The problem with “He said, she said” is that it isn’t fair. In our criminal justice system, we always have the presumption of innocence. That’s fine and good, but when there are no witnesses and there is no evidence, there can be no guilty verdict. Many people, mostly women, have been on the losing end of this legal conundrum and it is a flaw in the system.
In addition to the “innocent until proven guilty” standard, we have the “beyond a reasonable doubt” standard. Combined, these legal benchmarks make it almost impossible for victims of sexual assault to find justice. As a consequence, the perpetrators in these cases go free and the victims often get angry. They may also ultimately suffer from a lifetime of stress, guilt, fear, and trauma.
For a moment, let’s view the legal system as an arbiter which acts in some ways like a parent. When two children have fought and damaged something and they are both claiming the other started it or that the other did the damage, many parents will solve the problem by punishing them both equally. It may not be the perfect solution, but without evidence it’s the best they can do. In such cases, parents can send both children to their rooms or take away screen time or apply whatever punishment seems appropriate. The bad deed has to be recognized.
Our legal system, though, cannot punish both the victim and the accused, so it treats sexual assault in the same way as a parent who throws their hands in the air and gives up on figuring out what to do. They say, “Well, we don’t know who is telling the truth so we’ll just have to act like this never happened.” The damage is still done, but no one is punished, and no one accepts responsibility. Any parent will tell you this is a bad idea.
One alternative is to sit down with both parties and have them talk through what happened. When parents do this, it becomes apparent where the responsibility lies. More than that, though, the children have to face up to what they have done. They may even feel regret and guilt, and they may seek forgiveness.
Civil courts can do this. They can bring the two parties together in the same room and spend more time discussing what happened. They can also make a judgement based on the balance of probabilities. This creates a situation that is more likely to result in a satisfactory outcome for victims than a criminal trial.
I read in The Guardian about Miss M., a woman in Scotland who had been sexually assaulted and who took her case to civil court after having been disappointed by the criminal justice system. Ultimately she was believed and was awarded damages. I was impressed by what she said when it was all over: “The civil process has allowed me to understand what happened for parts of that evening; I didn’t know everything that had happened. It’s only going through the civil process that I have had the answers and provided me the opportunity to have proper help now.”
When I read her story and about the healing effect provided by the civil court process, I was reminded of the restorative justice programs that are now making a difference in the lives of many Canadians. These programs are within the criminal justice system and, like the civil court process Miss M. experienced, they allow for meaningful engagement and accountability. They also open the door to healing and reparation.
Given the shortcomings of many sexual assault trials and the consequent rage of victims, we should look elsewhere for justice in these cases. The non-adversarial processes now available make it likely that more victims will feel inclined to come forward, and more abusers will become aware of the effects of their actions.