Due Process In The Age Of #MeToo And Social Media
Another career has quite publicly imploded, right here in Ontario as reverberations of the #metoo momentum hurtle through our province. Patrick Brown, who until news broke, was the leader of the provincial Progressive Conservative Party of Ontario, reluctantly resigned his post amidst sexual misconduct allegations.
Mr. Brown joins a succession of celebrities and politicians in North America who have seen their careers end very recently as a result of improper sexual misconduct allegations, some ranging to several years back, such as in Patrick Brown’s case to the time he was a 22 year old politician in Barrie. Other very recent Canadian examples include Federal Liberal Minister of Sports and Disability, Kent Hehr, and Nova Scotia Progressive Conservative Leader Jamie Baillie, just to name a few.
There is no doubt that the #metoo movement has given a new voice to victims of sexual violence and sparked a progressive rights revolution that we should all be proud of. Many such victims of harassment, assault and rape have been treated abominably by a traditional legal justice system that has repeatedly failed them, by their fellow citizens who have repeatedly ignored their cries, and have not seen justice. The empowerment that social media has provided to such victims allowing them to impose immediate consequences on these predators is overwhelming, and in many cases, long overdue. We must continue to applaud the courage involved in coming forward, and serve as role models for those even more vulnerable to also speak loudly in the face of such victimization.
The pattern we witness with so many of the accused perpetrators is online and print media breathlessly announce every new alleged transgression, and the public quickly passes judgment, and demands retribution. Corporations and political parties then respond to the demands in order to protect their brand by immediately distancing themselves from the accused.
But what we see happening now with Patrick Brown and even Aziz Ansari – is a blur in the fine lines between awkward courting behaviour and sexual misconduct. One must ask – in a society that is built on fundamental principles of fairness and justice – is the social impact on these peoples lives fair in these circumstances? Are these victims of a new kind – of the #metoo movement?
The law does provide a remedy to this question. Although the justice system isn’t perfect, there are core values that promote fairness which form the bedrock of a healthy democracy – such as the right to due process.
What is due process, and why is it important? While many people might believe that our traditions of freedom and democracy rest upon our right to vote for candidates every few years, the real bedrock of freedom is the fundamental right to due process. The right to face one’s accusers and require them to prove their allegations before any consequence is imposed and to be given an opportunity to provide a full answer and defence are cornerstones to a fair trial. We see this clearly in criminal law, where the state must prove their case “beyond a reasonable doubt”. Where arbitrary detention is prohibited. The right to counsel is fundamental, as is the right to disclosure of the case against you. These fundamental rights form part of a long tradition in our society and country premised on the underlying assumption that mob justice is wrong.
Due process is important in other contexts as well. Whether involving employment, or family law issues, or health issues, or property rights – the extent of the protection may not be the same as for persons accused of crimes, but we do recognize rules of “natural justice” that should protect us from arbitrary loss of things that are so important to us. In personal injury cases – defendants have a similar right to require the Plaintiff to prove their damages on a balance of probabilities and a right to hold Plaintiff’s to that obligation as a matter of justice.
Defendants in personal injury cases, just like defendants facing sexual misconduct allegations are allowed to cast doubt on the allegations made, and can attempt to establish that the Plaintiff’s injuries are not attributable to the accident which would make the Defendant liable, or as severe as the Plaintiff claims. In sexual violence cases – that the victim now claiming to be raped, was actually engaged in consensual relations at the time. While we might all be outraged at a system that gives such rights to the accused and serves to “revictimize” or “blame” the victim, the system is created that way to ensure that the liberties, freedoms and rights we as a society hold so dearly and believe so firmly should be afforded to all, aren’t arbitrarily or improperly taken away from the accused.
Due process is the corrective to “mob justice” – where mere allegations can motivate groups of people to rise in fury and demand or hand out consequences to the person accused. In the age of social media – and its ability to instantaneously virtually connect large groups of people – it has become very easy to target and attack individuals – and result in consequences before any kind of “due process” has a chance to take place.
We hear today how most people get their news online, through Facebook and Twitter – often unfiltered, or unsubstantiated, and sometimes “fake”. It has become all too easy to widely disseminate lies about others while making allegations anonymously, has have been made against Patrick Brown, or in a tweet from a cell phone, computer keyboard, or tablet, and precipitate serious consequences, as happened with Kent Hehr.
If our judicial system and fundamental traditions of democracy and freedom should have taught us anything – it is to reserve judgement until after truth-seeking. Allegations unless proven otherwise are just that – allegations. In law, an allegation is so because it can have one of two possible outcomes – it can be found to be true or it can be found to be false. Proverbial heads shouldn’t be rolling unless allegations are properly investigated and founded. False allegations should have some consequences for the accuser, and when well founded – true allegations should have consequences for the accused. We lose a fundamental aspect of fairness in society when consequences flow before allegations are at least in some way tested or proven. The Judicial System may not be the perfect answer to mob justice, but it’s the best answer we have right now – and in today’s world of the social media collective – it may be more important than ever.
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