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Sexism, Skeptics, and the Burden of Proof

Never fails. Women reveal they’ve been harassed, threatened, stalked, abused, assaulted, or otherwise harmed, and a concerned contingent shedding crocodile tears descends upon the comment thread squawking about the evidence. Hyperskeptics demand the allegations be proven beyond a shadow of a doubt. Legal eagles screech about innocent until proven guilty. There are howls of libel, slander, defamation, etc. Presumptuous jackasses pontificate upon the necessity for the victim to prosecute if there really was a crime. And so on.

To repeat the refrain from one of my favorite songs from the Vietnam War: Fuck ‘em all, fuck ‘em all.

But I shall review standards of proof, just for our own edification, and because I want to have a place to refer back to when people stutter, “B-b-b-but we can’t possibly eject so-and-so from the community without a trial, conviction, and Supreme Court ruling!”

Dublin Castle's Gates of Fortitude and Justice - here the Justice statue by John van Nost the Younger on the Gate of Justice - in Dublin, Ireland. Image and caption courtesy J.-H. Janßen.

Dublin Castle’s Gates of Fortitude and Justice – here the Justice statue by John van Nost the Younger on the Gate of Justice – in Dublin, Ireland. Image and caption courtesy J.-H. Janßen.

I shall take various burdens of proof from United States law as my template. ***METAPHOR ALERT*** This is, of course, not legally binding, nor to be construed as legal advice. We are merely discussing the many standards used in legal matters, and how they might translate to our own interactions, as it seems many people in this community get hung up on a single standard.

One further disclaimer: Potential victims may use any standard they wish in order to decide what action will best address their safety concerns. This includes avoiding someone because something about that person makes their spidey sense tingle. None of us have to provide ironclad evidence that we are right to be concerned in order to decide we wish to have nothing to do with certain people. Freedom of association is a thing. Deal with it.

Without further ado, then:

Reasonable suspicion: “a low standard of proof in the U.S. to determine whether a brief investigative stop or search by a police officer or any government agent is warranted.” For our purposes, this would mean that convention officials don’t need a notarized statement from a dozen witnesses and video from nine different security cameras in order to check out possible skeevy behavior. It is the standard of evidence we might use to chase down that somewhat fishy smell issuing from the vicinity of a certain leading light.

Probable cause: “a relatively low standard of evidence, which is used in the United States to determine whether a search, or an arrest, is warranted…. In the civil context, this standard is often used where plaintiffs are seeking a prejudgement remedy.” In our circumstances, it means we have enough evidence to pursue inquiry, and possibly eject a probable offender from our gatherings. No legal remedy is being pursued. There is no great harm coming to the accused, just perhaps some temporary embarrassment and inconvenience. This isn’t a criminal case; presumption of innocence does not apply, and a higher burden of proof does not need to be met. Sorry, legal eagles.

Now, let’s move on to legal standards used in administrative hearings. We’re not even within sniffing distance of a trial court yet. This is an important point to remember.

Some credible evidence: “does not require the fact-finder to weigh conflicting evidence, merely requiring the investigator or prosecutor to present the bare minimum of material credible evidence to support the allegations against the subject, or in support of the allegation…” In other words, this is definitely enough evidence to warrant ejecting Probable Creeper from the gathering, and to encourage further fact-finding if the aggrieved party (or parties) wishes to pursue the matter.

Substantial evidence: “[M]ore than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” At this level, Probable Creeper should not be surprised should they not be welcomed back into whichever venue they were misbehaving in, now or in the future. This is more than enough evidence for reasonable people not directly targeted to use in deciding what precautions to take against Probable Creeper for the comfort and safety of those relying on them to provide a safe space. Note: presumption of innocence still has not come into play. (I am ever so sorry for those of you who own that drum and love to beat it. You’ll get your chance, never fear! Hold your drumsticks in the meantime.)

Now, let us move on to civil burdens of proof, which are rather more strict.

Preponderance of the Evidence: “met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.” Note it does not say much greater than 50% – 50.1% will do. If there’s a greater than 50% probability that Probable Creeper is a predatory asshole, it’s quite reasonable for folks to refuse to share a stage with or offer a platform to Probable Creeper. The proof need not be ironclad. And, as Probable Creeper is still free to roam (just not in our spaces), there’s still no requirement for a presumption of innocence.

