We’re looking at what it takes to get a verdict of guilty or not guilty and what it means.
We’re looking at what it takes to get a verdict of guilty or not guilty and what it means.
1:00 - The numbers: 2 guilty verdicts out of 1,000 assaults
1:25 - Guilty vs not guilty: what the terms mean
1:42 - Beyond all reasonable doubt
4:03 - Narratives that can be created around facts
6:04 - What is considered evidence?
7:32 - Why do prosecutors drop cases?
9:04 - The odds of winning sexual assault cases
10:48 - Jury bias, victim performance, trauma from trial
13:27 - Speedy trial law and stayed charges
16:35 - When the legal outcome doesn't match evidence of harm
All sources, statistics, multimedia clips, and music credits are available on Substack.
Disclaimer: This podcast explores sexual violence and the court process surrounding it. Please listen with this in mind, and be kind to yourself. We have resources in the show notes.
Jane Aster Roe: This podcast explores sexual violence and the court process surrounding it. Please listen with this in mind, and be kind to yourself. We have resources in the show notes.
Reporter 1: An Anne Arundel County teacher accused of sexual abuse and Matthew Schlagel found not guilty on 18 counts.
Reporter 2: This verdict came as an absolute shock to the parents of the students that were in the courtroom today. Many of them visibly upset, crying.
News Anchor: The burden is on the commonwealth to prove beyond a reasonable doubt. Beyond a reasonable doubt is the highest standard in our system of justice.
Reporter: On this day of judgment, shortly after he arrived in court, Jian Gomeshi found his vindication: a full acquittal based on the shattered credibility of the women who testified against him.
Jane Aster Roe: Let's say 1,000 sexual assaults happen. 60 victims will report. 940 will not. 20 reports will lead to criminal charges. 4 charges make it to trial. 16 will be dropped by prosecutors. 2 trials will result in a guilty verdict. 1,000 assaults. 2 guilty verdicts.
The commonly understood end of a criminal case is a guilty or not guilty verdict. But Guilty or Not Guilty are very specific terms born out of the legal system. You'll notice it isn't Guilty or Innocent. It's Guilty or Not Guilty.
The standard of proof required for a criminal case to be found guilty is beyond all reasonable doubt. Many refer to this as 99.9% certain. That means, to achieve Not Guilty, what the defense has to do is cast reasonable doubt that the crime occurred. They're not always necessarily arguing that the crime didn't happen. They're casting doubt.
Let's look at it this way.
An older sister hits her younger sister who screams out to Mom. Mom comes running in and older sister says no she didn't hit her, younger sister is just crying because she stepped on lego. Mom doesn't believe the older sister, and doles out consequences.
In criminal court, the defense would argue that there isn't a witness to younger sister being hit, so it's only her word against her sister's word. Also, younger sister has a history of stepping on legos and crying just like this, so isn't it possible that in this case, she is also crying because of stepping on lego? And hey, younger sister has lied before. Just last week she lied about stealing a cookie. So how can we be sure she's not lying now? Probable doubt is achieved. Older sister is declared not guilty.
Are you thinking like a lawyer yet? And are you factoring in all the biases that get tangled up in all that mess?
My name is Jane Aster Roe. You're listening to The Defendants, an exploration of justice for victims of sexual violence. We want to know what has to change within the system for it to actually work, and we are interrogating what justice means in the aftermath of trauma. This is Episode 4: Not Guilty. We're looking at what it takes to get a verdict of Guilty or Not Guilty and what it means.
Do you remember playing opposite day as a kid? This might jog your memory.
Dawson: It's opposite day. Down is up and left is right.
Lindsey: No it's not. I hate that.
Dawson: So it is and you love it.
Lindsey: It's not. And you're stupid.
Dawson: It is and I'm smart!
Lindsey: Shut up!
Dawson: Talk more? Okay! Talky talk talk talk.
Jane Aster Roe: Welcome to the mental gymnastics that you're asked to understand when it comes to the world of legal truth. It's not that everything is opposite, it's that when you enter the legal system for the first time, what you think should make sense, often has a completely new meaning. Within the world of law, the information presented can feel more like creative storytelling. It's about perspective and opinion and whoever plays the game best wins.
