A Presumption of Innocence – Amanda S. Green
One of the most fundamental premises of criminal law in this nation is the presumption of innocence until proven guilty. This one idea – or ideal, if you prefer – places the burden of proof on the State to prove beyond a reasonable doubt that someone is guilty of an offense. What that means is the State simply can’t accuse someone of committing an offense, jail them, smear their name and hold them unless and until the accused manages to prove their innocence.
It is, in short, a right we should hold as one of the most dear and most important ever granted.
Unfortunately, that right is being trampled on, willingly and happily, by some in our society. Why? Because they believe (or at least profess to believe) that the male of the species in inherently bad and should be made to pay for the patriarchy that has held women down for most of history. They ignore history and historical precedence in pushing for a system, within the legal system and on our college campuses and in our military, that shoves us back centuries of jurisprudence and assumes that every male accused of sexual assault is guilty.
I don’t know about you, but that is one step back I don’t want us to take because of the precedent it sets for so much more.
A recent panel at the University of Wisconsin (Madison) points to part of the problem. In the panel “Confronting Campus Rape”, the discussion quickly devolved into an agenda that should have been anticipated simply by looking at the description of the panel: “reframe the debate, discussing university culture and policy, pedagogy, and student experience through the lens of feminist philosophy, legal theory, and studies of sexuality and power.”
The result of the discussion – if you can call it that – was to push for a denial of rights to those accused of rape, up to and including denying them the right to council during the disciplinary hearing, denying the right to confront the accuser and more. According to these forward thinking individuals, the chance of a woman accusing a man of rape was so slim, he should be presumed guilty and punished and to hell with his rights.
This isn’t an isolated incident. According to a report by Fox News, similar approaches are being advocated at Brown, Amhurst and Columbia. Students at that bastion of liberal thought, Berkley, have protested due process for their fellow students accused of rape. Protesters at a lecture at Ohio University about the college tribunals and their lack of due process for the accused wore tee shirts that read “Rape is Real” on the front and “This is bullshit” on the back.
Time has an insightful article about this troubling trend that lays at least some of the blame directly at the door of the White House. I’ll leave you to read it but, as with so many initiatives, it is based upon data that is, at best, questionable. In this instance, the study the White House relied upon stated that 1 in 5 female students were sexually assaulted while in college. That is a horrifying number. However, from what the article says, that number came from a study based on only two schools and with a very low response rate. Not exactly scientifically accurate by a long shot – not that it stopped the White House from moving forward.
Thus, since 2011, the Department of Education has recommended that colleges use the lowest burden of proof—“preponderance of the evidence,” which means a finding of guilt if one feels the evidence tips even slightly toward the complainant—in disciplinary proceedings on sexual assault. (Traditionally, charges of student misconduct have been judged by the higher standard of “clear and convincing evidence.”) The new guidelines make this a requirement; they also encourage “juries” with no student participation and even a shift to a single-investigator process.
If that isn’t bad enough, keep reading.
Missing is virtually any recognition of the need for fairness to the accused. The recent White House Council on Women and Girls report on sexual assault dismisses false accusations as a “myth,” citing a 2010 article by University of Massachusetts Boston psychologist David Lisak that concluded that “only 2-10% of reported rapes are false.” Yet a 10% error rate is hardly trivial. This estimate also refers only to proven fabrications; no one knows how many unresolved charges, nearly half of Lisak’s university sample, may be false.
But this terrifying trend – and it is terrifying. If we allow the government to encourage this sort of behavior in our education system, how long until it starts trying to use this inverted standard of proof in criminal trials – isn’t limited to our college campuses. The military is also taking steps that make is almost impossible to defend against such an accusation.
I don’t know if Major Michael Turpiano was guilty or not of the charges brought against him. However, if any of the facts put forth in this article on JQP are true, the case against him is troubling at best. It also appears to be another situation where the man was presumed guilty and denied the ability to mount an effective defense.
As the mother of a son, I’m not surprised by this. When my son was old enough to start showing an interest in girls, I sat him down and had a long talk with him. We discussed all the things you would expect: how to tell if a girl was interested, respecting her and listening to her, if she said “no” not to push, etc. But I also talked with him about making sure he took precautions and not to trust the girl when she said she was on the Pill, etc.
You see, I’ve listened to women of my acquaintance, both when I was still in school and since then, talking about what they have done or threatened to do to guys who didn’t “fall in line”. Some of the jealous ones threatened to accuse him of anything from giving them the clap to rape if the guy broke up with them. Others laughed about how they told a guy they were on the Pill when they weren’t. If they got pregnant, they’d either get an abortion or have the kid, sue the guy for child support, and live pretty on his dime.
I’m also a rape survivor. I know what it means to have my choice taken from me and to be violated in the most personal and emotionally traumatizing way you can be. So believe me, I have no sympathy for a man (or woman) who rapes another person.
But here’s the thing. Whatever that somewhat questionable study says, women do make false accusations of rape and other forms of sexual assault. Sometimes it is because the girl in question is underage and gets caught by her family doing what she shouldn’t be doing. In order to keep from getting into trouble, she claims things got out of hand and she really hadn’t agreed to go “all the way”. Sometimes it happens because the woman is just a bitch or evil.
The question we have to answer is multi-fold. First, do we dare start down a slope where we choose one form of offense to change the burden of proof, placing it on the accused? Second, is it worth ruining the life of a single innocent person just to “reframe” the issue “through the lens of feminist philosophy”? Third, when did it become acceptable to blame someone for the so-called crimes of their ancestors? Fourth, when did it become the vogue to condemn someone simply because of their sex?
I don’t care that a campus investigation into an allegation of sexual assault isn’t a criminal trial. The truth of the matter is that investigation will determine whether the college refers the case to the criminal authorities of the jurisdiction where the college is located. The so-called evidence the university gathered will be turned over. In the meantime, while the university administration is protecting the identity of the accuser, the accused is identified, suspended from class and other activities on campus and, in short, in danger of having his life ruined. He has little recourse, thanks to the Department of Education and the current Administration, simply because he is male.
We don’t judge – or at least shouldn’t – a person based on the color of their skin, the religion they follow or the creed they embrace. Why are we being asked to judge in this case simply because the accused is male?