(Image: AAP/Mick Tsikas)

I read this on the website of a leading criminal defence law firm, discussing a recent case:

The law makes clear a person is presumed to be innocent until and unless proven to be guilty in a court of law, which means Mr [X] is an innocent man in the eyes of the law.

You can guess who they were talking about, but I’m disinclined to give him even more publicity. What I’m interested in is the idea, which has become a matter of holy writ for some, that the law mandates a strict binary: guilt established beyond reasonable doubt, otherwise innocence for all purposes.

That’s not quite right, and the distinction is important.

The so-called “golden thread” of English criminal law is that “it is the duty of the prosecution to prove the prisoner’s guilt”. This idea goes back to Roman law, with a natty Latin maxim that translates as “proof lies on him who asserts, not on him who denies”. It is enshrined in modern international law, with both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights affirming its status as a basic human right. In Australian criminal law, it is unquestioned (although sometimes abrogated by legislation that reverses the onus of proof for certain crimes).

But that’s the point: the principle is a creature of the criminal law, and its operation is confined to the realm of that branch of the law. It comes from the proposition that no innocent person should ever be at risk of criminal punishment, which is why the system is designed to make it so hard to secure a conviction. That marginal space of criminal conviction is a sliver of reality.

A clue can be found in the content of criminal verdicts: guilty or not guilty are the only options. Not guilty does not mean innocent, although it’s easy to misunderstand the presumption as a positive declaration. They are different things. Nobody is declared innocent by the law.

More importantly, it does not follow from the fact of non-conviction that the person accused did not do what they were accused of doing. It doesn’t mean that they can’t be held liable for it in a civil suit (which is determined on a different standard of proof), nor that they will necessarily succeed in a defamation claim against someone who has made the accusation publicly.

To explore that last point a bit further: say a person has accused another person of sexually assaulting them, and that has not resulted in the second person being convicted by a criminal court. This could be for many reasons — the complainant didn’t make a police report, the police didn’t lay charges, the prosecution no-billed the case, there was a mistrial, or the accused was acquitted at trial. So far as the criminal law is concerned in any of those scenarios, the presumption of innocence stands.

However, the complainant still believes the truth of her complaint, and she has rights too. One of these is to pursue her complaint by other means, such as a civil suit or public disclosure. If she takes the second course, she will risk being sued for defamation, because an allegation of sexual violence is per se defamatory. She may or may not have a good defence, most likely the defence of truth. That defence may succeed.

In that situation, the law will have vindicated the accuser, completely absent of a criminal conviction. It would be nonsensical to assert that the accused is entitled to a presumption of innocence for all purposes, when this is a result that the legal system itself could deliver without any injustice.

The freedom to hold and express one’s own opinion regarding an allegation is not confined to the complainant either; everyone, in fact and law, is entitled to these freedoms. It is lawful to form one’s own judgment. It may be legally dangerous to express it, because the law that protects reputation could have something to say about that. At the outer margins, there is such a thing as criminal defamation, and other legal constraints that impinge on the freedom.

There are also moral constraints. The presumption of innocence is the legal expression of an aspect of our social contract, and we share responsibility for maintaining civil society by not being reckless with the accusations we level against each other. We would be wise not to treat this lightly, because if you want to see what you get when a society combines entrenched free speech rights and a loss of attachment to the value of truth, look to America today.

All that distinction-drawing really adds up to a simple proposition: we live in a society that tolerates epidemic levels of non-consensual sexual acts. In reality, a vanishingly small proportion of these acts lead to criminal conviction (well under 1%). That leaves the vast majority of such acts consequence-free, so far as criminal law is concerned.

It simply defies logic to declare everyone in that greater mass to be factually innocent. More importantly, the law doesn’t dictate that anyway. Survivors remain free to tell their perpetrators exactly what they can do with their self-declarations of innocence. It’s messy, but so is the truth.