The Problem With “Innocent Until Proven Guilty”

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October 25, 2017 at 2:53 PM

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.



Tags: #MeToo Bill Cosby Harvey Weinstein John Besh James Toback Terry Richardson Robert Scoble Steve Jurvetson Sexual Harassment Rape
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Posted by Sheri Oz on
Thank-you for this wonderful contribution to the discussion. Disclosures of sexual impropriety are sensitive and arouse many emotional responses in the witness to the disclosure. It helps when we understand more of the complexities of the issue.
Posted by Ricky Greenwald on
Sheri, thanks for your comment. The blog post was inspired in part by discussions on your facebook wall.
Posted by Elise Bon-Rudin on
Needed and nicely done. Thanks for the link to NSVRC article. As you know, the criminal justice response is flawed through and through, so for now the court of public opinion is THE main court.
Posted by Ricky Greenwald on
Thank you.
Posted by Shanon Claussen on
Loved your article! Now if key people would actually listen... I am an EMDR Therapist and EMDRIA Approved Consultant
Posted by Ricky Greenwald on
In the court of public opinion, we're all key people, we all have a voice.
Posted by Bill Patrick on
This is extremely well said!!!!
Posted by Ricky Greenwald on
Thanks :^)
Posted by Wendy Murphy on
Great piece. I will add that the presumption of innocence is a legal rule that applies ONLY to the government. Private persons need not presume innocence, obviously, which is why we can presume OJ guilty of murder, and refuse to invite the indicted but-not-yet-convicted neighborhood molester over for tea. I write a lot about this and related issues of injustice and trauma in my book And Justice For Some, which is available for download at wendymurphylaw.com.
Posted by Elton on
How about explaining the problem with “Guilty Until Proven Innocent"?
Posted by Ricky Greenwald on
It's there. How about reading the blog post?
Posted by Sam Richardson on
No, it is not in the blog. Al Franken was proclaimed “Guilty until found innocent” - before the Ethics Invesigation he requested was done - or will ever be done. Did Political expediency overrule Justice? That’s a problem not addressed. “How about reading the blog post” - just a little arrogant - and insulting?
Posted by Ricky Greenwald on
Yes it is in the blog post. If you disagree with what I wrote, it's fine to say so. But it's ridiculous to say that I didn't address it when I did, explicitly and with links to more.

The Al Franken stuff, which came out after this blog was posted, is an interesting case worthy of discussion. The initial allegation was, IMO, quite dubious, given that it was not vetted (the accuser was herself a journalist and made the accusation on her own show), the accuser was a political opponent, and (I heard but have not verified that) the photographer (of the photo in question) said that the photo was staged, and that the supposed victim was awake and involved in the staging. At that point, Franken's request for an ethics investigation was just right.

But then another half dozen or so accusers materialized. Many of these were political supporters. And at least a couple (I didn't read up extensively on this, so I don't know details on every allegation) were vetted, and corroboration was found in that associates of the accusers stated that the accuser had mentioned the incident at around the time of its alleged occurrence.

At that point it was pretty clear that Franken had a problem, though not nearly as serious as Roy Moore's or the current president's. Should he have been forced out or resigned for this pattern of sexually aggressive behavior? This is an open question, and certainly debatable.

IMO, at another moment in history, he likely would have hung around for the ethics investigation, been found guilty and censured, and carried on. But at this particular moment in history, (my speculation is that) both he and his political party determined that his resignation would be better for the party, which is now able to position itself as the one opposed to sexual harassment, sexual assault, and pedophilia -- while the other party is supporting the senate candidacy of Roy Moore.

If Franken was innocent of all these allegations, I am confident that he would have hung in there for the investigation. I don't know many people who believe that he was innocent. I know many people who believe that his particular offenses were not serious enough to warrant resignation. And that's where I believe that political expediency did play a role.
Posted by Glosoli on
I do not know... As a male sexual abuse survivor, I feel extremely disconnected from this movement in a sense because I will *never* get any justice for what happened to me, and the very concept of justice or some sort of satisfaction of seeing another suffer is just... entirely foreign and beside the point for me. All I want is to try to heal some parts of the irreparable damage that was done to me, and indeed to my family.

