Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘due process

Treatment of accusations

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The recent accusations* of sexual assault against U.S. Supreme Court nominee Brett Kavanaugh, and especially the situation around them, is highly troubling.

*Disclaimer concerning the specific accusations: I make no claim about whether the accusations are true or false. (But admit to finding them fishy. Cf. some of the below.) The main point is not whether Kavanaugh, specifically, is guilty or innocent of something, but how various scenarios should be handled in general, including accusations that lack proof, accusations that are raised belatedly, actual events that took place a long time ago, etc.

Again, a mere allegation is used to discredit someone, potentially ruining both a career and a reputation. Worse, now the democratic processes are threatened: If Kavanaugh’s nomination is defeated, then what is next? There are many political fanatics who justify even thoroughly anti-democratic means through their holy end—and if they see that, for instance, Kavanaugh was kicked out based on mere allegations (even truthful allegations), the risk that some of them will raise false allegations against others increases severely.* A justice with the “wrong” opinions is nominated? The “wrong” candidate is leading in the polls? That professor is a registered Republican? Now there is a remedy!

*And, no, in light of many actual, anti-democratic events documented on sites like Minding the Campus, or the very high rate of false accusations in other areas (I have briefly discussed the subject in e.g. [1] and [2]), this is not a hypothetical to just be shrugged off—the risk is very, very real. To boot, albeit with a smaller likelihood, there are at least some cases where such accusations could be used as an extended filibuster, e.g. to block the appointment of anyone to the Supreme Court nominated by the “wrong” President. (The attempts, then by the Republicans, to eliminate Obama by questioning his country of birth is another indication of a faulty attitude.)

In order to reduce such risks, I would suggest the implementation of some or all of the following rules:

  1. An unproved* accusation is void for the purpose of appointments, hiring, firing, … It must** be ignored in the decision-making*** process. Failure to do so amounts to illegal discrimination and considered e.g., in the case of a firing, wrongful dismissal. (This is a special case of the presumption of innocence.)

    *Exactly what level of proof is needed might require further discussion. A formal criminal conviction is certainly enough, but there might be instances where a finding in a civil suit, considerable evidence never presented in court, or e.g. personal knowledge might also suffice. (For an example of the latter, consider a decision maker who personally witnessed a certain event—but not a decision maker who merely is convinced that the accuser is truthful.)

    **Such a ban is doomed to fail when it comes to e.g. voter opinion, but should work reasonably in cases like Kavanaugh’s and very well when it comes to e.g. firings with no other credible support. Similarly, that a judge instructs a jury to ignore a certain statement will not erase the statement from the minds of the jurors—but it is the best he can do. (Assuming that the instruction was justified.)

    ***However, it might legitimately lead to an investigation. Such an investigation can, obviously, provide proof, after which the situation changes. Even so, such investigations should normally be left to the proper authorities, and e.g. the type of kangaroo court used by some U.S. colleges is not defensible.

  2. No accusation is to be considered that was not raised in a sufficiently timely manner. For instance, if Christine Blasey Ford (Kavanaugh’s main accuser) had gone to the police within some reasonable* time after the alleged event, pointing to that accusation today would be a legitimate move on her behalf—but she waited some 36 (!) years before going public.

    *What a reasonable time is, needs further discussion. In the current case, days would have been best, but weeks might have been tolerated if the experience was traumatic or other circumstances made “days” unconscionable. Even months, however, would be very hard to justify. If nothing else, we have to consider the risk of false accusations and the reduced ability of the innocently accused to provide e.g. alibis as time goes by—the rights of the accused are just as important as those of the accuser. A timely report to the police is, obviously, also in the interest of a (truthful) accuser, so that evidence can be gathered in time.

    In addition to arguments in favor of statutes of limitation in general (cf. below), we also have to consider that when an accusation is raised so long after (even a real) event, the memory of the accuser might be too faulty to be trusted. Did the events really take place that way or have they been exaggerated after mulling over them a few dozen times? Were the intents involved interpreted correctly?* Was it really the accused or might it have been his brother? Etc.

    *For instance: Looking at the specific alleged Ford–Kavanaugh situation, Ford seems to frame it as a rape attempt. However, from what is written on Wikipedia, it is not clear that the intentions went beyond molestation (even assuming that the event took place). Such intents even seem unlikely, with two older boys interacting with a girl of fifteen in situation controlled by them. Had this been an actual rape attempt, her chances would not have been great. (Wikipedia on the nomination: “According to Ford, Kavanaugh pinned her to the bed, groped her, ground against her, and tried to pull off her clothes and covered her mouth when she tried to scream.” The one thing potentially pointing to specifically rape is the clothes, but here too much room for interpretation is present, including whether her pants were involved—and what about his pants? To speak of “sexual assault” is justified, but “attempted rape” is, unless vital information has been left out, speculation.)

