“Innocent until proven guilty” is a principle of justice that we claim to hold dear. We demand proof of guilt through due process of law before punishing an individual—either informally, through public condemnation, or formally, by legal means. The crimes of sexual harassment and assault pose a unique challenge to this principle.
The rash of men recently accused of sexual assault—Harvey Weinstein, Matt Lauer, Al Franken, Louis C.K., and more—elicit a range of reactions, from shock to skepticism to outrage. But many of these allegations are publicized before, or without being, adjudicated—before the accused have been proven guilty. How do we react? Is outrage in conflict with the “innocent until proven guilty” principle? What is the alternative? Of the flurry of allegations, some have been affirmed and some denied, yet all have stained the reputations of those accused. The justice in this is worth considering.
As universal as the presumption of innocence principle has been, it is fundamentally at odds with the service of justice in sexual harassment and assault cases. This is the first time that victims of powerful, high-profile perpetrators are coming forward in droves. The sudden flood is not indicative of a brand-new epidemic; the only thing new about this phenomenon is that its victims are reporting it.
The “innocent until proven guilty” framework takes for granted the process of allegation, and then subsequent decision to adjudicate. People cannot be guilty until they first are exposed. What does “proof” look like when the alleged behavior is only a crime under certain—namely, non-consensual—conditions, and those conditions are disputed? What happens when it is one person’s word against another’s?
In such cases, the credibility of each perspective becomes particularly scrutinized, inviting invasive speculation about the victim’s personal and sexual life. The defense can revolve around various iterations of “she asked for it.” The process of proving sexual harassment can thus be both legally and psychologically challenging, which in and of itself is a deterrent to making allegations in the first place.
But when victims do not feel comfortable coming forward, the service of justice is thwarted before it can even begin. One potential solution is to use a lower standard of proof. This is precisely what President Obama authorized in his “Dear Colleague” letter, which has since been revoked by Trump’s Secretary of Education Betsy DeVos.
But what happens when false accusations are made? As grossly overestimated as this phenomenon is, it would be remiss to fail to consider what measures must be taken to protect the rights of the accused. Also worth considering is the precedent set by allowing an executive to choose to change principles of justice that have been sacred for centuries. In this way, the “Dear Colleague” letter could be viewed as a threat not only to the rights of the accused, but to the separation of powers.
Perhaps the more prudent approach is to break down other forces that are keeping victims silent. Particularly in cases with high-profile perpetrators, victims often fear the backlash that would result from an allegation.
Often, the hesitation has more to do with victims’ own uncertainty as to whether they even have legitimate grounds to accuse. The cases in which accusers are entirely sure of themselves but get thwarted by the legal process are frustrating. But even more tragic are cases in which victims cannot even convict their perpetrators in their own internal adjudication processes.
Sometimes, they are buried underneath layers of unanswered questions. Does a lack of physical force imply consent? When it comes to high-profile perpetrators, is it possible to feel both flattered and violated at the same time? If I didn’t come forward immediately, is it because a part of me welcomed it? Should I have welcomed it?
Sex crimes are sometimes evident objectively, when there is evidence of physical coercion or statutory rape, or if the perpetrator accepts guilt, or does a poor job of hiding it. But many times, the perspective of the accuser is the crux of the case. Perpetrators have room to either deny that the alleged behavior took place, or that it did and was consensual. The entire burden of proof thus often rests upon the experience of the victim.
This puts enormous pressure on the victim’s unequivocal confidence in their victimhood. And even then, victimization is not just in the eye of the beholder—it must be clear that the perpetrator knowingly violated them. More than any formal legal standard, the most powerful deterrent to reporting can be a lack of faith—on the part of others, and oneself—that one’s experience is valid. This means that the most effective way to bring these stories to light is to believe them.
While the presumption of innocence principle must remain legally sacred, we must leave room in our own cultural discourse to stray from it—just far enough to bring justice to those whom it has helped to silence. We must hear these allegations and take them seriously. We must not deny these women’s experiences, nor fail to consider the way power dynamics can create implicit coercion, nor let our respect for the careers of these esteemed men make us believe they are infallible. While respecting the rights of the accused to deny the allegations, and providing them due process before expecting any legal redress, we need to create a culture in which victims feel their voices will be heard.
The flurry of allegations is more encouraging than it is demoralizing—it is indicative that this silence is finally being broken. The extent to which it leads to long-lasting culture change will depend on whether we choose to listen.
Image Credits: Lorie Shaull/Wikimedia, David Shankbone/Wikimedia, Stephanie Moreno/Flickr, & Brian Marschhauser/Flickr