Like if a fact presented is that a victim was drinking. The defense may argue this makes them an unreliable witness, and the prosecution may argue this made them even more vulnerable. The same fact argued in different ways. It's less about what people actually might believe, and more about the narratives that can be created around the facts of the case. And everyone's pulling from a playbook of past related cases and how they've been argued.
Getting to a Guilty Verdict is a long path and, as I said in our first episode, the legal system is not set up for these types of cases. I'm going to walk you through the things that have to happen in order for a guilty verdict to follow. Brace yourselves. It's a lot.
Let's say a pretend person named Alex is trying to go through the system.
First, Alex needs to feel safe and comfortable enough to report to the police. Which often doesn't happen for so many reasons. Guilt, shame, and there's not a lot of faith in the system. It's estimated that only 6% of sexual assaults in Canada are reported to police.
Let's say Alex does report. Now the police have to take her story seriously. And there are studies, like the one we'll link in the show notes from the University of Toronto, that show that police sometimes fail to do a sufficient investigation after a victim comes forward, despite it being their duty to investigate.
If the police do investigate Alex's story properly, they need to make a decision of whether to charge the alleged perpetrator. They do that based on evaluating the evidence.
In the law, evidence can be things like physical evidence, which is like injuries, recordings, photographs and text messages, or not physical, like your word. You saying that a crime happened to you is evidence. Even if you don't have anything other than your story, sometimes that's enough for police to make an arrest.
If the police decide Alex's case warrants an arrest, the case will get officially handed off to the government. These are the Crown Prosecutors in Canada and the State and Federal Prosecutors in the US. They then need to decide whether to proceed with the prosecution.
Now bail conditions are set for Alex's alleged perpetrator. In Canada people have the right to bail with no monetary obligation, barring extreme circumstance. Bail conditions are set based off the severity of the crime and risk assessments. Risk assessments are twofold: the risk of having the individual be in the community and the risk that they won't show up to court. Victims do not get a lot of say in this. But if you're worried for your safety, the best thing you can do is tell the detective in charge of your case, so they can take your safety into consideration when they make their recommendations around bail conditions.
Now Alex has to wait. The prosecutor and the defense both have to build their cases. There are several opportunities during this period where the defense might speak with the Prosecutor assigned to the case and argue for the case to be dropped. Government prosecutors have sole authority over which cases they do or do not drop. Explaining to you all the reasons why they choose to drop cases is an episode in and of itself. I'll summarize by saying they're told to drop cases they don't think they'll win. This is where Alex's case is most likely to die. Because yes, your word is evidence, but it's evidence that the defense can pull apart in court. Attorneys can look at most evidence in these cases and argue consent.
In 2022/2023 out of 5,541 sexual assault cases brought to Canadian prosecutors, 623 resulted in guilty verdicts, including guilty pleas. 413 resulted in not guilty verdicts. And 4,437 were stayed or withdrawn. That's 80.07% of cases.
Let's say Alex's case does make it to trial. This would involve either just a judge or a judge and a jury. Either way, it has to stand up to a high burden of proof. Again, the standard is referred to as beyond a reasonable doubt. The defense's job is just to cast doubt, by providing an alternative explanation or a challenge to the lack of evidence or the type of evidence presented by the prosecution.
Whew. If you're feeling overwhelmed, you're not alone. My Executive Producer and I were overwhelmed when trying to write this. It's a lot. The law is complicated. It's hard to sum up.
Here's defense attorney Mike Kruse, a lawyer who's experienced in defending individuals accused of sexual assault and misconduct, talking about the odds of winning these cases.
Mike Kruse: I will say this on any He Said, She Said case. You basically start out with at least a 50% chance of winning. There's no question those odds can go up considerably in the hands of a skilled, experienced criminal lawyer who understands how to cross examine properly and present a case properly and prepare a client to testify. We can often win these cases.
Jane Aster Roe: Here, he goes into a little more detail on how defense lawyers create reasonable doubt.
