Presumption of guilt unshackles society’s bigotries

Presumption of guilt unshackles society’s bigotries. By Henry Ergas.

The presumption of innocence comes as naturally to human beings as playing the violin does to baboons.

Arthur Schopenhauer, the 19th-century German philosopher, may not have been the cheeriest of companions, but he had a point when he said that “there lies in every human breast a fund of hatred, anger, envy, rancour, and malice, accumulated like the venom in a serpent’s tooth, and waiting only for an opportunity to vent itself”.

And never does the venom vent more freely than when those we dislike stand accused of heinous misdeeds, confirming our prejudices and allowing hostility to morph into that most pleasurable of sensations, outrage.

That is why the great moralists have tirelessly, but unsuccessfully, warned against the rush to judgment, as in Saint Matthew’s admonition, “judge not, lest ye be judged”. And it is also why the presumption of innocence, despite its deep ethical foundations, proved so slow to establish itself as a binding principle and so fragile even once it was in place. …

Neither the term “the presumption of innocence” nor the concept played much role in English law, which Australia inherited, until the very end of the 18th century, and it was only in 1791 that the notion appeared in a recorded case at the Old Bailey. …

As late as 1840 — when fear of the “dangerous classes” was reaching new peaks — those cases, which had conviction rates of 80 per cent, could result in defendants being sentenced to hard labour merely for being a “reputed thief” who had been found at “any quay, wharf or warehouse” and could not prove that they did not “intend to commit felony”. …

Today’s mob is excited by sexual crimes:

Far from abating, that clamour has intensified in recent decades, notably as regards sexual offences …

To make matters worse, further risks have arisen as a “culture of victimhood” has elevated victims, real or imagined, into heroes who receive sympathy, status and a new sense of self-importance from “speaking out”. Championed by crusading issue entrepreneurs, they are transformed into celebrities, regardless of whether their allegations have been properly tested.

That encourages copycat allegations, fuelling the impression that there has been an epidemic of sexual abuse; and even more importantly, it strengthens the complainant’s investment in the claims, leading scholars to note that a complainant’s allegations tend to become less qualified and more extreme once the complainant becomes a “celebrity victim”, as if new-found fame had somehow eliminated the limitations of human memory.

With “victim-oriented” law enforcement turning public officials, such as police and prosecutors, from impartial investigators into advocates for complainants, those poorly founded allegations may then be put to juries who have been unduly influenced by a climate of opinion that precludes a fair trial, in a process starkly exemplified by the tragic injustices that have marred “recovered memory” cases. …

Lest you be judged:

Those who demonstrated should remember this: some day, they or their loved ones could be in the dock. And when they are, it is the presumption of innocence, and it alone, that may protect them from the lowest circle of hell.

It’s a classic issue: