The logic of presumptions

Katie van Schaijik | Sep 18, 2018

Some Facebook readers responded to my post calling for a "presumption of veracity" to balance the "presumption of innocence" by objecting that I'm proposing a logical absurdity. It can't be true both that the accused is innocent and that the victim is telling the truth. A presumption of veracity in practice will nullify, not balance the presumption of innocence.

The other day (before Judge Kavanught's accuser came forward publicly) at NRO, Charles Cooke made the same point in response to Senator Dick Durbin, who had tweeted that the vote on Judge Kavanaugh should be postponed in light of the anonymous charge that he committed sexual assault in high school.

If the #MeToo movement has taught us anything, it is that we must respect and listen to survivors of sexual assault, regardless of the age of those involved or when the alleged attack took place.

Cooke points out that the senator begs the question of Kavanaugh's guilt by using the term "survivor" to designate his anonymous accuser.

It is logically preposterous to (1) recognize that a charge may be entirely false, and (2) demand that we treat the person making it — and the person on the end of it — as if it were proven. 

The difficulty he's expressing, stems from what Wojtyla called "excessive objectivity" in our approach to justice, and persons. He's confusing the objective and subjective realms.

Let me first qualify the point. Cooke is right that it would be logically preposterous to call one and the same crime both alleged and proven. It's one or the other; it can't be both. Therefore, when we're speaking of something objective, like an action or an event, we are right to characterize it as alleged until an investigation or trial establishes the facts one way or the other. As long those facts are in dispute, we do well (in both our formal and informal justice processes) to conscientiously refrain from prejudice.

But the presumptions we are talking about here have to do not with objects, but subjects, persons. The principles we are working to articulate and establish are about how we as individuals and as a society treat  persons—absolutely unique and unrepeatable, self-determining moral agents, who are worthy, always and as such, of respect and care. 

A major problem with our justice system and our moral habits to date is that we have lived and spoken and acted as though the presumption of innocence toward the accused entails an attitude of skepticism toward the victim. We've even treated such skepticism as morally virtuous in ourselves. "Since he's innocent until proven guilty, I'm right to regard her as a liar and a skank and a gold-digger or whatever."

That's not okay.

So what do we do about it? Turning this state of affairs on its head isn't the answer. We can't simply say that since victims have gotten the short end of the stick up till now, it's okay to weight the scales in their favor from here on out. 

It should be obvious to all that we can't fix a system that's skewed toward the accused by skewing it toward the accusers. Do that, and what we'd have is a still-skewed system, an unjust system, a moral climate in which all that's needed to ruin a person's life and career is an allegation of wrong, like in the Soviet Union. Don't like this priest or politician or judge or teacher or boss? Have a vendetta or a sincere conviction that he's on the wrong side of history? Find someone willing to say he abused her once, and he's as good as finished.

The answer, as I argued in my earlier post, is to extend to someone claiming to have suffered abuse a presumption of veracity. That means treating her as we would treat someone telling the truth. It means not attacking her credibility, not shaming her, not blaming her, not humiliating her, not acting like prosecutors hired to prove her a liar. It means meeting her with respect, listening to her, taking her seriously, caring about what becomes of her, making sure she has ample opportunity to make her case, and so on.

The same goes for the accused. Until the facts are duly established, we extend to him a presumption of innocence. Depending on the circumstance, we may decide that there's enough evidence that he has to be taken into custody. But we can still make a point of deeming him innocent until proven guilty. We can treat him with respect and concern about his welfare and his future. We can make sure he has ample means and opportunity to defend himself against the charges, and so on.

We can do both these things. We are capable of treating both accuser and accused with respect and care while the facts are being investigated. It's a matter of attitude, discipline and sound policy. 

A final point:

It's okay to find fault with acts and modes and practices in the objective realm. That is, we can criticize the way an allegation is made or handled or used in public without attacking the victim. In the Kavanaugh case now in the news, we can decry, for instance, Diane Feinstein's handling of the matter. We don't owe her a presumption of veracity or sincerity or even-handedness in such politically-charged circumstances. We can also characterize the public allegations as, say, too vague and uncorroborated, untimely, and unprovable to justly derail the career of a man with an otherwise unblemished reputation. We can do that without minimizing the event or discrediting the person making the charges. 

Anyway, let's try. It would get us a long way toward a more just and civil society.