Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘presumption of innocence

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