Rape, privilege, and the presumption of innocence

The amount of nonsense written about rape and lesser sexual assaults is really quite astounding. I suppose I should be grateful for anything that makes “conservatives” sympathetic to the rights of the accused. I would be, too, if I thought it might generalize past privileged men accused of that specific crime (and of course right-wing pols and corporate grifters). But if  the high rate of false convictions among those sent to Death Row worries the right-wing pundit class, they’ve been keeping that information private.

The two latest exhibits are George Will’s weird ruminations about campus sexual-assault codes (and his subsequent defiance of the First Rule of Holes) and Peter Lloyd’s ill-named “Thinking Man” column in the Telegraph (aka Torygraph) about the travails of the current president of the Oxford Union. That young man will not face prosecution after two female Oxford students, both 19, accused him of rape in one case and attempted rape in the other.  Apparently the reported incidents involved two separate occasions; the stories don’t make it clear whether the two accusers knew each other, or of each other’s allegations.

Will and Lloyd employ identical brands of (il)logic. They (un)reason approximately as follows:

A report of rape (or other sexual assault) is merely an allegation; in the criminal law, the accused is presumed innocent unless and until proven guilty, and proof must be beyond reasonable doubt (also known as “proof to a moral certainty”); therefore when the police or the prosecutors do not press charges, or the charges are dismissed, or the accused is acquitted at trial, that proves that the allegation was false; since the accused is innocent according to the law, he must not have done what his accuser alleged he did. That means that she is a liar and he is a victim.

Therefore, any inconvenience the accused suffers in the way of damaged reputation or non-criminal punishment (e.g., university discipline) constitutes injustice, and any administrative system that hands out sanctions on less than a guilty-beyond-reasonable-doubt standard violates basic principles of fairness. Lloyd demands that in cases of sexual assault the accused, as well as the accuser, be granted anonymity. Will then goes on to add that conflating obnoxious but lesser forms of misbehavior such as unwanted touching (a crime) and obscene remarks (not a crime) with rape confuses things, which is true, as he then demonstrates. Will and Lloyd finish up with poetic screeds about the horrible oppression of privileged men.

In a sane world, one would just leave this nonsense alone as obvious self-refutation. But since in the actual world it seems to have some persuasive power, here goes:

Precisely because of the reasonable-doubt standard, there is no valid inference back from the absence of a criminal conviction to lack of culpability-in-fact. Presuming innocence is not the same as proving it. (Pick your favorite example of someone guilty-in-fact though never convicted: Hitler and Stalin of mass murder, J. Edgar Hoover of blackmail and of multiple conspiracies to break and enter, O.J. Simpson of killing his wife, Louis Farrakhan of conspiring in the murder of Malcolm X, Dick Cheney of ordering torture, Bill Clinton of having erotic contact with a woman his daughter’s age who was on his payroll – which is not a crime – and also of invasively touching a large number of women who hadn’t invited it, which is, though it’s a crime short of rape.)

Often enough, what is called for is the “Scotch verdict” of “Not proven,” or the moral judgement that someone has done a wrong without actually committing a crime.  In such cases, of course the accused cannot be criminally punished. But equally of course, the lack of a conviction does not discredit the accusation, or demonstrate that the person still presumed innocent in law is innocent in fact of having broken the law, let alone morally innocent of some action short of a crime.

Educational institutions and workplaces make adverse decisions all the time on much less than a criminal-law standard of proof, or even the preponderance-of-the-evidence standard. When I report a student for cheating, the decision about whether to suspend or expel that student – thus not only costing that student money and time but putting an indelible black mark on his or her transcript – does not involve testimony under oath, confrontation, the right to counsel, or judgment by a jury of peers. (And plagiarism has at least as much gray area as sexual misconduct.)

Instances abound. When schoolteachers demand that their jobs should be protected unless it can be proven that they are incompetent, “conservatives” protest. And incompetence, even when proven, is not a crime.  Is being fired for incompetence at 50 less damaging than being expelled from a university at 20? Not obviously.

No one thinks that an eviction or foreclosure proceeding – depriving someone of his or her home – ought to require proof beyond reasonable doubt. No one wants a reasonable-doubt standard for turning down a disability claim. The same applies to termination of parental rights in cases of alleged abuse or neglect.

