© 2020 Charles A Steele
This morning’s talking head said that: “We dodged a
bullet.” He was talking about the threat to the American Democracy posed by the
attempts of the trumpist faction of the Republican party to set aside the
results of the elections. For those who have been in a cave for the last few
weeks or who might be reading this sometime in the future, the talking head was
discussing the public opinion campaign to delegitimize the 2020 election;
filled with uncountable allegations, punctuated with spurious law suits and engaging
in directed intimidation of certification boards and state legislators.
Although these attempts are still on-going, they
have gained no real traction. In almost all of the more than 30 cases, no valid
evidence was presented. In no cases, was evidence of significant voter fraud
presented. So, we may have dodged a bullet, but we need to realize that the gun
is still loaded.
Although most of the plaintiff’s legal council lacked
the courage to present false evidence before a judge, that didn’t stop them
from flooding the news and social media outlets with the allegations. And quite
understandably, a large portion of the trumpists believe the allegations. So,
it was asked why do they believe these lies when there was no proof offered?
The answer is actually quite simple: to the average person, accusations have
become proof of wrongdoing.
This
is not a Republican vs Democrat issue. We are a point in society where we must
decide between two principals. The first is that all crimes should be punished
in the interest of public protection. The second is that the defendant should
be presumed innocent if proof to the contrary is not compelling. This is not
the first time that this choice has been presented nor is it the first time
that well-meaning people have disagreed.
In
my own biased and personal opinion, I think it comes down to a confusion
between confirmatory and corroborative evidence. Confirmatory evidence is that
which proves a theory of the case. A fingerprint that matches a suspect, a
bullet that matches a gun barrel. Corroborative evidence supports the theory.
If the theory is true, then it would be expected that the evidence is as shown.
The suspect was seen with red paint on their hands and red was used to smear the
wall. As an aside I caution my students to avoid the term “Circumstantial
Evidence.” All evidence is a result of the circumstances of the case.
I
ask my students if corroborative evidence is sufficient to convict. Most reflexively
say “no.” Then we discuss famous cases like the Casey Anthony and Richard Crafts
prosecutions where all of the evidence was corroborative. Then we begin to
realize that when there is enough corroborative evidence, a single reasonable
conclusion can and sometimes has to be reached.
So
now let’s go back to the accusations being made. If the charges were true, we
would expect the accusations to be made. Although they are not confirmatory
proof, they do take on the reasonable appearance of corroborative evidence. And
again, if there is enough corroborative pieces of evidence presented, then a
reasonable person can conclude that there is only one reasonable conclusion.
It
all comes down to the question of credibility. If the vast amount of corroborative
evidence is credible, it carries a great deal of weight. If the evidence is not
credible it needs to be ignored. So, how do we determine credibility. You want
to say we have a trial don’t you. Common … I dare you say we take it to court.
From
the perspective of the general public we abandoned that benchmark a long time
ago. Consider the discord and violence we have seen in the last few months. When
a black man dies at the hands of police, two different instant assumptions are
made by opposing groups. The first is that the deceased is an innocent victim of
racial violence. The second from the opposing side is that the deceased was a
criminal resisting arrest and that the police are under unfair scrutiny. At the
risk of alienating both camps, each group has undoubtedly been correct at one
time or another.
But
neither camp waits for the confirmatory evidence. The event itself corroborates
their view of the case. That is sufficient. Having made that determination with
the implications that come with it, they are unlikely change their assessment. (See
my previous posts)
In
addition, it should be remembered that in the minds of many a great social evil
is being fought. They may not agree on what that evils is. And frankly, the best
evidence is that both truths are real. Therefore, the details of each example
are not important relative to the greater truth and time is of the essence. So,
every accusation is a rallying call that needs to be heeded by those supporting
the “good fight.” The accusation is sufficient to corroborate the theory and is
therefore sufficient proof.
This
situation is exacerbated by a strong social messaging that the courts are not
there to protect people. How often have you seen statements to the effect that
the criminal justice system doesn’t dispense “justice,” it just protects the
status quo. So, it is reasonable that people turn to other protectors.
Consider
the case of Salamon
and Moyses. Salamon and Moyses were brought before the inquisition in Rimini
around the year 1400. They were charged with using heresy to seduce Christian
women into having sex. Specifically, they were said to have told their victims
that fornicating with Jews wasn’t a sin. [1]
By today’s
standards the case may seem trivial, but remember that at the time this was a
serious situation with serious and potentially damaging consequences. Such an
encounter could leave a lasting tarnish on woman’s reputation and leave
psychological scars on her sense of self. These are the same injuries that
victims of sexual assault today must contend with.
