Will Presumption of Innocence Be The Next To Fall?

Why Pennsylvania Attorney General Josh Shapiro decided it was his place to get into the mix is unclear. Maybe it was just too easy to hop on the Woke Train and get a free ride. Maybe he didn’t want to be left out of the “coalition” of states’ attorney generals who couldn’t manage to clean up the mismanagement (like the thousands of rape kits that go untested for years) of the handling of sex offenses in their states’ criminal courts, and found it easier to grab at low-hanging fruit.

Attorney General Josh Shapiro, together with the Attorneys General of New Jersey and California, yesterday led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the U.S. Department of Education calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972and weaken protections against sexual harassment and violence for students.  The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.

That the new rules would be a “significant departure” was pretty much the point. The irony of “longstanding” meaning starting in 2011 when they were invented out of whole cloth by a bureaucrat eludes Shapiro. That inclusion of some basic due process “leaves campuses less safe,” however, isn’t merely the repetition of the vapid slogan of sad advocates, but a threat by attorneys general.

The “coalition” submitted a lengthy comment of 71 pages, which suggests they have a bit of extra time on their hands having managed to fix all their state issues so that they can now focus on federal rules. But the thrust of their arguments coming from AGs isn’t merely childish, but disconcerting. They are arguing against the value of due process, fundamental fairness for the accused male student. But slipped in there is an argument rarely seen, and never by an attorney general. There should be no presumption of innocence.

B. The Presumption of Non-Responsibility Improperly Tilts the Process in
Favor of the Respondent.

The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. §§ 106.45(b)(1)(iv) & (b)(2)(i)(B). The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation. Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation. The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard (which we contend is not appropriate). The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment.

Accordingly, there should be no presumption regarding the respondent’s responsibility.

In the scheme of sophistry, this is pretty big. The presumption of innocence, or “non-responsbility” as it’s euphemistically called here, is little more than the flip-side of the burden of proof. If the burden isn’t met, then who wins? But there is an additional prong, that the “winner” isn’t ascribed the title of “rapist” who beat the rap, even though that’s pretty much the way it goes anyway.

The presumption has long been reduced to a legalism in the mind of the public, that the cops wouldn’t arrest someone if he wasn’t guilty. That prosecutors wouldn’t prosecute someone who wasn’t guilty. To many, the burden is on the perp to prove his innocence, or he’s guilty but got lucky. The concept of it being a bit problematic to prove a negative isn’t one that people tend to spend much time thinking about. Why bother when everybody knows the guy is guilty?

But the argument proffered by the attorneys general is shockingly weak:

The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate.

This is a non-sequitur. The argument, which no one makes but certainly should, that the criminal law presumption should apply, as this is no “grievance procedure” but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes, compels the presumption to apply. That it’s not, at least as argued by the AGs, a criminal case has no rational bearing on whether the presumption should apply.

The question, at best, would then turn to whether the purposes for the presumption apply to these proceedings as they do to criminal cases. They can’t be bothered to make a cogent argument, but then the sad advocates to whom their comment is really addressed won’t complain about their failure of logic.

But the fact that this comes from attorneys general, whose responsibility bears some relation to constitutional rights as well as the jurisprudence upon which they exist, raises a secondary, more nefarious problem. They are arguing throughout their letter, often disingenuously such as when they ignore the caselaw requiring hearings and some means of confrontation when facts are in dispute, against the basic premises of due process.

The AGs are arguing that due process is an evil that should be eliminated on campus because it makes woman “unsafe.” Even worse, they are arguing that an accused male student shouldn’t be presumed innocent of rape before the burden of proof, whatever that might be, is sustained. The ploy, that someone can be accused of rape but “considered neutrally” is absurd, and they, as lawyers, certainly know this.

Just as due process has been vilified in this process to assure the men lose, the presumption of innocence is now the target of the AGs’ rhetoric. Having already reduced due process to the enemy of women with astounding success, is the presumption of innocence now in their crosshairs? It’s not just the impact on the woke psyche on campus, but as legal concepts are undermined in the mind of the public, it filters through the system. Won’t that be convenient for the AGs?

27 thoughts on “Will Presumption of Innocence Be The Next To Fall?

  1. Fyodor

    The presumption of non responsibility or non liability is also part of civil proceedings. The party seeking relief almost always has to make a showing that they’re entitled to it.

    1. Skink

      No one, well almost no one in this here Hotel knows that at least part of what you say is accurate. Thank you for bringing irrelevancy and immateriality into focus for the judges and lawyers wandering the lobby in a lost manner.

  2. DaveL

    But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate.

