Reasonable Doubt: Everyone deserves a fair trial, even in the Delhi gang rape case
“No freeman shall be imprisoned, or deseized, or outlawed or banished, or anyways destroyed; nor will we pass upon him, or commit him to prison, unless by judgment of his peers or by the law of the land.”
- Magna Carta (1215)
“The most innocent man, pressed by the awful solemnities of public accusation and trial, many be incapable of supporting his own cause. He may be utterly unfit to cross-examine the witnesses against him, to point out the contradictions or defects of their testimony. And to counteract it by properly introducing it and applying his own.”
- William Rawle (1825)
A pair of lofty quotes, frequently disregarded the more heinous the crime or the background of the accused. Each is probably because of two things: (1) the inherent, primal (and sadly, human) desire that someone suffer in response to the suffering of another; and (2) the person has a deep criminal background, so he or she is obviously guilty of the present accusation.
I am going to try to tackle a controversial issue today. Not Lance Armstrong—true controversy.
The unfathomably abhorrent sexual assault that took occurred on a bus in Delhi on December 16, 2012, has been a catalyst for global reaction. Women and progressive men have condemned the culture that apparently tolerates or condones sexual assault to an unacceptable and uncivilized extent. Troglodytes have blamed the victim. One, an Indonesian judge, even said that victims get some degree of pleasure from being raped.
I am not going to address the various reactions, the accused, or the victims.
I am going to address the Indian government’s reaction, which I respectfully believe risks paralleling the Patriot Act or the invasion of Iraq following the World Trade Center attacks, albeit to a lesser extent. Worse, even, police are reported to have tried to beat confessions out of the accused.
In response to the controversy created by a single incident (in a country where 25,000 women are estimated to have been raped in 2011), the Indian government created a closed-doors, “fast track” court, inaugurated on January 2, 2013. This, in itself is not a problem. India has set up thousands of ad hoc fast track courts in the past decade.
As of January 16, it has already sentenced one person to hang for a different sexual assault.
Swift justice. I agree that trials for everyone in Canada take far too long to schedule. Today, except for very short cases (one to three days), it is quite common to wait a year or more for a trial.
However, in the fray of demand for punishment, we should not forget the most fundamental notion underlying our courts: each side gets a fair shot to prove their case or defend the other’s. And, in the criminal context, the right to be presumed innocent.
This will not be a simple case. Witnesses will need to put the accused on the bus and prove what each of them did. In India, where forgeries are all too common and there are 1.3 billion people, the identities of the accused may be hotly contested, and rightly so. It was dark, parties may have been intoxicated, and there will be many people looking for a scapegoat (would you trust the testimony of one accused against another when their lives are on the line?). Sadly, also, the male survivor and key witness may not be in a position, by virtue of head injuries, to accurately remember what happened.
The accused’s ability to get a fair trial given the international demand for blood will also be near impossible.
Remember, in a country with a notorious corruption of public officials (India ranked 94th out of 174 countries in Transparency International’s 2012 Corruption Perceptions Index), there should be serious questions surrounding the propriety of the police investigation, particularly since it seems the police may have been brutally negligent as the bus passed through police checkpoints. They will want to say that they got their guy to avoid further embarrassment.
The Indian government, embarrassed at international scrutiny, will almost certainly provide limitless resources to a Cadillac prosecution team. The accused, one of which reportedly sells fruit in a stand, may not have sufficient resources to mount a defence. One lawyer who has appeared pro bono seems to be, by his own public statements, grossly inept.
And, let us not forget that it is expected the trial will be behind closed doors, free from the public scrutiny that ultimately makes our public institutions accountable to those who pay for them.
In other words, for there to be a fair trial in this case, the court system must be transparent and give the accused adequate time to prepare the defence of what will be a complex case. They also need to be well-enough resourced to do so, even if that means giving them public money. The stakes are high as the death penalty will likely be sought.
If we want to condone the legalized killing of five humans, society owes them the courtesy of giving them a fair chance to defend themselves.
Indians, and the rest of the world, should take a step back and be concerned about what might happen if we rush to judgment. Nobody would say that five people should be hanged at the neck until dead without good reason. If it is important enough to prosecute, then it is important enough to make sure the job gets done right.