Mike Kruse: You're trying to create improbabilities, inconsistency between what she says or he said at the trial versus what they said in their statement, to convince the judge or jury that there's reasonable doubt. We have a great track record of winning these cases. And I can tell you any good criminal lawyer in the province is going to say the same thing, that the odds are generally fairly good of winning these type of cases.
Jane Aster Roe: To me his most striking statement is this.
Mike Kruse: Unfortunately in our criminal justice system, I can say this and it'll sound sad, but it's the truth. Winning in court has very little to do with who's telling the truth.
Jane Aster Roe: Hopefully now, you can see why statistically it would be so hard for our hypothetical victim Alex, to go through the system and find justice within it.
Voice Actor 1: At the end of the day, because I was drunk, I was wearing a short dress; they're going to assume that's what she wanted. You pick a jury of 15 people, the likelihood of the majority of them having deeply entrenched patriarchal views or rape myths in their minds. They expect the victims to remember years after what had happened to them in such great detail. How are you going to remember every single little detail about something traumatic that has happened to you? He was found not guilty. So now I'm like, well if something happens again, there's no way I'm going to be able to report it again. They're going to laugh at me.
Voice Actor 2: In terms of a sexual violence trial, it felt like we had a solid case. But then if you cry too much, you're hysterical. If you don't cry, you're unemotional and manipulative. It's demoralising. The thing that was most hurtful was my kindness was used against me in a way that made it seem as though I either deserved what happened to me or it was actually consensual. I was seeking accountability. I was hoping for recognition of the crime that had been committed against me. But no, my experience was not taken seriously and the outcome did not reflect the severity of the crime or the crime even taking place at all. The not guilty verdict in my case made no sense to me. The betrayal that I felt... I can only describe it as, and I know a lot of people say this, the second rape. It felt re-traumatising to the point where the trial process was significantly more traumatic than the actual rape.
Jane Aster Roe: Those clips were from an article published by The Guardian in February 2025. The article is called "3 Women Speak: the trauma, humiliation and shame of being a victim-survivor in the court system." We had actors read the words of Amanda and Amira recounting their stories.
The day my case went to judgement and got a not guilty verdict I felt like I had been flipped inside out. I didn't even want to do this in the first place. So what had been the entire freaking point then? Why, I wondered, had I emptied out everything to a court room of strangers, allowed a defense attorney to poke and prod every little part of me, if they were just going to say it wasn't enough?
The police detective was very upset on the phone to me. 99% of my cases don't go through, she said. You were supposed to be my 1. I didn't really know what to say to her. I didn't know what to say at all. I sort of thought maybe I didn't want to say anything ever again.
And it's not just a Not Guilty Verdict that brings these feelings. Statistically, most charges are withdrawn or stayed, never progressing to trial.
Cait Alexander was attacked on camera by her ex-boyfriend and nearly died. Prosecutors brought eight charges against him. Five provincially and three federally. But in both cases, the charges were stayed.
Staying is when charges are permanently dismissed because it took the system too long to prosecute. They're not guilty. They're not innocent. It's just like it never happened. This can be invoked by the defence's team, after the deadline to prosecute has passed, or a prosecutor can use the speedy trial law to stay a case before the deadline if they think they won't be able to prosecute it in time.
Cait Alexander: We missed the deadline for the provincial charges by 10 to 14 days. And they tossed it. So the accused is not found guilty or innocent, the charges are not dropped. There's no admittance of any type of guilt. But the charges disappear into purgatory and live there. And in the eyes of the law, this person is a non criminal because they were never officially found guilty.
Jane Aster Roe: Constitutionally, Americans and Canadians have the right to a speedy trial. In general, I think this is a good thing. It means those who have been accused of crimes are not forced to spend an undue amount of time, potentially behind bars, waiting for the opportunity to prove their innocence. And in a system that is punitive towards marginalized individuals, this time obligation matters. But two things can be true at the same time. It's also true that prosecutors only have so much time to prosecute all their cases, and they get to choose which cases are prioritized based on which cases they believe they will win. As we've said, sexual assault cases are hard to prove, and the speedy trial law gives a good excuse to toss them.
