Do you remember where you were thirty years ago today? What you were doing? Can you prove it?

I’ve been thinking about our criminal justice system as I follow news coverage of a high-profile sexual assault trial. One of Canada’s top generals, the person in charge of the logistics of the COVID-19 vaccine rollout, is accused of sexual assault. Charges were laid in 2021, but the alleged incident took place in 1988.

How do you prove guilt or innocence for something that happened 34 years ago? I am making an assumption here that the assault did indeed take place. The victim says it did and that the general, at the time a fellow students, did it. 

The general says it must be a case of mistaken identity. Various witnesses seem a little hazy on the subject, what happened and what they knew at the time – not surprising for something that took place so long ago. Most of us have trouble remembering what we had for breakfast last week. 

If the general is convicted, his career is effectively over. If he is found not guilty, his career is also effectively over, as the trial will leave a stain on his reputation. “Not guilty” is not the same thing as being innocent.

The only way of saving his career would be if the accusation turns out to be a complete fabrication. That seems rather unlikely

Which has me wondering about the legal system. 

The identity of the complainant is protected by a publication ban. That is not uncommon in sexual assault cases, and is justifiable given that society still has a tendency to blame the victim.

But the name of the accused is out there for all to see, to be judged in the court of public opinion before the criminal court renders its verdict, or even hears testimony. I’m wondering if there is a better way.

The court process needs to be open and transparent. In a free and democratic society we expect nothing less. That is why those in the courtroom know the name of the person who made the complaint, and the names of the witnesses (also not public – I assume because identifying them could identify the victim). 

Would it make sense, in the interests of social justice, for the media to not identify those accused of crimes but only those convicted? Would such a provision be enforceable, given the unrestrained nature of social media?

A few years ago there was a high profile murder case where the name of one of the accused was subject to a publication ban because she was underage. Finding her name online took milliseconds. The court order would have been impossible to enforce in other jurisdictions and her name had been published for other reasons before the charges were laid.

As the current case unfolds, I will be reading with interest, wondering what can be done to better protect the rights of all those who interact with the legal system.

Any suggestions?