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June 23, 2014 8:15 AM Rape, Privilege, and the Presumption of Innocence

By Mark Kleiman

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). None of them seems overly concerned about the high rate of false convictions among those sent to Death Row.

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 is 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.

[Cross-posted at The Reality-Based Community]

Mark Kleiman is a professor of public policy at the University of California Los Angeles.

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