Any argument on any subject prefaced with “As current and/or future lawyers”: bound to be obnoxious. And bad.
Aha! A challenge!
Actually, no, I’m not writing this just because I saw the post above but because a couple of people, including Michelle in this post, have said some things about #MooreandMe and the way the legal context structures our way of thinking about stuff and whether it’s helpful, and I found those things interesting. AS A LAWYER. ;)
One thing is the confusion that Michelle points out between the artificial legal test of the presumption of innocence (‘innocent until proven guilty’) with some kind of moral principle. Of course many people may hold it as a moral principle that the law should treat people as innocent until proven guilty. I can totally respect that. (And, you know, just in case anyone is confused about this, I have not heard anyone involved in #MooreandMe suggesting that the law should not treat Julian Assange as innocent until proven guilty. Being treated as innocent until proven guilty does not mean being immune to investigation and prosecution. Being treated as innocent until proven guilty does not mean being released on bail with no conditions. Being treated as innocent until proven guilty does not mean being immune to extradition.) But no, as Michelle says, this is not about people saying that the legal system should treat suspected rapists as innocent until they’ve been convicted. This is about people saying that people should treat suspected rapists as innocent until they’ve been convicted.
Which, uh, no. The presumption of innocence is a presumption. In legal terminology that means ‘a thing that we’ve decided to automatically assume until evidence disproves it’. It’s a working tool designed for a specific purpose within a closed and artificial system. A very very important and valuable one, but only inside that system. Like the way it may be very very important and valuable for people at an Alcoholics Anonymous meeting to begin by saying ‘I am an alcoholic’ but it wouldn’t make sense as a thing to say at the beginning of a business meeting or a dinner-party.
The reason for the presumption of innocence in the criminal law is that, in that system, the full coercive power of the state is ranged against a single private citizen. A criminal prosecution is about the most threatening thing a democratic state will knowingly and deliberately do to a single individual. So the law creates artificial rules to restrain that power and reduce the risk of its being deployed unfairly. The state deliberately creates an unusually large obstacle to its own efforts. It says ‘One of the rules of this argument is that I only get to win if I eradicate almost any doubt that I’m right; if you think I’m probably right but you aren’t sure, then I lose’. And the very fact that it has the power to set the rules of who wins the argument shows why it’s important for that restraint to exist.
Those circumstances don’t exist in a conversation between two private individuals. Sady Doyle may be pretty awe-inspiring, but she is not going to actually deprive you of your personal liberty. She is not so powerful that she is actually in control of the rules of the conversation. There’s no need for an artificial rule to restrain her power.
Michelle mentioned one disingenuous thing about trying to use the presumption of innocence in an ethical / political conversation among private people, namely that the user is trying to give the impression of being impartial when what they’re actually saying is ‘I think we should automatically disbelieve person A and believe person B until such time as there is overwhelming proof that person A is telling the truth’. As various people have said, feminists tend to believe people who say they’ve been sexually assaulted rather than people who say they’re lying. Some do that as a matter of principle, to counteract the overwhelming tendency of the rest of society to do the opposite. Others do it because they know the horror that people go through when they make allegations of rape and find it hard to imagine anyone choosing to run that gauntlet without a good reason. But even if you really want to be impartial, assuming the accusers are lying is not the way to do it.
But here’s another reason why citing the presumption of innocence in this particular discussion is a problem. Because it’s something that happens a lot in discussions about rape and very little in discussions about other criminal offences. I worked in a criminal court for nearly three years. People do no adopt the presumption of innocence when they think about criminal cases. They don’t assume that the defendant is innocent until they hear a verdict that says otherwise. Like I’ve said above, there’s no reason why they should: it isn’t a rule that’s designed for everyday life. People just form opinions based on the information they have. If they’re cautious they may say ‘I’m not sure, I’d like more evidence’. If not, they may say ‘I think this is what happened’. But they don’t say ‘I assume he’s innocent, because, you know, even though there are two witnesses against him and maybe some other evidence, the jury hasn’t actually delivered a verdict yet’. Except when it’s rape, because, um, rape-culture.
So that’s the ‘presumption of innocence’ thing. There’s also this post, asking whether in this conversation we’re wrongly assuming that the criminal justice system is the best way of dealing with allegations of rape. AS A LAWYER, my first instinct is to say that the problem is not with the system but with the people who make it run. If, as in England and Wales (Scotland is a separate jurisdiction that I don’t know about), rape cases are decided by juries, verdicts are going to reflect the fact that our culture teaches us to dismiss, disparage, and disbelieve victims of rape. That post at One Tiny Corner says ‘Sady posted a stat this morning that noted that something like 6% of rapists are ever prosecuted successfully. It seems to me that that’s not a broken system - that’s a working system. That’s not an anomaly. It’s doing something, it’s just not doing what we think it’s doing.’ Well, yes, I guess that’s right. Because, just as democracy is actually designed not to produce the best government but to produce what most people think will be the best government, so the judicial system is designed not to produce objective justice but to produce what most people think is justice. So if most people think justice in rape cases is usually acquittal, the system will usually acquit, and that’s the system doing what it’s supposed to do.
So the options are (a) change the system, or (b) change rape-culture, or (c) what the One Tiny Corner post suggests: find other mechanisms to deal with allegations of rape. And in fact this isn’t something lawyers should find difficult. The legal system is not meant to be the only way to deal with things. Part of my job is to tell my clients when they should consider resolving disputes without going to court. Especially when going to court isn’t the best way to achieve what they want. And court is demonstrably not the best way to deal with rape. As the post says, ‘Isn’t there a better conversation to be had, about what would “justice” mean for women [I’d add ‘and others’ — J] who are raped? How do we protect each other? How do we prevent rapes from occurring in our communities without enlisting the aid of the corrupt State? What kinds of organisation would that require?’
I’m in no position to even begin to answer that. In fact I’m one of the people least able to do so, because not only am I a man with virtually no experience of rape or sexual assault, I’m also… a lawyer. And when that’s your training and your work, it also becomes your default way of thinking about solutions. So although I can think of a couple of things, they’re still fairly law-related. For example, I know there’s some evidence in support of restorative justice, though most programmes seem to rely on reporting to the authorities as a starting-point, thus failing to address one of the biggest obstacles. There’s also the possibility of using the civil courts, where the burden of proof is lower, the legal protections for the defendant are lesser, and the rape-survivor is more in control of the process; but you can’t rely on getting public funding to pursue a rapist in the civil courts, and it still has many of the disadvantages of the criminal court process. If anyone’s going to think of better solutions it will be non-lawyers and in particular it will be survivors themselves and their immediate supporters. The best I can say is that there are lawyers who are willing to listen.