    Those would be the grievance procedures regarding “sexual violence” which impact the safety of students? The ones that merit the intervention of state Attorneys General? Because you certainly wouldn’t want people to get the impression they were criminal trials by another name. I’m sure you’d do the same thing when it comes to plagiarizing essays and cheating on tests.

    1. SHG Post author

      You (inadvertantly, I think) raise an interesting distinction: most normal college policy violations, plagiarising or cheating, are “victimless” in the sense that they pit one student against another. They make for an inapt comparison.

  3. Rxc

    Better that 100 non-rapists/harrassers/creeps go to jail than 1 rapist goes free. We know that the men are inherently guilty of being irredeemable, deplorable sexists, and that, alone, justifies their punishment.

    Their very existence makes them guilty.

  4. Thrown_out_of_the_Kremlin_for_Singing

    The “presumption of innocence” is already a joke in USA. Look up: “Trial penalty”. I could describe it at length, but I have zero doubt that SHG already knows all about it and can write a much better blog post about it than I ever could (hint hint, Mr. Greenfield).

    1. SHG Post author

      What are the chances in the 10,000+ posts here, I haven’t already written about it? But trial tax (not penalty) is not the problem. Now, if only there was a way you could find out what I’ve written instead of wasting my bandwidth with this crap…

          1. Thrown_out_of_the_Kremlin_for_Singing

            Did the studies take into account, not only the additional time per count which judges typically impose for going to trial and being convicted, rather than pleading guilty, but ALSO the additional superseding charges prosecutors often bring as a punishment for refusing to plead? An accused drug-dealer who insists on going to trial finds himself also charged with domestic violence and money-laundering, which the prosecutor then “generously” offers to drop in exchange for a guilty plea to the original drug-dealing charge. When you multiply the additional charges by the additional time-per-charge you face for going to trial, you get some big differentials.

            1. SHG Post author

              Ever notice how a post can be about one thing, then some random shit-for-brains decides to go down his own rabbit hole, and then wants to hijack the comments to be all about defending his simplistic shit for brains nonsense when told he had gone orthogonal, as if the original post never happened and it’s all about whatever idiocy the shit-for-brains came up with? I have.

              Have you considered that maybe all the other lawyers here don’t really care too much about whatever popped into your head? Walk away.

            2. Thrown_out_of_the_Kremlin_for_Singing

              You say you are a practicing lawyer? And you post comments like the reply you posted to this one? For all you know, the judge presiding at your next case could be someone I play golf with. I think your mentors might advise you to conduct yourself in a more lawyerly fashion in a public forum which includes your name. Your partners, too. Of course, I’m only a random shtt-for-brains, so maybe you don’t need advice on the importance of ordinary courtesy and professional conduct from me. But your mother should have given you some.

          2. LocoYokel

            I honestly have never noticed the search box, the butthurt button overshadows it. I used google to find my links. Thanks for highlighting the function.

  5. Anthony Kehoe

    Why even have a “proceeding” at all? Wouldn’t it be much better to just have a complaint procedure and go straight to “burn the witch”? According to the AGs, that’s the only way you can protect women. No-one makes false claims, and it’s not criminal anyway. Just an unfortunate calorific outcome.

  6. RedditLaw

    Nineteen Attorney Generals? That sounds pretty bipartisan. Maybe we should listen to them.

    . . . Looks up signatories . . .

    Huh, all Democrats, even the ones from North Carolina, Kentucky, and Iowa. Well, knock me down with a feather! I am genuinely surprised that some of the usual suspects are missing. Where is Tish James and Maura Healey? Did they not make the wokeness quotient?

    Keith Ellison has a beautiful signature, though. He sounds like a heck of a nice guy, Mr. Greenfield.

      1. RedditLaw

        There is only so much room at the top of the letter for state AG seals, and Shapiro, Becerra, and Grewal hogged the space up there. This is probably a microaggression against women attorney generals.

        In fact, it’s sixteen men and three women. I’m triggered. Someone call the attorney general Title IX coordinator!

        1. SHG Post author

          Frankly, I hadn’t noticed that Tish and Maura hadn’t signed on, but after you pointed it out, it seems very odd. I wonder why.

  7. szr in helmet

    After reading Mr. Shapiro’s entire document, I’m genuinely puzzled by the fact that it never recognizes the contradiction between advocating: (1) against a presumption of non-responsibility; and (2) for a preponderance of evidence standard.

    Maybe Mr. Shapiro should have argued for an irrebuttable presumption of responsibility instead?

    1. SHG Post author

      If a side has the burden of proof, then the other has the rebuttable presumption in its favor. There’s no other way it works, contradictory sophistry notwithstanding.

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