    Reasoning that e.g. the “risk” of a high appointment for an unsuitable candidate might justify coming out even after a long time, is flawed, as per several below points and the fact that there are plenty of innocents that might need protection in the life-path of almost everyone—not just of holders of high offices. If someone sees a need to act when a high office is involved, then she willfully exposed smaller groups of people in the past. In the specific case of Ford and Kavanaugh, we also have to consider that this is not his first high office. Why did she not speak up e.g. when he was appointed to the circuit court?*

    *The obvious speculation is that we now have a situation where an accusation, be it truthful or false, has a greater political impact, and a “Republican” Supreme Court can at least be delayed—that it is a matter of mere political expediency, by a Democrat with some history of political activism. (Cf. Wikipedia on Ford.) However, I stress that my knowledge of Ford’s character, history, whatnot, are far too limited to consider this more than speculation.

  3. The relevance of an alleged act/event/whatnot to suitability for a certain position must be considered. In many previous incidents, mostly relating to issues like being non-PC (e.g. [3], [4]), no such relevance has been obvious or even remotely proved. With sexual assault and movie producer, a case for relevance is obvious, because the position gives opportunity for further events, and an effect e.g. on what-young-actress-is-hired-why is plausible. With Kavanaugh and the Supreme Court, the case is far weaker: Not only is there no reason to assume that he would have more opportunity on the Supreme Court than in his current position (if at all*), but he does not have an adult record of such behavior—the alleged incidents that have come to my attention have been in the early 1980s, when Kavanaugh was still a teenager.

    *I am not aware of what opportunities, obstacles, whatnot, might be present, but the rest of the Supreme Court is bound to be safe. There might be some possibilities among assistants and similar, but nothing comparable to the opportunities of a movie producer.

    A possibly relevant angle is that of moral integrity: Someone with a known behavior of questionable ethics, morals, whatnot might be disputable, even when no questions of ability and performance are present. For instance, a top-notch accountant with an embezzlement conviction is not an ideal candidate for treasurer of even the local PTA. Similarly, with high offices, we want people who are likely to not e.g. confuse private and public funds, make favorable decisions in exchange for bribes, change regulations in a manner that benefits them personally (for the sake of that benefit), … While I would tend to err on the side of caution in this area, sexual misbehavior is lesser indication than e.g. financial misbehavior when it comes to public office. (Excepting the vulnerability to extortion; however, here we have a Catch-22: Either the misbehavior is known and not useful for extortion, or it is not known and therefore not a possible criterion.) Further, the judicial branch is likely less susceptible than the executive branch.

  4. Even when accusations were raised in a timely manner, some type of “statute of limitations”* must be present:

    *An older post has some discussion of criminal statutes of limitation.

    Firstly, if an accusation is “escalated”*, or even repeated, after too long a time, the accused is put at a severe disadvantage, because his opportunities to defend himself are worsened. For instance, he might have had a witness that has since forgotten too much, moved, or even died; unknown witnesses that might have come forward after two weeks might not even realize that they are relevant when the event took place two or twenty years earlier; he might have had phone records that are now long gone; he might himself be too uncertain about the details to give a plausible statement; etc. (This is even worse when no prior accusation had taken place, and the innocently accused might not even know what he was doing at what time all those years ago. A prior accusation at least increases the chance that some memories are present and that some preparations were taken.)

    *E.g. in that an accusation is raised in a social circle today and brought to the police two years later, or that the police originally dismissed a charge without deeper investigation and the accusation is repeated in a public forum decades later.

    Secondly, the individual changes over time.* He matures, develops a better feel for what is and is not acceptable, gains greater insights into ethics, becomes better at withstanding peer-pressure, sorts out emotional problems, … In the case of a teenage boy, even the physiological maturation of the brain is not yet complete. When enough time has passed, judging someone over past events is not that much different from judging him over something someone else did. When it comes to extremes such as whether a Presidential candidate, once long ago, actually inhaled marijuana or just smoked it, something is seriously wrong.

