In a piece published Saturday in the Washington Post, attorney Zerlina Maxwell argues that we should always err on the side of believing alleged rape victims. Unfortunately, her vision of justice would allow serious consequences to fall upon alleged perpetrators in advance of evidence.
Thesubhead for her piece is, “Incredulity hurts victims more than it hurtswrongly-accused perps.” Maxwell attempts to back this up by making agreater-good argument. She points to evidence that the overall reporting of rape is below 50 percent of the actual number and that, according to some research, the incidence of false reportsis below 10 percent. Therefore, Maxwell concludes, by merely looking atthe numbers, more people will be helped than harmed by erring on the side of the accusers.
Ultimately,the costs of wrongly disbelieving a survivor far outweigh the costs ofcalling someone a rapist. Even if Jackie fabricated her account, U-Va.should have taken her word for it during the period while theyendeavored to prove or disprove the accusation. This is not a legalargument about what standards we should use in the courts; it’s a moralone, about what happens outside the legal system.
The accusedwould have a rough period. He might be suspended from his job; friendsmight defriend him on Facebook. In the case of Bill Cosby, we might haveto stop watching his shows, consuming his books or buying tickets tohis traveling stand-up routine. But false accusations are exceedinglyrare, and errors can be undone by an investigation that clears theaccused, especially if it is done quickly.
At the 30,000 foot level, Maxwell’s argument may at first sounds reasonable but there is an obvious problem with it.Another way to look at presuming the truthfulness of the accuser is presuming the guilt of the accused. Thismay be appropriate for crisis counselors or anyone receiving a firstreport of a serious crime like rape, but it’s obviously not how ourjustice system works overall and for good reason.
In our system, the accused is innocentuntil proven guilty. The more serious the accusation — and rape iscertainly one of the most serious crimes one can allege — the moreserious the potential consequences. But seriousconsequences necessitate a high standard of proof and are only applied after an impartialjudge or jury reaches a decision about guilt in accordance with thelaw.
What Maxwell seems to be arguing for is what might becalled Red Queen justice, i.e. “sentence first, verdict afterwards.”Saying, as Maxwell does, “the accused would have a rough period,” andadding that the consequences could be lost friends on Facebook,substantially downplays the potential impact of a rape accusation on the accused.
As Emily Yoffe points out in a lengthy piece published at Slatetoday, the penalties associated with an unfair accusation can belife-altering. Yoffe tells the story of Drew Sterrett, a freshman at theUniversity of Michigan who had sex with a young woman referred to as CBafter both had been drinking. CB came into Drew’s room, got in his bedand then:
They talked quietly, started kissing, andthen things escalated, as they often do when two teenagers are in bedtogether. When it became clear they were going to have intercourse, CBasked Sterrett about a condom, and he retrieved one from a drawer. Theirsex became so loud and went on for so long that Sterrett’s roommate,unable to sleep in the upper bunk, sent Sterrett a Facebook messagearound 3 a.m.: “Dude, you and [CB] are being abnoxtiously [sic] loud andinconsiderate, so expect to pay back in full tomorrow …”
Overthe following summer, Drew was contacted by the University’s Office ofStudent Conflict Resolution to arrange an interview on Skype. It wasonly in the midst of the interview he realized his night with CB hadbecome an issue of controversy.
Despite evidence that CB was awilling participant in what took place and evidence that her problemwith the incident only began after her mother read herdiary, Drew was judged guilty of breaking University policy. In hissophomore year he was given a badly misleading “statement of witnesses”summary prepared by the University as a kind of draft of what the finalreport would find. Drew pointed out serious errors in thesummary. For instance, it suggested he had admitted a non-consensualencounter to his roommate. In fact, as the roommate confirmed in anaffidavit, Drew was merely, “expressing regret for sleeping with someone in their group of friends.”
Inthe end Drew was found guilty of having intercourse without consent andcreating a “hostile environment.” He was suspended from school until CBgraduated in 2016. After two more appeals Drew chose not to return toschool. This year he filed a lawsuit against the University claiming “his 14th Amendment rights of due process” had been violated. As Yoffe explains, the mindset behind the treatment of Drew is spreading with the help of the federal government:
Unfortunately,under the worthy mandate of protecting victims of sexual assault,procedures are being put in place at colleges that presume the guilt ofthe accused. Colleges, encouraged by federal officials, are institutingsolutions to sexual violence against women that abrogate the civilrights of men. Schools that hold hearings to adjudicate claims of sexualmisconduct allow the accuser and the accused to be accompanied by legalcounsel. But as Judith Shulevitz noted in the New Republic in October,many schools ban lawyers from speaking to their clients (only notes canbe passed). During these proceedings, the two parties are not supposedto question or cross examine each other, a prohibition recommended bythe federal government in order to protect the accuser. And by federalrequirement, students can be found guilty under the lowest standard ofproof: preponderance of the evidence, meaning just a 51 percentcertainty is all that’s needed for a finding that can permanently alterthe life of the accused.
Losing a chance to attendUniversity and having a permanent stain on one’s record is quite a bitmore serious than losing a few Facebook friends. ZerlinaMaxwell simply assumes that errors in the early stages will be, “undoneby an investigation.” Butthat’s clearly not what happened to Drew. There was a process of somekind taking place but that process does not seem to have been handled fairly or impartially. How impartial can an investigation beif the body in charge has as its first principle the presumption thatthe accuseris telling the truth? Maxwell doesn’t seem to grasp that these twothings are at odds with one another.
Maxwell’s piece is written in response to the partial collapse of the UVA gang-rape story (Jackie’s story) published last month by Rolling Stone. Last week the Washington Post published evidence and interviews suggesting some of the details relayed by Rolling Stone were false. Rolling Stone apologized twice on Friday for failing to properly report the story.
Jackie’sstory may be the exception but it’s also agood example of how a desire to believe the accuser and to presume theguilt of the accused may not lead to the truth (Rolling Stone nevercontacted any of the seven accused rapists). That’s not to say nothinghappened to Jackie or that her accusers are innocent of all wrongdoing.Multiple people have attested that something serious happened to herthat night which dramatically changed her demeanor. However a decisionabout consequences for those accused should follow not precede the bestpossible fact-finding into the incident in question.