Bill Cosby and Jian Ghomeshi are innocent of the crime of sexual assault, and they don't have to prove it.
Mr. Cosby has never been charged with rape, as it is still called in the United States, but faces allegations, some of them recounted in civil lawsuits, of having drugged and sexually assaulted multiple women over 40 years. Mr. Ghomeshi is charged with four counts of sexual assault and one of overcoming resistance by choking; numerous women have publicly accused him of assaulting and harassing them in heinous ways, and their allegations have been widely reported.
Both men are innocent of any crime. We can say that with legal certainty – in fact we have a duty to say it – because neither has been found guilty in court. In Canada, due process and the presumption of innocence trump all. It is an editorial position that would have been uncontroversial a few years ago.
But suddenly it is no longer politic to presume the innocence of a man accused of sexual assault on the sole grounds that he has not been charged, let alone found guilty by a jury of his peers. Why? Because we continue to see evidence that powerful men are shielded from accusations of sexual assault and harassment by underlings, or by society's willful blindness; and because so many women feel that it is pointless going to police with sexual-assault allegations.
We are at a moment in Canada when very few would stubbornly insist that a man did not transgress just because police didn't press sexual-assault charges based on a woman's complaint, or because he was acquitted in court. On the contrary, it has become the received wisdom that if a woman alleges assault, she is far more often telling the truth and correct in her accusation than Canada's low conviction rate of 25 per cent implies.
This isn't good for anybody – not for men accused of sexual assault and not for women who are assaulted. It means Canadians' faith in their justice system is shaky when it comes to one of society's most contentious crimes. This year may well be remembered as the tipping point in a shift that is alarming to a country built on the bedrock of due process – but perhaps also necessary when that same society strives for fairness.
Mr. Ghomeshi and Mr. Cosby are innocent until proven guilty. Both men, however, are being treated as though they have been convicted in court. The loudest voices in the public square have not been those of the two men's lawyers and allies protesting their innocence but those of the vast majority who have remained silent about the destruction of their careers and reputations, or even celebrated it.
Mr. Ghomeshi has quite literally been obliterated. The CBC fired the radio host and removed his portrait from the walls of its Toronto headquarters in the space of 36 hours. He was subsequently edited out of an awards television show, dropped by his publisher and his PR firm and replaced as the host of a major book prize award ceremony – all well before he was charged.
Mr. Cosby, too, has lost television deals and seen public performances cancelled, even as he maintains his innocence regarding the allegations against him.
The shift from a presumption of innocence to a tolerance of public shaming is easily explained by the ongoing failure of our justice system to defend sexual assault victims. If police did not continue to dismiss the majority of victims' complaints, and if our courts imposed tougher sentences on convicted offenders (the average in Canada is two years, and often the sentences are conditional), the pendulum might not have swung to this new place.
Mr. Ghomeshi and Mr. Cosby are presumed innocent, but they are stand-ins for a justice system that has been found guilty of failing female sexual-assault victims.
How can this possibly be fixed? We need a criminal justice system that delivers sexual-assault verdicts that align with the personal experiences of women. But we also need the presumption of innocence and due process, and for the criminally accused to be able to defend themselves by all reasonable means.
One solution lies in a public re-examination of consent. Our laws protecting women's right to consent are progressive and clear – on paper. In court, they are mud. Proving beyond a reasonable doubt that there was a lack of consent is impossible when our society continues to think it reasonable that women bear some of the responsibility for men who self-servingly misinterpret their words and actions. That's an unfair way of thinking that needs to end.
We also need to reinforce society's abhorrence of sexual assault. It's remarkable that the Harper government's tough-on-crime agenda has targeted armed robbery and child pornography but has never bothered itself with rape. Too complicated, one imagines. But unless the federal government picks up this gauntlet, we will continue to have a criminal system that is deservedly suspect.