is found innocent. They walk out the door free whatever happens. That is not the case for the accused, who, if found guilty, may lose their liberty.

That’s why we have a presumption of innocence. When it’s gone, and people start to presume guilt, things like the Pell case happen. We know this all too well in Ireland, having witnessed horrendous miscarriages of justice happen to Irish people during our recent troubled past, like the Birmingham six and the Guilford four.

Victim’s advocates are correct that for victims of sexual assault, trials can be horrendous. They are almost certainly correct that the process of a trial inhibits some victims from coming forward, and allows some criminals to walk free.

But that’s the price we pay for living in a civilised society. Sometimes, criminals are going to get away with it. We decided long ago that having a few get away with it was much better than the alternative – locking up innocent people.

Let us never forget that. The presumption of innocence really matters. Thank goodness, for George Pell, that seven Australian judges agreed.

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