Written by: James van den Heever
One has to admire the tactical nous of the current #metoo campaign: call the offenders out in public and put them to the expense and trouble of clearing their names. It’s a highly effective way of bypassing a legal process that is sclerotic, ruinously expensive and, say many women, exacerbates the trauma they are already experiencing.
The fact that they have had to resort to these guerrilla tactics must stand as an indictment of the whole legal system, and a clarion call to the legal community to make some changes.
I nearly wrote “legal fraternity” but, of course, women are increasingly well represented both in legal practice and on the bench. Women should therefore be taking the lead in making the reporting of rape and the conviction of rapists a more streamlined process, and one that is more user-friendly in every way possible.
An additional benefit of such an initiative is that it might spark a general reform of how citizens access law. It’s not just rape victims who find that seeking redress is almost as traumatic as suffering the original wrong.
But, while it is effective, this guerrilla approach carries some real risks. Indeed, some of them are already beginning to materialise.
The primary risk relates to the concept of believing the woman who makes the accusation. It’s a perfectly sound concept because, as we all know, women making this sort of complaint are frequently met with vociferous condemnation and the assertion that they must have somehow “asked for it”. But we need an urgent discussion on what believing actually entails, because it is clear that it tends to translate into “guilty as accused…” or even “guilty because accused… and let’s let the world know about it”.
As any lawyer or legal academic will tell you, presuming that an accused person is innocent is really the boundary between savagery and civilisation; between the lynch mob and justice. It is a fundamental principle of the common law we inherited from Britain, and the all-important principle that protects all of us from the malice of our enemies and, perhaps even more important, the censure of whatever the current orthodoxy happens to be.
Another, even more venerable, legal principle is audi alterem partem — the obligation to hear both sides of a case.
Most unfortunately, both of these principles seem to be casualties in the furore caused by the current epidemic of accusations of rape and sexual harassment across the Western world. (As usual, men elsewhere are not held accountable, but that is a story for another day.) Believing the rape accuser now inevitably means accepting that the accused is guilty and, this being the Opinion Age, publishing that conclusion far and wide.
In what must rank as one of the most disturbing articles ever written by a law professor, Pierre de Vos recently made an impassioned case for the right of everybody to express his or her opinion on these matters. In “No, the Constitution does not guarantee a right to be presumed innocent by everyone until proven guilty”, he expended a considerable number of column inches quoting chapter and verse to prove that the Constitution only grants the right to be presumed innocent in a court hearing, and that this right does not stretch beyond the courtroom.
Strangely, he made no mention of audi alterem partem.
Strictly speaking, he is quite right. The right to be presumed innocent is restricted to the inside of a court. The same is probably true of audi alterem partem. But in his eagerness to support the cause of righteousness, the good professor is ignoring an important concept: laws are not enacted by Parliament simply to regulate our actions and punish transgressors. They are also meant to serve as guidelines for the kind of society we wish to inhabit. This is particularly true when it comes to a constitutional democracy. Thus, we are frequently enjoined to live the Constitution, to make its principles integral to how we conduct ourselves in our daily lives — even when nobody is looking.
I think we can all agree that we would indeed like to be presumed to be innocent when we are accused; and that we would like our fellow citizens to make up their minds about us only when they have heard our side of the story. We all recognise the innate fairness of this, even while recognising that these same principles can and do shield wrongdoers: living in Jacob Zuma’s South Africa is a daily object lesson in that.
It is extraordinary that someone who teaches constitutional law would not see how dangerous it is to limit the validity of these principles to the courts. They are, and should be, the cornerstones of how we live in society and privately as well. Even more worrying, De Vos goes further, strongly implying that it is highly likely that anyone who argues against forming an opinion about an accused person’s guilt based on the presumption of innocence is likely to be doing so with an ulterior motive.
His words are worth quoting in order to gain a sense of the extraordinary contortions needed to make his point:
“So, the next time you hear anyone say that person X is ‘innocent until proven guilty’ and that we are therefore not permitted to have an opinion about whether X did anything wrong, ask yourself whether the person would have said the same about Penny Sparrow. If he or she would not, you will have a pretty good indication that there is a self-serving motivation behind invoking a non-existent constitutional rule.”
For one thing, the Penny Sparrow case is hardly germane: Sparrow’s comments were made on a public platform and thus could be easily analysed. The point about a rape is that it generally takes place in secrecy, so the facts are what are in dispute.
The only thing he gets right is that one is indeed “permitted” to hold any opinion one likes; but surely the view that people are innocent until proven guilty is one that we should all support? This would mean exercising some restraint, and suspending public ventilation of one’s judgment in the interests of justice. This is not incompatible with lauding the courage of the accuser, providing her with emotional support and calling for the accused to respond to the accusation.
In any event, this sequence of public accusation and demand for a public refutation or confession greatly resembles a kind of privatised court process, a logical sequence of the do-it-yourself, customer or citizen focus the digital world enables. In this light, the need to make the fundamentals of justice integral to how society functions has never been more urgent.
We have already seen the pernicious effects of assumed guilt in the area of child abuse. Some guilty parties have been brought to book, but several blameless people have had their lives ruined by society’s — and authority’s — willingness to equate accusation with guilt. The same frightening dynamic is playing now out as the sexual offences complained of become more trivial.
All of this risks jeopardising the real gains that have been made, and may even make the original scandal of rape ultimately come to seem less pernicious. And, by abandoning these basic principles of justice, the justified crusade against a social evil is beginning to resemble a lynch mob. As we have seen in recent years, the Internet is a breeding ground for lynch mobs — the plague of cyber bullying is one example.
History teaches us that mobs always think they are on the side of right. Indeed, they are frequently brought into being by a genuine injustice, but inevitably become instruments of oppression and intolerance in their turn. We have seen that happen in this country, with the fight for Boer liberation (justifiable and supported by all right-thinking lefties at the time) mutating into apartheid, and the fight for black liberation mutating into what we all see before us now.
In both cases, the real wrongs that activists were seeking to right have now returned in new guises. One might argue that this corruption of good and even noble causes can be traced to the view that their importance justified the jettisoning of the fundamental tenets that underpin a just society. In short, the Machiavellian approach that the end justifies means seems to compromise the end, usually fatally.
When we accept that the presumption of innocence and the imperative to hear both sides are luxuries reserved for courts, we are a heartbeat away from Salem or East Germany. And because the law does not exist in a vacuum, these principles will ultimately also be eroded within the legal system.
The #metoo campaign began as a cry from the heart, a call for justice — we must not allow it to degenerate into something as bad as what it seeks to replace. To do that, we must find a way to balance the imperative for abusers to be held to account with the fundamentals of a just society.
Author: James van den Heever has degrees in English literature from Wits and Oxford, and in theology from St Augustine College. He edited numerous publications in the IT/business arena, incompetently acted as a media liaison for a now-defunct American corporate, and has worked as a freelance writer for many years, primarily covering the intersection between business and technology.