As has been noted before, the presumption of innocence, both as a legal rule as well as a principle, has been under sustained attack for a while. It’s now in the direct line of fire following the new Title IX regulations by those who somehow connect it to their contention that it silences victims. This, in itself, is unsurprising, both because the activists have had a tendency to resort to hyperbolic exclamations of disaster with no rational relation to any substantive facts, a fairly normal approach these days, and because they lack a firm grasp of what legal principles mean.
This isn’t a new phenomenon. It’s been a bone of contention for a very long time, Even people who should, one would hope, know better seem at best to be fair-weather friends to the presumption of innocence, picking and choosing where this “technical rule” deserves to be honored and rejecting it whenever one chooses to.
So it should come as no surprise that the attacks on the presumption of innocence have escalated, now that the sacred cow of the “campus rape epidemic,” based on the notion that rape is whatever anyone says it is, before, during or years afterward, is under discussion.
Shiwali Patel worked for the United States Department of Education as a lawyer, so it would be fair to expect her to be a credible source of legal information on the new regs.
I worked at the Department of Education until 2018. I developed policy and guidance interpreting Title IX, the federal civil rights law that prohibits sex discrimination, including sexual harassment, in schools. It’s no surprise that the president, who has bragged about committing sexual harassment himself, has permeated many aspects of the government with politics that dismiss sexual violence, protect perpetrators and shield institutions from accountability.
Why, given her views of Trump’s awfulness, she continued to work under Secretary Betsy DeVos is unknown, as is why she chose to leave in 2018, two years later. But hey, that’s her choice, and she’s entitled to leave the DoE to work for the National Women’s Law Center. But that does not entitle her to deliberately make people stupider about law.
The rules require schools to ignore many reports of sexual harassment and create processes that would unfairly advantage students accused of rape, including requiring schools to start an investigation with the presumption that no sexual harassment occurred. That is, schools will effectively be required to presume that all students who report sexual harassment are lying.
While her first sentence is merely factually wrong, her last sentence is venal. This isn’t a legally difficult concept, that the presumption of innocence means that the allegations against the accused remain unproven. It has nothing whatsoever to do with whether the accuser is telling the truth or lying, or somewhere in between. It has nothing to do with the accuser at all. It is inconceivable that Patel would be this monumentally ignorant of the significance of the presumption of innocence and just making an unfathomably stupid mistake here.
This is intentional. This is the depth to which activists will go to undermine the possibility of affording an accused student minimal due process. Lawyers like Patel are deliberately trying to undermine the presumption of innocence to gain leverage with their useful idiots (for who else but an idiot would buy her nonsense?) against the new regs?
But it’s this same presumption of innocence that protects those who fall into their favored categories from the inquisition they would impose against males accused of sex offenses. When black, female, trans people are accused of crimes, are they not to be presumed innocent? Are their accusers to be presumed liars?
It’s one thing to distinguish the astounding ignorance of the moment to particular individuals, such as Joe Biden deserves due process and Tara Reade is a “survivor” who deserves to be blamed, but that doesn’t apply to anyone else. Small minds seem capable of wrapping themselves around individual carve-outs without so much cognitive dissonance that they begin to grasp their flagrant hypocrisy or have their heads explode.
But when a principle so necessary and fundamental to our jurisprudence, the presumption of innocence, is twisted, distorted and attacked for the sake of undermining the Title IX regs, the same attacks, the same ignorance, will follow and apply to the principle in all its applications.
As might be observed by a sharp eye, a theme has been developing of putatively credible people proclaiming outrageous legal nonsense for the purpose of promoting a personal agenda. Whether it’s to attack Trump or to support a favored group, the end justifies the means, and the means is undermining our foundational legal principles. It may work in the short term and produce the outcome the unduly passionate desperately seek at the moment.
In the long run, this will be the end of any principled legal system, reducing it to sophist nonsense to attack the evil of the moment and achieve whatever outcome its adherents demand. It’s outrageous that a former DoE lawyer would knowingly spew such idiocy, carefully designed to make people stupider. But then, it’s not as if Patel is the only lawyer attacking the presumption of innocence.
“The end justifies the means”
Exactly, and that is the age-old philosophical/intellectual ground for utilitarianism (which is the justification certain prominent “feminist” leaders have explicitly adopted in their attacks/inaction regarding Tara Reade, as a very recent example).
And especially when you couple this with “by any means necessary”, you have now added the second age-old doctrine of “might makes right” – and together you have necessarily greased the skids towards tyranny, as you have removed any constraint other than your actual ability to impose your will on others.
I’ve skipped over numerous steps here, but one clear consequence, as you note, is the end of a principled (as traditionally defined) legal system.
One key correlary is that once you start down the path of subsuming any objective truth or objective standard to an overriding political end (in the guise of a “greater good” perhaps), be it eliminating due process in Title IX proceedings, or arguably getting Trump out of office in the November election by any means necessary, it doesn’t stop there, as history shows, because then you always have to deal with the revanchists (via traditional tyranny) or as with modern totalitarians your ambition expands to exterminating the deviationists, to extirpate root and branch any possibility of the opposition regaining dominance (the utopian pursuit of “irreversible change”) by trying to eliminate the very thought itself that might stand in opposition.
(On a coarser scale, you have the example of the Soviets first ruthlessly stamping out internal opposition and imposing their union of soviet socialist republics” and then you have military conquest and/or intimidation to create “buffer states” ruled by puppet governments to protect your initial borders – but then you have to now defend your new borders from enemies outside, so it’s never-ending conflict until you can control the whole world – and even then, you would still have to maintain your empire, defending against rebellion and economic collapse.)
And we have many prominent voices today arguing for the totalitarian vision (with them defining that vision), which is what make the prospect of their gaining power very frighting, as it means the end of the liberal social compact (including what you identify as a “principled legal system”) for resolving conflict.
Have you ever considered being pithy?
But I have all these words inside me bursting to get out, and “I agree” is unsatisfying.
I would hate to see anyone burst.
Yes, usually, but nobody’s perfect…
Scott Turow.
“If we cannot find the truth, what is our hope of justice?”
” it’s not as if Patel is the only lawyer attacking the presumption of innocence.”
..in fact she’s very late! The tax office sorted it out years ago when they decided they would assess how much tax you owed and if you disagreed you would have to prove you didn’t.
Maybe that didn’t happen in the USA, you were too busy with cops deciding that the money you’re carrying is a proceed of crime and you must prove it isn’t.
Actually Boss, you have examples where presumption of innocence is a fairytale most weeks! I thought the Law industry had given up on it!
You conflate the aspiration of the presumption of innocence with people falling short of the goal. Don’t do it. We may not be as good as we should be, but that’s not a reason to not try.
Yeah, it’s one thing when partisans on both sides demand leniency only for their own friends, but no one on either side is trying to change the rules to be more fair. (E.g., everything to do with Mike Flynn, since outside criminal defense lawyers no one is trying to make the FBI record interviews or have a sensible and consistent stance on material statements.) That’s normal hypocrisy.
It’s much more outrageous when there’s hypocrisy and the currently hypocritical side is actively opposing an ongoing attempt, however flawed, to fix the rules in a universal manner, and doing so with lies and hyperbole.
The presumption of innocence is the starting point for how we treat the accused, not the finish line. It also says jack crap about how we treat the accuser.