Certainly
just like today, one could ask if the women indeed gullible victims? Could they
not just as easily wanted to have sex, choose to drink so they can a flimsy
justification that they drank too much, so they don’t have to feel guilty about
it and then simply regretted it later? Without a trial to root out the truth
there really isn’t any way to know. For the women in Late Middle Ages Rimini,
they contended that they were tricked and most importantly they would not have
participated if they understood all of the consequences. So, there is no doubt
that they regretted the encounter.
Unfortunately
for these women, as the Middle Ages gave way to the Renaissance, sexual morays
of the general population were far from puritan. Continuing the parallel with
today. The women could expect no protection or remedy from the civil courts for
any kind of consensual sex.
But the
women claimed the men invoked a theological teaching to confuse and befuddle.
[1] The matter could therefore be brought before the inquisition where the
accusation was often enough proof and punishment for heresy could be very
harsh. This situation is parallel to what we have seen on college campuses in
recent years.
Today,
instead of spurious religious arguments we have drugs and alcohol. In this
state of unreason, a woman has sex with a man she says she would not have if
she were clear minded. It doesn’t matter if she let herself get drunk because
she didn’t want the responsibility of her decision or if she was deliberately
incapacitated. Either way the psychological damage is real.
Unfortunately,
the courts do not treat a woman who potentially has gotten willfully drunk or
high as a victim. But at least some of them are victims and need to be
protected. In 2014 this gave a birth to a new inquisition spurred on by public
opinion [3]. People supported this alternative adjudication because a lower burden
of proof was needed to protect the victims who couldn’t receive protection from
established criminal justice system.
In 2017
“#MeToo” became a firestorm across news and social media. The slogan “Believe
Women,” also gained popularity in strong part to the allegations against Harvey
Weinstein. From the perspective of feminists, it was intended to assert that
women are as trustworthy as men. It should not be assumed that every woman
making an allegation was motivated by retribution. [6]
Somewhere
along the way, during the rhetoric of Tara Reade’s allegations against Joe
Biden, the slogan mutated into “Believe All Women.” [6] This new and deadlier
slogan became a weapon to be used against objectivity. Any doubt or implication
that an allegation was false was seen as an attack on the very idea of
protecting women.
Even the
famed civil rights lawyer Alan Dershowitz said in gathering at the Purdue
University Northwest’ Sinai forum that he was told by friends not to fight a
false allegation levied against him. “Take, one for the team,” he said he was
told to protect the women making truthful allegations[1].
While this
was occurring Title IX empowered, and in fact compel, the colleges to
investigate and punish these crimes. Here it is a violation of the institutional
code of conduct rather than of theological code of conduct like in Rimini.
Perhaps this difference is significant.
In the now
rescinded Dear Colleague Letter, schools were told, “Police
investigations may be useful for fact-gathering; but because the standards for
criminal investigations are different, police investigations or reports are not
determinative of whether sexual harassment or violence violates Title IX.
Conduct may constitute unlawful sexual harassment under Title IX even if the
police do not have sufficient evidence of a criminal violation. In addition, a
criminal investigation into allegations of sexual violence does not relieve the
school of its duty under Title IX to resolve complaints promptly and equitably.
… a school should not delay conducting its own investigation or taking steps to
protect the complainant because it wants to see whether the alleged perpetrator
will be found guilty of a crime.” [2] This instruction was applauded in the news and popular media because the
women needed to be protected.
In the
1400s, the need to protect the women was also strong; so much so that the
accusation alone was enough to justify torcher; and confession under torcher would
justify death. Today’s accused are likely to only meet with public dishonor and
expulsion from college. Perhaps the attackers of today are getting off too
easy.
But what
about the innocent men accused? Well the argument is that most women, (Studies and
pundit articles vary from 98% to 60%) [4, 5] level truthful allegations. The
hearing should root out the others. And in fact, this is the premise of a
trial. The evidence is evaluated to root out the truth.
But I am
not describing a trial, I am describing an inquisition. The arbiters of which
were, in most, cases well meant. Unfortunately, these arbiters who are judges
of these inquisitions, were often not trained jurists and investigators. Most were
academics and administrators with little or no legal or philosophical training.
