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Artillery Row

Guilt, innocence and suspicion

The presumption of innocence cannot only have a strict legal meaning

A lot of the arguments that have followed the horrendous accusations of rape and sexual assault against Russell Brand — all of which he denies — have surrounded the presumption of innocence. Brand has not been taken to court, some have argued, let alone found guilty, so we should behave as if he is innocent. 

Ah, say others, but the presumption of innocence is a legal matter. The police are required to behave as if he’s innocent — and, in other words, not to imprison him — but that doesn’t mean that private citizens can’t form their own judgements.

There’s something to that. You can’t necessarily express those judgements — you might get sued— but it would be nonsense to maintain that we should act as if anyone accused yet not convicted of crimes is innocent in every case. An extreme example: if your teenage child came home announcing that they had begun a romantic relationship with someone multiply accused of being a sex offender, would you have no problems? Don’t lie to me now.

Well, why have the accusers not gone to the police? In a better world they would. But I think it would be terribly unfair to assume that not going to the police makes accusers inherently illegitimate. Someone who has been assaulted may well be traumatised. Add to this that the police have a notorious propensity for ballsing up investigations (the case of Ian Watkins is an instructive example here). Accusers should go to the police but you can understand why they wouldn’t want to.

Still, I’m reminded of the most annoying response to people who defend free speech when people are excluded from private platforms: freedom of speech doesn’t mean freedom from consequences! 

But most of us understand that there has to be a limit to these “consequences”

Sure — it can be true. If you kept banging on about how tall male opinion columnists called Ben are arseholes I wouldn’t be denying you freedom of speech if I decided not to be your friend. But most of us understand that there has to be a limit to these “consequences”. If I protested against your right to make a livelihood, access private businesses, maintain a social life et cetera I could hardly maintain that I accept your right to free speech. 

There are two kinds of free speech: the formal legal kind (which, of course, is also heavily circumscribed) and the informal social kind. I think the same has to be true with the “presumption of innocence”.

We are not just talking about people’s private individual judgements, after all. Mr Brand has been dropped by his agents, his shows are being cancelled, and YouTube has said that he is blocked from making money on the platform

You can understand the potential reasoning. YouTube makes, and dispenses, money through its adverts. Having someone accused of rape and sexual assault making money off their platform could be bad for business. Yet when the chair of the Culture, Media and Sport Committee is allegedly sending letters to media platforms trying to talk them into demonetising Brand — as claimed by Rumble, a sort of younger, rowdier cousin of YouTube — we might not be talking about cold business decisions but state power bypassing the legal process to pursue the sanctioning of people who have never been convicted. If that doesn’t smell off to you then your odour receptors might have been fried.

There has to be a limit here. To what extent do people accused of crimes enjoy the presumption of innocence if they can’t make a living? (Sure, Brand is probably rich enough that he could live for four lifetimes without bothering to work again. But it seems unprincipled to suggest that your treatment, in a moral matter, should hinge on your personal wealth.)

Perhaps the police will pull us out of this ethical ditch by launching an investigation. Brand could also attempt to clear his name with a libel case. If he is innocent I hope he will. After all, this is not — as some people have suggested — only an example of “she said, he said”. It is at least claimed that there is material evidence (texted admissions of guilt, though non-specific, and medical records from a rape crisis centre). There is, in other words, a lot to be analysed rather than just assertions to be flung back and forth. 

But how should we behave in lieu of legal proceedings? This feels dreadful to say as an opinion columnist — the general attitude of our kind being one of Godlike confidence — but I’m not entirely sure. I only know we have to draw a line somewhere and it cannot be in front of a prison’s gates. Perhaps the most eccentric anti-Brand intervention came from former Secretary of State for Digital, Culture, Media and Sport Nadine Dorries, who attacked Brand’s wife for standing by him. If even your marriage is expected to collapse, what exactly does the presumption of innocence offer you except the freedom to open a door?

Yes, a lot of the people who are banging on about the presumption of innocence have in fact assumed that Brand is innocent — the sort of people whose admiration for his vaccine-bashing, Bill Gates-trashing shtick have led them to call him a hero and announce their support. I don’t have time for that (which, granted, is easy to say when I always thought he was an oleaginous aspiring cult leader).

Yet to maintain the presumption of innocence to the extent that you won’t actively call someone guilty but will behave in every sense as if they are guilty seems like cowardice. When you delete someone’s entire back catalogue — to erase any sign of their existence — you’re not expressing a private suspicion. You’re making a very public statement about them as a human being. To pretend that you have any doubts, in such circumstances, is like pretending to be an agnostic as you do a line of coke off the Bible.

One hopes that some form of official investigation will begin soon, that the truth will prevail, and that justice will triumph.

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