TWO phrases — “innocent until proved guilty” and “trial by media” — have been used frequently in discussion about allegations of sexual assault against the chair of the Aboriginal and Torres Strait Islander Commission, Geoff Clark.
Unfortunately, the phrases have distorted rather than to clarified.
At the outset, I should make clear that I am making no judgment about the veracity of the allegations. Readers should look at and the original article in the Age, Melbourne, last Saturday and make their own judgment. Rather, I make general comment.
One way to clarify the questions is to look at the way the burden of proof applies. The phrase “innocent until proved guilty” should apply only to the criminal law. The presumption of innocence puts a high burden on those who seek a criminal conviction. They have to unprove your innocence by convincing a judge, magistrate or jury beyond reasonable doubt that you are guilty. Upon that proof you are convicted and face a penalty, including imprisonment. Conviction and imprisonment are dire consequences and therefore require this very heavy burden of proof before they are imposed.
The presumption of innocence, the high burden of proof and the dire consequences are intimately related. But often the consequences of certain conduct are not conviction and imprisonment, but something lesser, like not obtaining or retaining a job or not being elected or re-elected to public office, or being not chosen to serve on a committee of a charitable or community group. In these circumstances, a lesser requirement of proof is enough for the person to suffer the consequences of not getting or retaining the job or not being elected or chosen to serve.
The distinction may seem obvious, but it has been lost by many people commenting on the Clark case. Prime Minister John Howard and Opposition Leader Kim Beazley have said that the police and the courts are the place to determine these questions and until they do the presumption of innocence applies. However, if all our judgments about people have to be based on the criminal burden of proof we would all go around assuming that 98 percent of our fellow human beings are saints. Satisfying the criminal burden of proof is very difficult indeed. And so it should be given at the consequences of that follow.
In at the case of sexual assault is particularly difficult.
However, in cases the such as this one, in which allegations have been made against a public figure, there is another burden of proof and lesser consequences than conviction and fine or imprisonment.
In the case of serving on a charitable committee, merest suspicion of misconduct – even based on hearsay – might be enough for someone to be asked to go. They might well be innocent of the misconduct. Certainly as far as the criminal law is concerned they should be presumed innocent.
In other areas of law and human conduct, we use a lesser burden of proof because the consequences are much lower — usually the transfer of money.
As we saw with the allegations made against employment minister Tony Abbott and treasurer Peter Costello, it is possible for anyone who has had allegations made about them to sue for defamation. Also, it is possible for people who assert that they have been assaulted to sue for damages. In both these sorts of cases the burden is what is called the balance of probability – – that is, is it more likely to have happened than not.
A good illustration of this is the case two decades ago of a woman in the ACT who was acquitted of the arson of her own house. The jury was not convinced beyond a reasonable doubt that she did it. Later, the insurance company refused to pay. The woman sued and lost, they judge holding that it was more likely than not that she burnt her own house down in order to collect on the insurance.
In at the Clark case, he could sue for defamation but all the women who have accused him to sue for assault. There are disadvantages of costs, but there would be a trial after which there might be consequences less serious than a conviction but serious enough — an award of damages. In such a trial the concept of presumption of innocence would be irrelevant.
And as already has happened, statements have been put into the public domain via the media. It is a trial of sorts. The consequences are less serious still – a change of public opinion that might lead to loss of elected office, depending on the relative credibility of what is published and the detail and nature of the denial. But again in the absence of a criminal trial the concept of presumption of innocence is irrelevant.