From 2011 to 2017 when the order was rescinded the Department of Education
directed schools to conduct hearing on any case of reported or suspected sexual
assault or harassment. Private entities were directed to conduct a legal proceeding
with real world and life changing consequences. [2,3]
In this
context one could say that the real issue is that even the residents of the
ivory tower of higher education no longer value education itself. If they did,
then the certainly could not support the new perversion of title nine that
replaces formal legal scholarship with a short tutorial. No man or woman who
truly believed in education would feel themselves qualified under these
conditions, to judge complex criminal matters outside the bounds of the justice
system, indeed in preference of the criminal justice system
Of course,
the argument given is that it is not a criminal matter. The title nine
committees only rule on violations of code of conduct of the University. The
inquisition only ruled on violations of codes of conduct of the Church. Both
were created to provide punishment because interested parties did not agree
with the outcome of the civil courts. In this regard, inquisition like the
title nine hearings are not alone. People have sought their alternate protector.
Society
has taken too many liberties with the rule of law, when they find that the burdens
of law don’t allow their desired outcomes. They have been conditioned through
many years of political movements to consider favorable corroborative evidence
as definitive confirmatory evidence. And they have been conditioned to believe
that if enough people agree with them then illegal acts are permissible in the
quest for the greater good.
Unfortunately,
I can only leave this discussion with my view of the cause and no remedy. I see
this incomplete assessment of the facts spewing from camps all across the
political spectrum. And as soon as an issue is brought up that is near and dear
to the listener, they will defend with bitter determination the excessed that
support their camp. Their truth must be protected at all cost.
There is a
greater good that needs to be reached. But decisions based on reactionary
thinking, mob rule and flawed logic are weak. Unfortunately, when they collapse,
they take the needed pieces to support the good with them. Many black men are
subject to racially based injustices. But riots and looting undermine the needed
discourse and further polarize society in to camps for and against.
Looking at
the evolution of the mutation of “Believe Women,” one can see that it was a
deliberate straw man. A logical fallacy that that oversimplifies the argument
to discredit it. This was done for political reasons by Republican pundits to
discredit the Democrats who endorsing the Feminist movements. [6] Ultimately
the “#MeToo” movement has been seen to overreach and faltered.
The
mandatory instructions for the Title IX hearings has been rescinded. While some
vestiges are still hanging on in liberal strongholds, many parts of the country
have now reset to pre-movement levels allowing the same predatory behavior that
spawned the letter in the first place to resume. As a result, there are factions
among “liberal” educators lobbying President-Elect Biden to put the Title IX hearings
back in place or at least elements there of back in place. But the problem isn’t
fixed.
And
now we are sitting with trumpists all over the nation who believe that their candidate
was robbed of an election. Violence has already occurred as a result. It is
likely that more violebce will follow.
As
individuals, groups and movements that make up our nation, we abandoned the structure
that rule of law requires because it was a barrier against our desired outcome.
And we are now in a point where out greatest protections have been threatened
and could yet crumble. Yes, we may have dodged a bullet, but the gun is still
loaded.
References
1.
Kenneth
Pennington, Innocent Until Proven Guilty: The Origins of a Legal Maxim, 63
JURIST: STUD. CHURCH L. & MINISTRY 106 (2003). Downloaded from: https://scholarship.law.edu/cgi/viewcontent.cgi?article=1169&context=scholar
2.
Dear
Colleague letter downloaded from https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
3.
Betsy DeVos
Withdraws 'Dear Colleague' Letter That Weaponized Title IX Against Due Process
Robby Soav 9.22.2017 Downloaded from: https://reason.com/2017/09/22/breaking-betsy-devos-withdraws-dear-coll/
4.
False
Allegations of Sexual Assualt: An Analysis of Ten Years of Reported Cases David
Lisak1 , Lori Gardinier2 , Sarah C. Nicksa2 , and Ashley M. Cote2 Downloaded
from https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2016/03/12193336/Lisak-False-Allegations-16-VAW-1318-2010.pdf
5.
False
reports of sexual assault not as rare as claimed, studies show Rowan
Scarborough- The Washington Times - Sunday, October 7,
2018 Downloaded
from: https://www.washingtontimes.com/news/2018/oct/7/false-sex-assault-reports-not-rare-reported-studie/
6.
Monica
Hesse; ‘Believe Women’ was a slogan. ‘Believe All Women’ is a strawman. The
Washington Post May 12, 2020 Downloaded from
https://www.washingtonpost.com/lifestyle/style/believe-women-was-a-slogan-believe-all-women-is-a-strawman/2020/05/11/6a3ff590-9314-11ea-9f5e-56d8239bf9ad_story.html
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