    *Here I can give myself as a case in point: While I have never done anything like what Kavanaugh is accused of, I was quite “handsy” in my early teens. Not only have I stopped such behaviors as I grew up, but I cannot even, today, understand what motivated me. My best speculation is that it was more “attention getting” than something truly sexual, combined with a yet undeveloped understanding of issues like personal borders (in turn caused by some mixture of youth, family problems, and “spectrum” issues).

    Thirdly, society and what is considered acceptable also changes over time. If we take an old man and go back to what he did sixty years ago, we might find things considered perfectly normal back then—but condemned whole-sale today. Consider, as extreme examples, the horrifyingly flawed concept of microaggressions or stories of how even asking someone out has been considered sexual harassment. Or consider objections against various pre-abolition U.S. Presidents because they, perfectly normally at the time, owned slaves. Or consider how prostitution was relatively recently legal in Sweden, is now forbidden, and how it can be assumed that any politician caught out having visited a prostitute when it was legal will be severely condemned post-facto. If older events are to be considered at all, they must be considered in the light of the norms at the time they took place.

    As a special case of the above, there might also be some need to consider more “local” norms, e.g. those of a sub- or youth-culture. While such norms should be called upon only with caution, they can often shine a different light on something or make it less severe, especially when all the involved parties belong to the same group, follow the same norms, and have the same expectations.

Excursion on statutes of limitation and the changing individual:
One way to handle this complication would be to say that we are only ever culpable for what we did in the previous third* of our lives. What happened before is beyond the reach of the law, societal condemnation, the ire of a spouse, the complaints of a parent, … A human aged six is only responsible for what he did in the last two years, aged fifteen only for the last five, aged sixty only the last twenty, etc.

*The exact fraction and the exact modalities are open to discussion.

Such a system simultaneously reasonably protects from the sins of our prior selves, ensures a reasonable remainder of culpability, and takes the different rate of change as we age into consideration. There might, however, be some complications to iron out. Consider e.g. someone who commits a crime at twenty and is incarcerated with a multi-year sentence at twenty-nine: Should he be let out when thirty? This would be consistent with the idea, but might lead to problems like some perpetrators not being prosecuted due to pointlessness, effectively shortening the statutes-of-limitation phase below the intent. (A possible compromise might be to set some lower limits or proportions for sentences that are exceptional to the overall system.)

Excursion on the Clintons:
Some of the accusations against Bill might be open to similar arguments, although the shorter time-frame must be considered. The Lewinsky affair* might even be something best considered a private issue between her and the Clintons. Others against Bill and all (?) against Hillary are not or only weakly affected, e.g. because of more-or-less immediate action, delays caused by lack of knowledge, the use of formal investigations instead of public-opinion courts, and the greater relevance to the job.

*Per se: Any ensuing cover-ups and later manipulations are a different matter. (My memory is much too vague to make a definite statement.)

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Written by michaeleriksson

October 6, 2018 at 7:19 pm

American Vandal

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I have just watched the first season* of “American Vandal”—another proof that it is possible to do something original and worth watching even today, and that there is no need to just dust of every old franchise**, hoping that the “brand value” outweighs the lack of quality and originality.

*Whether this terminology reflects reality remains to be seen. From the closed character, I suspect that the series will remain at one season, and considering its shortness, it might be better labeled as a “mini-series”.

**Something I have spoken negatively of in the past, e.g. in [1].

It is not the best made series ever—not even close. However, it does bring something new to the table, and it does so while giving food for thought. This most notably in the area of due process, but also concerning privacy, the benefits and dangers of social media, press ethics, and organizations sweeping their problems under the rug—all areas where I have considerable concerns about current developments. (Cf. a number of older posts.) Some of these areas are discussed below.

!!!Here be spoilers!!!

A particular disturbing part, obviously, is how one character, Dylan, was originally expelled from school based on scant* evidence, by an entity that served as judge, jury, and prosecutor in one, and how his “conviction” was almost a foregone conclusion based on his previous behavior**. While this example is fictional, it does reflect common practices in the U.S., where there, for instance, have been cases of colleges expelling people under similar circumstances, often in word-against-word situations, using “preponderance of evidence” (or another too weak standard). Considering the effects of a college*** expulsion and the damage than can accrue through e.g. social media and reputation damage in today’s world, the consequences are potentially horrifying—often far worse than the alleged crime or even “crime”. When it comes to actual crimes****, it is vital that proceedings follow a level of due process, rights of the accused, whatnot, that is comparable to that of a real criminal trial—better yet, leave this to the actual justice system, and then make decisions, e.g. regarding expulsions, based on what the results of the justice system were. Even when no crime is present (e.g. with a pure behavioral matter), it is vital that the (real or virtual) roles of judge, jury, and prosecutor are sufficiently separated from each other, and that the “accused” is given sufficient opportunity to defend himself.

