The courts need another option.

On Thursday, Ontario Justice William Horkins found former CBC host Jian Ghomeshi “not guilty” of five sexual-assault-related charges involving three different women. Legally, it was the right decision. But it isn’t the right conclusion. As Judge Horkins acknowledged, not guilty “is not the same as deciding in any positive way these events never happened.”

In our legal system, the crown must prove “beyond a reasonable doubt” someone committed a crime. Defendants don’t have to prove they’re innocent.

But sexual assaults are often he-said/she-said. If the defendant doesn’t testify, and if the assaults happened long ago, there is — the judge noted — “no tangible evidence.” The court has “only the sworn evidence of each complainant, standing on its own, to be measured against a very exacting standard of proof.”

That’s where the Ghomeshi case collapsed.

The defence reasonably honed in on “dramatic non-disclosures,” highlighting contradictions to the women’s court testimony.

One example: “L.R. was firm in her evidence… she chose never to have any further contact” with Ghomeshi. But the defence confronted her with after-the-act “flirtatious” emails, including one including a bikini photo of her. She then claimed the emails were part of a “plan” to confront him.

That might have been plausible if she’d disclosed it earlier. Inconsistency itself is not a fatal flaw, but failing to disclose shreds credibility. Her testimony, said the judge, revealed conduct “completely inconsistent” with her sworn testimony that “the mere thought of Jian Ghomeshi traumatized her.”

Who’s to blame: police and prosecutors for not insisting the women fully disclose, or the women for not disclosing? Defence lawyers confront prosecution witnesses with “inconsistent statements” in trials of every sort every day. Someone should have asked the right questions before the trial.

Instead of upending our entire criminal justice system — do we really want to eliminate the presumption of innocence, or tell the defence it can’t challenge the credibility of witnesses? — we should consider the Scottish option of a third verdict: “Not proven.” Twenty per cent of Scottish trials end that way. (See below.)

Such a verdict,” noted the Scotsman in an editorial, may be “unsatisfactory to both parties, the aggrieved finding the accused escape, the accused leaving the court without having had his name cleared. But this is often fair.”

It certainly would have been more fair in this case.

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Previous columns:

• Ghomeshi, Justice and the Court of Public Opinion
• Jian Ghomeshi, Gerald Regan and the court of public opinion
• 2014: The year the conversation changed
• Justin Trudeau, the allegations and the options

What is the not proven verdict? 

Here is a more complete explanation of the “not proven” verdict, from the BBC.

• Scotland, unlike most of the world’s legal systems, has three possible verdicts in criminal cases – guilty, not guilty and not proven
• The legal implications of a not proven verdict are the same as with a not guilty verdict: the accused is acquitted and is innocent in the eyes of the law
• Not proven is seen by some as offering additional protection to the accused
• But critics argue that it is confusing for juries and the public, can stigmatise an accused person and fail to provide closure for victims
• Scottish juries were historically able to return only proven or not proven verdicts
• A third verdict of not guilty was introduced in the 1700s and became more commonly used than not proven
• However, the option of returning a verdict of not proven was never removed
• In more recent years, the general perception has been that a “not proven” verdict suggests a sheriff or jury believes the accused is guilty, but does not have sufficient evidence to convict
• In 2013-14, the not proven verdict was used in 35% of acquittals following trials for rape or attempted rape
• This compares with a figure of 17% in the case of acquittals following trial generally (including trials without juries)
• Overall, only 1% of all criminal court outcomes during each of the five years 2008-09 to 2012-13 involved the case against the accused being found not proven