The Problem With “Innocent Until Proven Guilty”

Some women are naming names. And their outed sexual harassers/assaulters are losing important business relationships. Just in the last couple of weeks, the casualty list includes chef John Besh, filmmaker James Toback, photographer Terry Richardson, tech leader Robert Scoble, and film producer Harvey Weinstein, plus venture investor Steve Jurvetson currently under investigation.

It wasn’t so long ago that even when several women accused the same person of sexual harassment or sexual assault, nothing would come of it. In fact, that still occurs, but it’s no longer the only likely outcome. So what changed? Two things: Bill Cosby, and #MeToo.

For quite a while, as the accusations piled up, many people persisted in proclaiming Cosby, “innocent until proven guilty.” But ultimately nearly 60 women accused him. By now it is generally accepted that Cosby is guilty, regardless of whether or not he is ever found guilty in court. This case moved the bar – slightly – from “innocent until proven guilty in court,” to “innocent until proven guilty beyond a shadow of a doubt, even if it doesn’t get to court.”

The “#MeToo” movement took off recently – that is, women stating “me too” in public contexts such as Twitter and Facebook, to indicate that they, too, have been sexually harassed and/or assaulted. The wave of public statements has had a snowballing effect, leading even more people to name names.

Which brings us to the case of Elie Wiesel, who was recently accused of having groped a teen-aged girl many years ago. I proffer this particular example not to litigate it, but because the accusation is so problematic: a) Elie Wiesel is regarded as a Tzaddik (that means, roughly, Good Guy) particularly by Jews, including me; b) he’s dead and can’t defend himself; and c) it’s the only public accusation against Wiesel, so the Cosby effect (of multiple accusers corroborating the perpetrator’s habit of offending) does not apply.

This has led many people to proclaim, “Innocent until proven guilty.” They say that she should have reported it at the time, and that alleged sexual assaulters deserve to be formally charged so they have a chance to defend themselves, rather than being “tried in the court of public opinion” without the opportunity for due process. This position sounds right, but is problematic, because it is based on the false premise that the prescribed action was realistic.

Do victims of sexual harassment or sexual assault really have access to redress? Serial offenders are known to enhance their impunity by targeting victims who are uniquely unlikely to press charges, such as those who were drunk or drugged during the assault, or those seeking career advancement support from the offender. In the Wiesel case, the alleged victim wrote, “It was a calculated act and worse than you think; he mistook me for an ultra-religious underage girl who was unlikely to tell anyone about it.”

Less than a third of sexual assaults even get reported. Furthermore, most reported sexual assaults do not lead to prosecution; and most prosecuted cases do not lead to findings of guilt. Only about six of every 1000 rapists serve time. On the other side, reporting a sexual assault is notoriously fraught for the victim, who can anticipate being disregarded, shamed, pathologized, and even attacked. All this for little or no anticipated benefit. It’s no wonder that the victims usually do not come forward. And even less wonder that so many victims did not come forward years ago – long before Cosby and #MeToo –  when the alleged incidents may have occurred.

So what to do when some new allegation comes out?  We don’t want to hear an allegation and reflexively pronounce “He’s guilty!” Grave harm can be done to an innocent person when credence is given to a false accusation of sexual assault, even in the court of public opinion. This risk should not be taken lightly. And due process for the accused should not be sacrificed, whether on campus, in the military, on the job, or in court.

On the other hand, the vast majority of sexual assault allegations are not false. And if we refuse to convict anyone – even in the court of public opinion – that means that 994 of every 1000 rapists face no consequences. In practical terms – the facts on the ground – we are currently providing preferential treatment to offenders, at the expense of the victims.

So how do we shift the playing field towards affording respect and justice to victims? If victims more often experience respect and justice, more victims will come forward, more offenders will be charged and convicted, and fewer offenders will be available to harm new victims.

I recommend reviewing any given allegation carefully, and proceeding accordingly. If it is clearly not credible – for example, if the alleged perpetrator can document having been elsewhere at the time of the alleged assault – it is fine to express skepticism regarding the complaint.

In lieu of clear evidence to the contrary, I think it is best to refrain from dismissing the allegation out of hand. Those without specialized knowledge may find it all too easy to discount a claim of assault, because (just for example):

• the account was inconsistent
• the alleged perpetrator was respected and/or prominent
• the complaint was associated with custody or other litigation
• the alleged victim’s complaint was too emotional, or not emotional enough
• the alleged victim was looking for money, or not looking for money
• the alleged victim put herself in a risky situation
• the alleged victim has alleged mental health issues or other problems

In fact, none of these factors are inconsistent with actual sexual assault, though they are often cynically used by defense attorneys as supposed disqualifiers.

Many people responded to the first several Cosby allegations by criticizing the alleged victims. I would not be so quick to attack those who report sexual harassment or assault that may have actually occurred – even when the alleged offender is a revered personage like Elie Wiesel; even when the alleged offender is dead and unable to defend himself; and even when there are no other similar reports regarding the alleged offender. Even if we do not yet have sufficient evidence to fully credit someone’s allegations, it is important to refrain from calling the alleged victim a liar. Remember that other women who have been victimized are listening, and learning from your responses whether or not they will be believed and respected.

The court of public opinion is the court of last resort for those victims of sexual assault – that is, the vast majority of victims – who do not get justice in the court of law. Requiring a sexual assault allegation to be “proven” in a court of law is an impossibly high bar that perpetuates impunity for rapists. When we do have sufficient evidence – such as in the case of Cosby and others – to be confident of someone’s guilt, it is important to convict that person in the court of public opinion, so that offenders do at least face social and financial consequences, and victims can experience respect and justice.