i dream of being possible

'innocent until proven guilty': notes for the peanut gallery

From what I understand, there are some people – in the apparent interest of seeming ‘reasonable’ and ‘neutral’ – who are insisting that in the Team Harpy legal case that our plaintif should be considered ‘innocent until proven guilty’. There are a few things wrong with this framing.1

##1) Criminal vs civil

“Innocent until proven guilty” is usually a guiding principle for criminal cases. Our case is a civil suit. Neither Lisa or me have claimed that our plaintif has committed or been convicted of committing any crime. He is not being charged with any criminal offence. Nor will the outcome of this civil suit result in him or anyone being charged with a criminal offence.

##2) Team Harpy are the defendants

Insofar as the ‘innocent until proven guilty’ principle applies to our case… I urge people to remember that Lisa and me are defendents. Thus, we are the ones who are on trial. If this principle applies to our situation then people should be considering us innocent until the courts decide on our innocence.

This is a defamation suit. This means that no one is constesting that Lisa and me said what we said. We said it. However, Mr. Murphy alleges that, by saying what we said, we:

have injured his personal and professional reputation, and have lowered him in the estimation of right-thinking members of society, generally, and, in particular, have caused him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, approbrium or disesteem. The defendants’ statements are clearly defamatory and impossible to justify. source

This? Isn’t true. But this is the central claim of the case. If you need to take on a ‘neutral’ stance of innocent until proven guilty, it is our innocence which must be assumed (because we are the ones being accused of wrongdoing).

##3) But the principle still doesn’t apply

Why? Because the way that this case is happening, especially since it is a civil matter, means that Lisa and me (Team Harpy) are, in actual fact, having to prove our innocence. Since the way you defend a charge of defamation is by establishing the truth of your claims.

This is why we have a call for witnesses.

I hope, though, that everyone realizes why this is such a terrible position to be in. This process of collecting witness statements in the ‘official’ legal way has the possibility of retraumatizing people who’ve experienced harassment or other painful incidents. I don’t want this. I’m so grateful for the people who’ve come forward to stand up with Team Harpy, but I so dearly wish that none of this was necessary.

But it is, because we have to ‘prove’ our innocence.

##4) Resist confusing legal and judicial frameworks for ethics or morality

Something that appears to have been lost in all the hubbub and discussion about this is the fact that I don’t believe in the ability of the judicial system to deliver any kind of justice in any meaningful way. Since the case is being done in Canada, we have a judicial system that disproportionately incarcerates our Indigenous peoples. It is filled with the same systemic and institutional oppression as any other part of our settler state.

The sadly ironic thing about this entire business is the fact that my original post is about restorative or transformative justice. Quick summary for those who hate clicking:

Transformative justice uses a systems approach, seeking to see problems, as not only the beginning of the crime but also the causes of crime, and tries to treat an offense as a transformative relational and educational opportunity for victims, offenders and all other members of the affected community. source

I am not at all behind the notions of ‘punitive’ justice as most often enacted by our current judicial system2. The ‘accountability’ I discuss in my post should not be understood as a desire to see certain people punished. If this is what you take away from it, you’ve missed the central point3.

But whatever. The point I’m really trying to make is to not confuse or conflate ethics with legal principles or the judicial system. Laws are one attempt at codifying ethical principals but they shouldn’t be seen as the same thing.

I hope this makes it clear for everyone. If you are trying to believe the innocence of someone in this case… you might want to do it for the actual defendents rather than the plaintif. I mean. Really.

  1. This post isn’t about me insisting that every must be Team Harpy’s side (even though I do believe this). It is about saying that if you are insisting on adopting a ‘wait and see’ attitude about the case out of a desire to appear rational and level-headed, you might want to rethink your conceptual framework. 

  2. See also “Retributive Justice” 

  3. Look at the last section of the post “Put victims first”, “Listen to victims”, “Believe victims”. This is what I want. Not the punishment of offenders. Especially not punishment that involves the legal/judicial system.