Posting allegations of sexual assault and harassment online is not a new thing. That being said, it has now become commonplace for social media to act as a platform for alleged victims of sexual assault and harassment to make anonymous complaints. Advocates for these forums of discussion say that anonymous stories of sexual assault and harassment help to bring out the sheer quantity and nature of these incidents taking place in our community. At least part of the hope is that by allowing victims of sexual assault to tell their stories anonymously, the issue can be put on display and the broader community can take steps to address it. Supporters say that allowing victims of sexual assault or misconduct to remain anonymous encourages more to come forward. Some sexual assault survivors and advocates state that all victims (i.e., anonymous online posters) must be believed and that all men or women called out online must accept responsibility and change their ways. There appears to be little room for questioning the veracity of the allegations.  

Online allegations and posts may very well be an important tool for discussing social issues that harm our communities. Online discussion may help shed light on evils being perpetrated and may act as a catalyst for positive change. I do not think anyone can argue against a true survivor of sexual assault or harassment being able to tell their story on a forum such as Facebook or Instagram. To try to curb this, would serve no purpose whatsoever. Where an alleged victim posts online and identifies themselves, there are ways for the accused person to defend themselves if the complaint is false. There are civil remedies available to accused persons. It may also be possible for the accused person to gather information and evidence capable of disputing unfounded allegations and thereby clear their name.

The issue with anonymous complaints though, is that accused persons cannot defend themselves effectively. In many cases, all that can be put forth is a blanket denial. This is a problem where the presumption is to believe that all sexual assault allegations are true or that all anonymous posts are being made by true survivors with no room for misinterpretation of actions, lies, manipulation of facts and/or exaggeration. Our Criminal Justice System does not operate in this fashion.

Canada’s Criminal Justice System presumes an accused person to be innocent. There are no presumptions as to the veracity of an allegation. The standard upon which prosecutions proceed or not in Saskatchewan is whether it is in the public interest for charges to proceed and whether, based on the anticipated evidence at trial, there exists a reasonable likelihood of conviction. If the prosecution determines there is a reasonable likelihood of conviction, the full power of the state (including the prosecutions office, police service(s), experts, investigators, etc) will be utilized to put forward a case against an accused person. A true survivor will get the benefit of all of these tools to assist them, as well as society, in pursuit of the truth. If there were evidence showing a complaint to be false, or made up, a complainant may find themselves being the subject of criminal charges.   

At trial, before a finding of guilt is made, an accused person must be proven guilty beyond a reasonable doubt. The Crown bears the burden of establishing guilt beyond a reasonable doubt. The determination is evidence based. It is not based on ideologies or preconceived notions. Trials are held in open court where the accused person is entitled to know what the allegation against them is and who is making it. The accused person is entitled to cross-examine the complainant thereby bringing out any weaknesses or contradictions in the complainant’s testimony. The accused person is entitled to cross-examine and challenge the credibility and reliability of all witnesses leveling allegations against them. If they choose, the accused person may provide their own evidence to contradict allegations made against them. Only after all of the evidence (along with its weaknesses and strengths) is recorded and considered by a judge or jury, is then a determination of guilt made.

This is the system we use in Canada for determining criminal liability. It is not perfect, but it is the most fair, open, accountable and honourable system we know that balances the pursuit of the truth, with the rights of a person to be free from false allegations and smear campaigns. Imagine if all it took to incarcerate someone was an anonymous allegation of wrongdoing. In some ways, this appears to be the trend and threshold used by many in the court of public opinion. Does our criminal justice system fail to hold some people who have perpetrated sexual offences accountable? Yes, it does. Are individuals from time-to-time falsely accused, yet still convicted in our system? Yes, they are, but at least they are given a chance to confront their accuser, under oath and in front of an impartial trier of fact to decide if they are guilty beyond a reasonable doubt.

The presumption of innocence, the right to a fair trial and the ability to defend one’s self from allegations are rights that are in place for everyone’s benefit. As a community, we need to seriously consider whether we are prepared to ignore these principles with respect to anonymous online complaints.

The McDougall Gauley Defence Group regularly acts for individuals who are the subject of both online allegations of sexual assault and/or harassment as well as individuals charged criminally with sexual offences.

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