*The only evidence against him that was not, at best, circumstantial was a testimony by a witness, which was offset by conflicting testimony by an alibi giver. Neither witness had any obviously superior credibility.

**Dylan was a highly problematic student, and I do not rule out that his past behavior might have been enough for an expulsion. However, he was, as eventually transpired, innocent of the vandalism for which he actually was expelled.

***However, note that the series deals with a high-school expulsion. This is bad enough, but less disastrous both because there are more opportunities to gain back ground and (usually far, far) less money invested at the particular school. To boot, people who are expelled from high-school are rarely among those likely to do well in college, implying that the career effect is considerably smaller: We are still typically talking unemployment and/or low-wage, dead-end jobs, considering the low value of a modern high-school diploma.

****As was the case here, specifically the spray painting of 27 cars with stylized penises.

A somewhat tricky question in the series is that of false accusations—paralleling the considerable problems in the real world with especially, rape, child-abuse, and domestic-violence accusations: While Dylan was originally expelled and facing (real) criminal and/or civil charges*, the “witness for the prosecution”**, who seemed*** to have lied outright, did not face such repercussions—his sole fear being a beating from Dylan. It is possible that any attempt at action against him would eventually have failed due to problems of proving intent; however, it appears that an attempt was not even made. Similarly, in the real world, women who make false rape accusations are often let go with a slap on the wrist, while their victims could have faced many years in jail—and often see their lives ruined even when acquitted. Under such circumstances, there is a severe risk that the system is abused e.g. to maliciously hurt personal enemies who have not committed a crime.

*He was proved innocent by video evidence before the real trial in the real justice system started.

**Whether he should be considered the accuser or just a witness can be disputed, but from the details of the show, the difference is likely uninteresting for the current discussion. (However, in most other cases, witness and accuser are quite different things.)

***At least for some time: A later hypothesis involved a suspect with some similarity in looks, and assuming, as was claimed, that the perpetrator wore a hood, an honest mistake is conceivable. However, this hypothesis only arose some time after the “acquittal”, was not necessarily presented to the school, and certainly remained a hypothesis. To boot, the witness had originally spoken with considerable certainty. (I do not recall the exact formulations used, but it was on the level of “I saw Dylan do it”—not e.g. “I saw who did it; he looked like Dylan”.

As a counter-point, we have the question of witness pressure: The “witness for the prosecution” later spoke of having been under a lot of pressure to say the right things. If that was the case, and if he modified his statements to comply with the pressure, someone of his age should be seen in a more forgiving light. However, we then have to condemn the proceedings even more: Witnesses are unreliable enough as it is and when they additionally face pressure to give the “right” answers, testimony is worth very little. It is vital that witnesses are induced to say what they actually remember—not directly or indirectly moved to say what the prosecution wants to hear. Here we again see the importance of dividing the roles of the “court” appropriately, so that the prosecution is neither judge nor jury. Further, where there is a prosecutor to exert pressure on witnesses, there must be a defender to press back. In this specific case, we had the additional complication that the witness was another student, and therefore in a dependent role visa vi the school staff making the decisions, implying that thoughts like “I must keep Mrs. X happy, or she might give me a poor grade!” could have crossed his mind. Such problems could have been alleviated by hiring external specialists to handle the investigation and decision. Consider as comparison a real trial where a witness is employed as a house-keeper by the DA handling the case…

The problem of organizations sweeping their problems under the rug, has probably not featured in my previous writings to any notable degree. A few words on the topic*: There are many types of problems that can arise when there is too little distance, objectivity, self-criticism, whatnot, present in how an organization deals with complaints and internal problems. The most obvious is that it might be so keen on preserving its imagine towards the outside world that it deliberately does not address problems in the appropriate manner. However, we also have to consider constellations like a superior receiving a complaint about an employee with whom he has developed a friendship, an investigative board containing people with personal ties, a biased treatment due to the feeling that that the target of a complaint is “one of us” and the complainer is “one of them”, the target of the complaint being able to influence the proceedings through inside connections (e.g. through giving someone false verbal information that the complainer never even knows of, let alone has an opportunity to refute), etc.

