Monday, December 1, 2014

What standard of proof do I apply to my opinion of Jian Ghomeshi



Everyone knows that proof in a criminal trial must be “beyond a reasonable doubt.” But, does this mean that as individuals we are expected to suspend all personal judgment about a matter until the allegations have been proved in a court of law? I submit, your honour, that such a burden of proof in personal matters is just silly. In other words, the court of public opinion has a much lower standard of proof. And so it should. 

Criminal justice is a refined system. The accused is presumed innocent. There are delicate rules about what testimony can be considered evidence and what must be left out because it is simply too prejudicial to the accused. The burden of proof rests on the prosecution and never shifts to the accused. All of these refinements are because criminal justice is the relationship of the state to the individual. Collectively, we are really picky and protective about how we want our government to treat us individually. Collectively, we abhor the thought of the state rounding up innocents and putting them in prison because they might be the perpetrator of a crime (or even because they are probably the perpetrator).

Often in the weeks since CBC fired Jian Ghomeshi and he responded with his Facebook defense I have heard, “You have no right to judge until the allegations are proven in a court of law.” Or, “They are just allegations, they have not been proven.” The implication is that we ought to hold one and another to the same standard of proof as criminal justice. This, to be blunt, is ridiculous. 

My son takes his backpack when he visits friends – I am pretty sure he is drinking beer underage. My friend has stopped playing in our weekly soccer game, he is wearing a lot of cologne, and he is rarely home with his wife – I am pretty sure he is having an affair. A guy I just met has an opportunity to share with me and he would like to come over to my house on Friday night for coffee – I am pretty sure it’s a multi-level marketing scheme, probably Amway. The point is that to function as a person – as a parent, a friend, a partner, a business owner, or whatever – you never wait until the criminal burden of proof is established. If you did, your life, like the criminal justice system, would move too slowly. You would be frozen in indecision for months at a time. Not to mention that when I ask my new friend if it is Amway, he will not be under oath and will not suffer fear of eternal damnation for lying (which he should for pitching me on Amway in the first place).

I am not sure what standard of proof I apply to my daily decisions. It seems more akin to the civil standard of proof, namely, “on a balance of probability.” In other words if something is probably the case, I am going to assume that it is the case until more evidence sways me otherwise. This is more like the standard of proof in science, than criminal law.

If the Jian Ghomeshi saga featured just one single accuser then I might be prone to believe Jian’s story of rough sex and a jilted girlfriend seeking revenge. If it were just one single accuser then Jian’s story would be believable. His story might be the most reasonable explanation of events. And, I might have accepted it as true until some more evidence swayed me otherwise (indeed, this is what many did). 

But, there are eleven women and one man who accuse Jian of varying degrees of assault or harassment. I am incredulous that these twelve people have all made up their individual accusations. I am also incredulous that the media have somehow created these accusations. Thus, I am swayed. 

I don’t like Jian Ghomeshi. He disgusts me. And, I am reasonably entitled to that opinion.

Will the state put him in prison? That’s a different standard of proof, as it should be.

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