Those accused of crimes receive, and deserve, special protections against the very severe punishments inflicted by the criminal law. But why on Earth should they get more protection than those accused of things that are not crimes from the ordinary consequences of getting a bad reputation, or the ordinary risks of adverse administrative decisions? And surely the fact that rape is a crime shouldn’t protect someone with a habit of making crude sexual remarks, or exploiting a supervisory position for sexual advantage, from losing some privileges as a result.

Now, I have no inside information about the Oxford case, and it’s certainly possible that the young man has been traduced and that the reputational damage he has incurred is unjust. But if in fact the two accusations were independent of on another, the joint probability of both being false must be very small indeed. Even if one of the accusers had heard of the other accusation before coming forward herself, the fact that two women in two separate incidents report that the man attempted to force himself on them must weigh very heavily against the view that he was free of any wrongdoing. That is not the view of the matter taken by the rules of criminal evidence, but it is nonetheless the logical view.

Whether there was enough evidence to justify, or require, the Oxford Union to replace him as its president I’m in no position to say. But on the facts as published, and in the absence of private information (for example, knowledge that the accusers are friends with reputations for lying and a known grudge against the accused) no nineteen-year-old woman with any common sense would allow herself to be alone with him, or with him and only his male companions, especially with alcohol present, and I wouldn’t be surprised if some of his female colleagues in the Oxford Union leadership were made extremely uncomfortable by having to be physically present with him.

Will is right, of course: late-adolescent hormones and alcohol (and, as he doesn’t add, the macho  fraternity/sports-team culture that glorifies male aggession) make a toxic combination, and the moral responsibility for what happens doesn’t rest entirely with young men. But rape, and outrages short of rape, happen too often, and (as Will and Lloyd would be the first to remind us in other contexts) the two sexes are not symmetric with respect either to their power to inflict harm or their vulnerability to harm.

Workplaces (including the military workplace) and educational institutions need systems of internal discipline to protect (primarily, though not entirely) their female employees and students from their male employees and students. Since those systems have to be designed and run by human beings, they will be imperfect and sometimes inflict injustice on the accused. That is of course to be avoided insofar as possible, but (again, a “conservative” theme) the demand that nothing unfair ever happen to anyone is utopian, and if acceeded to makes it impossible to run any sort of institution. There is also such a thing as unfairness to victims.

Again, all of this is obvious to “conservatives” when it comes to the rights of people accused of forms of misconduct their friends and relatives don’t commit. Goose, meet gander.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

10 thoughts on “Rape, privilege, and the presumption of innocence”

  1. In line with Mark's call for the Scotch verdict, in Dutch rules of evidence in civil cases, a preceding guilty verdict in a criminal case counts as absolute evidence that the crime has been committed, while an acquittal carries no weight at all.

  2. This is an excellent post Mark. I still am not sure that I'm totally convinced about the merits of Title 9 mandating a "preponderance of evidence standard" in University sexual assault cases though. You are right: it is not a criminal issue but a civil one where a less demanding evidentiary standard is common. But since the consequences are so severe for the accuses and one of the parties to the civil complaint is in fact the state, I am a little uneasy..

    1. Emily Bazelon wrote a piece for Slate a few weeks ago in which, toward the end, she argued that "the Department of Education should raise the standard of proof to clear and convincing evidence, to underscore the importance of (relative) certainty. And then universities should stiffen the standard punishment, so that a student who is found responsible for rape (let’s call it what it is) can expect to be expelled."

      "Clear and convincing" is somewhere between "preponderance of the evidence" and "beyond a reasonable doubt."

      FWIW, my understanding of the UCLA Student Conduct Code is that, in those cases where a Dean refers a matter to the Student Conduct Committee, "The Standard of proof which will be used in Hearings is that the University must prove that it is more likely than not that the student committed the misconduct of which he or she is accused." (i.e., "preponderance of the evidence") The student is allowed to have a Campus Advocate or an attorney present, and the student can propose questions to be asked of witnesses.

      Still very different from a criminal court, but, as OP says, there's no reason that the campus procedures for civil penalties should exactly mirror the criminal courts.