Cait Alexander: I cannot still articulate other than the word gutting, abhorrent, evil, a continuation of evil, what that type of experience is like. To have the people in the justice system, who are supposed to support you and supposed to be on the state side and be on your side and argue for you, completely royally mess up everything and abandon you in that. Until you try to get over it and move on. And it's wrong. And they did. They did it to me twice. The weird one about those federal charges is we are still 12 months away from the deadline.
Jane Aster Roe: Cait felt completely abandoned by the people who told her they were fighting for her justice. Not just once, but twice. And as she said, the second time it happened, they were still 12 months away from the deadline to take the case to trial, and they decided to invoke the speedy trial law and stay it anyway. This kind of thing happens all the time.
At the top of our episode I broke it down to 2 in 1,000. 2 in 1,000 cases are getting justice.
Marsha Letterman wrote this article where she said that in sex crimes trials the legal outcome doesn't always match the evidence of ugly behaviour. Low conviction rates and reporting rates might give people the underlying impression that sexual assault is rare. It's not.
Clearly something needs to change. We need to find a way to force accountability onto the people who commit unspeakable acts of horror. It's hard to know the true number of sexual assaults that happen because the system makes it so discouraging to report and we know people don't. But as it stands, if every single person who did have an experience reported, we wouldn't have even close to the amount of resources needed, and the system would be overwhelmed. I don't have an easy answer. I wish I did. What I will say is that I really do think information is power. And by informing ourselves of how this works, or really, how it doesn't work, we can start to imagine a better justice system.
Whether charges were dropped, stayed or a person was found not guilty and acquitted, the lack of validation is an emotional thing for a person. It's the justice system coming down and saying in the eyes of the law, in the eyes of the government, we cannot say that what happened to you did.
I want to say right now that if you went through the criminal justice system, and you received a Not Guilty verdict, or your case was dropped, I believe you. It doesn't mean it didn't happen to you. It doesn't mean your pain isn't painful. It means our system isn't set up to support you. You didn't fail. The system did.
2 in 1,000. That might make you feel sad. It might make you feel overwhelmed. It might make you feel mad. It might make you feel all of those things at the same time. What I will say, is that the best thing we can do is channel our knowledge and our emotions into action.
Comedian Daniel Sloss did that. When faced with these realities he channelled it all into one of the most powerful standup comedy specials I've ever seen, X. Here's a little portion of it.
Daniel Sloss: Don't make the same mistake I did for years, which was just sitting back and being like, well, I'm not part of the problem, therefore I must be part of the solution, because that's just not how this fucking shit works. I believe in, deep down, I know that most men are good, of course we are. But when one in ten men are shit and the other nine do nothing, they might as well not fucking be there. Being good on the inside counts for absolutely fuck all. You have to actively be good and get involved, instead of having this fucking hero complex of being like, I'm gonna beat up a rapist, fucking prevent one, stop one. Because I know it can be done, because I know how I fucking failed at it. Because, if I'm being 100% honest with myself, were there signs in my friend's behavior over the years towards women that I ignored? The answer is yes, and then he raped my friend, and that's on me until the day I die. I can't do much. I just won't do nothing anymore, and I'm just suggesting that you do the same.
Jane Aster Roe: You've been listening to The Defendants, an Aster Roe Production. It's executive produced by me, Jane Aster Roe, Rachel Arundel and Katie Jensen. Our Story Producer is Jessica Strachan. Editing and sound design by the incomparable Isis Madrid and Katie Jensen. Our research producer is Charlotte Gregg, our fact checker is Rachel Bromberg and our mental health consultant is Michelle Crossman. Lindsey Keene is our outreach coordinator. Dawson Fleming is our production assistant. The voice actors featured in today's episode were Lindsey Keene, Rachel Arundel, Dawson Fleming, and Mackenzie Langdon. Special thanks to Annette Studios and Vanessa Zoltan. We explored a lot of information in this episode. All our sources are in the show notes. It's also there that you can find resources and organizations that offer support. Thank you for listening.