*Since I am filling a deficit, I will remain mostly abstract. If we look at events in the series, I can point to e.g. the illegal failure to upload certain complaint acts to a public server, an attempt to shut-down an independent investigation/documentary, when it threatened to put the school and/or some staff members in a poor light, suspensions (detentions?) being handed out for potentially (depending on interpretation) having critized the principal, …

A particular disastrous example from my personal experiences, where problems were almost guaranteed and remedies highly unlikely due to a massive conflict of interest: Being faced with a blatant breach of contract, I simultaneously sent a bill to the perpetrator and contacted its trade association with a complaint and a request for intervention. In a horribly misguided system, this trade association on the one hand provided arbitration, certifications of quality, and similar, on the other legal service to its members. The result was that the perpetrator took the bill, sent it to the legal branch of the trade association, which immediately gave the opinion that the bill was void and all related claims baseless*—and thereby tied the hands of the rest of the organization with regard to my complaint and any chance of intervention—if another branch had given support to my complaint, it could have caused severe credibility problems for the legal branch, had I taken legal action to receive payment.

*Beware that such “opinions”, by their very nature, have no actual legal value, give little information on the true estimation of the involved lawyers, and cannot, seeing that the lawyers at this juncture only know a fraction of the information, be a complete legal evaluation. To act in his client’s best interest, a lawyer will have to officially side with said client in a near blanket manner, even when the facts at hand, relevant law, and his actual opinion would go in the other direction. There are cases where the situation is so clear, that he is forced to chose another first official stance than a (real or metaphorical) “not guilty”; however, this is rare. The result is that irrespective of how well or poorly founded the complaining party’s claims are, the legal branch would have started with a blanket rejection, and the hands of the trade association would be tied. The complaining party is, almost by necessity, wasting time by approaching such a trade association.

Correspondingly, any organization who wants its complaint management to be taken seriously, must take steps to minimize such problems (a complete prevention is likely not possible). This could include e.g. making sure that there is a special complaints branch, that supervisors/investigators/whatnot with too strong ties to the target of the complaint recuse themselves, that external helpers are brought in (especially when larger amounts of money are concerned, the heads of the organization are involved, or the matter is otherwise unusually important), … While the presumption of innocence must be preserved in terms of treatment and consequences, the potential guilt must also be kept very clearly in mind during any investigation.

(A more specialized post on the misbehavior of German governmental institutions and their blanket rejection of any type of criticism might follow, especially with an eye on the IRS, the incompetence of which is currently again costing me a load of time. It appears to be a universal law that the more incompetent an organization is, the less willing it is to accept criticism.)

A few words on the final scenes of the series:
After his acquittal, Dylan goes through a brief high and then faces repeated disappointments, including that a very hostile* teacher, who had pushed heavily against him, and even (very incorrectly) attributed the crime as directed mainly against her, personally, failed to give the type of apology that he had pictured. He now misguidedly does commit an act of vandalism against her, by painting a penis on her drive-way.

*Her hostility is not unreasonable, considering their previous history.

It follows a brief sequence on how the expectations of others, the roles we have been pushed into, and similar, can lead to poor decisions, even deliberate attempts to fulfill negative expectations—Dylan thought that others saw him as a villain and correspondingly behaved like a villain. While this is likely only partially true, there are at least two thought-worthy aspects to this issue. Firstly, that we should be careful with our expectations of others and the effects they can, at least sometimes, have. Secondly, that we should beware of potential influence from others through expectations, that we should deliberately counter such expectations (at least when negative), and that we ultimately must take responsibility for our own actions, even if they arose under such influence.

In a disturbing parallel to a recently discussed real case, it is claimed that the police brought him away in handcuffs in the middle of the night, over something as trivial* as a this. Now, I do not know whether this could have happened in the real world; however, I re-iterate how important it is that law enforcement act in proportion to the crime. Not only could this easily have waited until the following morning, it might even have been prudent to just ask him to come to the station at a given time. While I do not agree with the practice of some law enforcements** of letting all crimes below a certain level just slide, this is one case where the main issue might even be considered a civil matter between the two: He pays damages, apologizes, promises to never do it again, and we call it a day.

*To be contrasted with the original vandalism, were a figure of a hundred thousand dollars of damages was mentioned. In the act he actually committed, the cost of cleaning or repairing the drive-way is unlikely to exceed a few hundred dollars, possibly being far smaller.

**Including, in my impression, the German police.

Written by michaeleriksson

May 30, 2018 at 5:26 am