  3. Given that our values dictate it is better to let a guilty person go free than send an innocent person to jail, these cases are always going to be a long shot. And I for one question the whole point of having a college system at all – I wonder if it wouldn't be better for victims to just go straight to the police, who should at least investigate. It can't be fun to have a detective come and knock on the door.

    This — "… no nineteen-year-old woman with any common sense would allow herself to be alone with him, or with him and only his male companions, especially with alcohol present, and I wouldn’t be surprised if some of his female colleagues in the Oxford Union leadership were made extremely uncomfortable by having to be physically present with him." — is probably the best we will get most of the time with "date" rape ("drunk" rape …)

    And it's better than nothing. I am all for the bathroom walls, too. I want to know. There is value in speaking the truth even if you don't get what you want, exactly. (Of course … lying is wrong, especially about something like this. But, rare too.)

  4. You’re being way too polite. This is about Lèse-majesté, only with the dignity of the entire male elite at stake, not just a mere sovereign. (You will also notice that Rich White Men are never sprung on technicalities, but rather exonerated by the proper function of the law in all its majesty.)

    I think that underlying the pundit-panic is the same kind of defensiveness that makes accusations of racism such a big deal for some conservatives. Racism (albeit it does not exist and is never practiced by white men, if it ever was) is a Very Bad Thing, and thus accusing someone of racism is Even Worse and must be punished severely. A liberal, on the other hand, will say something ridiculous like “Yeah, I was raised in a pretty racist culture, and although I’ve been trying to get over that I still sometimes think and act in ways that reflect that. Sorry, I’ll try to do better next time.”

  5. Mark, I agree with almost all of what you've written here. Just one counterpoint. I think granting anonymity to an alleged victim of sexual assault but not to the alleged perpetrator is wildly unfair. It should be both or neither, and I think I have to favor neither, which accords with I don't know how many centuries of common law. I believe that in the United States, anonymity for alleged rape victims is voluntarily granted by the news media; laws mandating it would obviously violate the First Amendment. Things are obviously different in the U.K.

    1. I don't think these things ever really stay under wraps — the names usually get out. I favor "official" anonymity at least for the victim, and maybe for both (need to think about it more) — meaning in news articles and court records — but in reality, I think people who live in a place pretty much get to know the parties involved. And given how underprosecuted and -convicted this crime is, I don't see why the accused should be protected.

      I just think it all doesn't need to be on the web. I know that's not really possible now, but that's a downside of the internet. Anyway, I think we all know which side is going to get the worst of it — always and everywhere.

      After all, the people who know someone are going to draw their own conclusions. That's why I think it is okay for victims to talk about it, write about it, whatever. That's mostly the only justice they're going to get.

  6. As a man who marched (at Dartmouth, no less) to Take Back The Night who went on to become a public defender, I am conflicted. This is an excellent post.

    Yet at the same time it is still an academic perspective. The reference to plagiarism–considered a crime by the press and academy and virtually no one else–is a hint. The reality is that Committee on Standards type hearings are where due process goes to die. Which is fine for academia given the stakes, but not fine for conduct that is criminal. And just like prosecutors choosing federal vs state in a quest to get the death penalty, the difference in forums is asymmetric vis a vis the parties. The fact of the matter is that many colleges' definition of rape includes more or less every variety of sex act where one or both parties is drunk.

    Moreover, it is not boys' fault that fraternities are still legal and still less their fault that alcohol lowers everyone's inhibitions. In fact, given brain science, it really isn't fair to try anyone under age 21 in adult court.

    It certainly is not as bad as being raped, but the false charge of rapist is second only to the false charge of child molestation in its social approbation. And as I saw far too often in court, it is a powerful weapon for women who find themselves otherwise powerless.

    1. Yes, rape is a crime. But college authorities can't impose criminal penalties. So it seems to me that whatever level of due process is appropriate to adjudging a case of alleged cheating for university discipline is appropriate to adjudging a case of sexual assault for university discipline.

      1. Mark, Your response indicates that you hold a view that the appropriate level of due process should be determined on a forum by forum basis without regard to the alleged acts being adjudged and without regard to the seriousness of the penalties. A friend of mine named Matt Kaiser wrote a very good op-ed (in the WSJ, I think) exposing just how backwards that approach is.

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