November 24, 2014

Commentary | November 18, 2013
Realities of harm
The flaws in presuming ‘innocent until proven guilty’
Written by | Visual by Midori Nishioka | The McGill Daily

“Just because somebody felt victimized does not mean that the alleged perpetrators are guilty of a crime.”

“[Court cases] often [have] substantive evidence…[not] simply a case of one party’s word against the other’s.”

“Condemning the (disgusting) nature of the sexual assault does not mean that we ought to be prejudicially condemning individuals who have not yet been convicted of it.”

“If these guys get prosecuted and are found guilty with just a word of mouth, it’s going to send [sic] a dangerous precedent which is that women are not [sic] longer responsible for their actions.”

The above statements are taken from comment sections of various online publications relating to the sexual assault charges posed against the three Redmen football players. All echo the sentiment often expressed of ‘innocent until proven guilty,’ implying unquestionable faith in the legal system and its ability to achieve ‘justice.’

The notion of ‘innocent until proven guilty’ is systematically flawed, not only in the aforementioned case, but in most that go through the legal process. First, it assumes that the laws under which people are tried in this system are just, simply because they exist. There are countless examples of laws throughout history and at present that most would consider unjust: slavery, residential schools, spousal sexual assault, and criminalization of homosexuality are among the acts condoned by historical Canadian laws, for example. ‘Innocent until proven guilty’ enforces the idea that crimes are only to be taken seriously when laws are broken; what of crimes or harm where no law is broken? Within our existing criminal-legal framework, these behaviours are given no legitimacy.

The idea that courts and legal systems are the best and only methods for holding people accountable to their harmful actions ensures that the state is the only judge for deciding and maintaining social values. Laws are decided above the general population. The state, through legal structures and other institutions, acts as an authority on what are considered ‘real’ crimes and harm, thus ensuring that the state has control over people’s behaviours and social values more than the communities actually affected by them. Not only does this disempower real people from determining their own values and implementing them in their communities, it also assumes that the state and its legal system are inherently just.

Any look at the disproportionate number of people of colour incarcerated in Canadian prisons, for example, indicates the racial biases of our so-called ‘justice’ system. Racial bias is one of many well-documented biases that permeate the criminal justice system: classism, transphobia, and sexism are others. The idea that an unjust system is the only authority on harmful behaviour belittles people’s own experiences and notions of safety.

Putting blind faith in the notion of a fair process for the accused centres the perpetrator of harm in any accountability process. It forces those who have been victimized or harmed to be put on trial, placing more trust in those who have negatively affected others than those who are negatively affected. This can easily shame, blame, and attack those who are victims. This is one of the many reasons why so few sexual assault cases are legally reported.

Accountability for harm that is caused to others is a necessary process for any community or society. However, that process must give legitimacy to any and all expressions of harm, regardless of whether they traverse existing laws or established rules. It hurts when someone takes advantage of me, and that must be addressed regardless of whether the specific actions are defined by the state as a ‘crime’ or whether or not there is sufficient evidence to prove their guilt. Guilt and innocence are ideas designed to perpetuate the status quo, and fail to take seriously the complexities and realities of violence and community relations.


Lily Hoffman is a member of the Union for Gender Empowerment Collective at McGill. They can be reached at lilysimon1@gmail.com.

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