You see, I was sexually and physically abused over a long period of time when I was 4-5 years old, and then there were several other isolated incidents later in life. But it was primarily a man and a woman at a day-care center who did the most harm to me, and what is unfortunate is that my memories are rather fragmentary.

Plus, my parents do not seem interested especially in figuring out WHICH day-care center was responsible, even - you see, my parents divorced when I was 5 and both were workaholics who worked 70+ hour weeks regularly, so I barely saw my mother or father until after they divorced. The only memories I have from age 5 and younger are memories of being sodomized and being told to do other utterly unmentionable things, often in front of a camera, simply because I was told to. At that age you do not question adults, you trust EVERYONE. If they tell you to take off your clothes and spread your legs, you not only do it but you *have fun* and *feel good* about it, because adults are paying attention to you and giving you affection. At the time back then, I was convinced the abusers were my REAL parents. Even after I forgot that and figured out what happened, I still couldn't say a word. It took 20 years, till I was a 26-year-old opiate addict (with nearly 11 years of drug abuse under my belt at the time) and with my life falling apart, of course. That was when I told my parents what happened, and they felt incredibly awful and regretful for suspecting something was happening then, but not acting on it.


So... I can barely remember the face of the man who abused me, though I vaguely remember the face of the woman - you see, she was the cruel one who would spank me so hard my butt would be numb for hours, and seemed to have some rage or hate. The male abuser actually seemed to have some fucked-up sort of love for me. You must understand I was still so young then that I truly had no frame of reference for what sexuality was, what this was, whether it was wrong or right or what.

And today... My feelings are so complex that if I saw this man again, I'd simultaneously want to run away screaming, break down crying, throw up profusely, lose consciousness, or go into shock.

Now, even as a male I can point out times when I've been groped casually by a teacher while in junior high - stuff like that. And that's easy to deal with.

But the only story I read out of this was Asia Argento's story of her experience of abuse with Harvey Weinstein - that rang true in some terrifyingly intimate ways, and I suppose that makes sense. A film Asia Argento made at the time, "THE HEART IS DECEITFUL ABOVE ALL THINGS", was about a child who was sexually abused - it also rang true on a deeply personal level.


I suppose I have been a little unclear about my point... I guess what concerns me about the #MeToo movement is that it tries to make the issue so much more simple than it really is, and it will ultimately only further the cycle of abuse because ultimately it stirs up intense hatred towards sex offenders. Hatred and punishment is not the way to solve this problem, it's how it is perpetuated.

What we need to do is work on seriously and effectively treating both the victims *AND* the offenders for these incidents, because both parties need help, not more punishment -- whether it's self-imposed in the victim's case or outwardly imposed in the perpetrator's place. If we do not spend time and effort and *empathy* learning how and why these things happen... then we'll never stop the cycle from perpetuating itself.

As difficult as it is to say, we need to TREAT people like Weinstein or Spacey, and UNDERSTAND. We need to learn how to spot and stop this behavior early.

I cannot tell you how painful it is knowing that each and every kids as young as I was are being raped and molested... And have absolutely no idea whatsoever why. They do not know that even though they're getting attention showered on them and having a sort of fun, that it will irrevocably damage and haunt them for life. Those are the good times, the luck times. It always ends in bad times, in doing things that feel scary and overwhelming and painful and upsetting.. It's all so difficult to explain and talk about this kind of exploitation.

So I find the simplicity of #MeToo,,, kind of insulting, I guess...
Posted by Ricky Greenwald on
I'm sorry that happened to you.

I agree that perpetrators, as well as victims, can potentially benefit from treatment.

I disagree with your point about punishment, though. Granting near-impunity to rapists, assaulters, and harassers -- as has been the de facto situation until now -- is not helpful. Most are serial offenders, and they keep doing it because we don't stop them. Most are uninterested in treatment until their behavior becomes a problem for them, and not just for their victims. Another way of saying this is that facing real consequences is an essential component -- and often an essential precondition -- of treatment for offenders.

I also agree with you that hatred is not a required or helpful element of an effective response.
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