Clear and Convincing Evidence: “means that the evidence presented by a party… must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality.” This, my friends, is the standard of proof PZ used in deciding to release the information he’d been given regarding Michael Shermer. I think this is the lowest standard we third parties should use in deciding to publicly out someone as a probable abuser (note this is an opinion, not a rule). At this level of evidence, it’s my belief that we have a moral duty to do so. But the victim does not have to press charges in order for this decision to be made. The accused remains free, suffering only social penalties, and often not even those, as there are always plenty of lickspittles and apologists around to make excuses for their behavior. Also, we are still not in criminal court. No presumption of innocence is required even now.

And you do realize that none of the above burdens of proof being met precludes the accused from providing evidence of their innocence, right? They are welcome to present it at any time. They have every right to tell their side of the story, and this will become part of the evidence that is weighed. Opinions may or may not be revised as a result, depending on what they offer.

Beyond those standards, once we reach the standard of proof beyond reasonable doubt, we would be fools to allow the predator to hunt within our community. It’s likely they should end up charged with a criminal offense. Alas, due to the deplorable state of our society, this is all too often impossible. The police, the prosecutor, the judge, the jury, the appeals courts, all have a tendency to ignore all but the most obvious sexual assaults, and even then, when the circumstances are such that the offense cannot be ignored, they’re all too likely to let the offender go with a tap, and society welcomes them back with open arms. Our civilization is stacked firmly against the victims of sexual crimes. So we may have proof beyond reasonable doubt, but the offender will never so much as catch sight of a cop. (This is the harsh reality, and those bloviating about how if such-and-such situation really happened the victim should prosecute can either accept it or get lost.)

The inability to secure a criminal conviction, the unwillingness of a victim to put themselves through the unique hell that is trying to report a sex crime, or the fact that the undesirable behavior didn’t quite break current laws, doesn’t mean we’re required to allow predators to wander at will through our spaces and within our organizations. That doesn’t mean we must keep their name and offense secret. We can and must act to remove them from our community, and warn others to protect themselves from these known predators.

As for the presumption of innocence? The only place that applies is within a criminal court. The jury is required to presume it until the situation is proved beyond reasonable doubt. We are free to form our own opinion on the strength of the available evidence at any time.

If this is anathema to you, if you’re absolutely set on the idea that every criminal act should be prosecuted, too fucking bad. I’ve a reasonable suspicion you’re one of the shitlords who have made it nearly impossible for victims of sexual predators to obtain justice. I have probable cause to believe you’re among those who make seeking justice more traumatic than the assault itself. Your stance provides some credible evidence that you’re likely one of those who’s delighted to presume victims guilty until proven innocent, all the while squawking about the right of the abuser to be presumed innocent until God appears and declares them guilty.

Perhaps if you so desperately want every offense prosecuted, you should work on changing the culture that makes that impossible.

As for those screaming for proof beyond the shadow of a doubt? You’ve revoked your right to be called skeptics. That standard of proof is as mythical as Bigfoot. The demand that such proof be offered before you will believe a victim makes you a huge part of the problem.

We’ve got enough problems without you. We will solve them without you. It’s up to you whether you’ll join us in working toward that solution, or continuing to be horrible human beings.

 

I had this queued up before Greta published her excellent post, which says much of the same more succinctly. Still. I figured that standards may be helpful.

Comments

  1. rq says

    What’s interesting is for things to actually go to court at all, an accusation of some sort has to be made… initially without evidence, which shall then be presented in court. So, if no one is ever allowed to be accused of something without the accusation being proved as true in court (because otherwise they’re innocent and thus any accusation is defamation), then nothing would ever get to court. Ever. So, I think it’s fine to make complaints and accuse someone – as you say, evidence towards innocence may be presented at any time. And, if claims prove to be false or somehow mistakenly interpreted, there should be consequences for that, too. But that bit comes after the whole weighing of all evidence, including the initial complaint/accusation, which, when made initially, should and must be treated as true.
    To dismiss it outright as false because it’s a complaint against someone that hasn’t yet been proved anywhere is to throw out any kind of thinking (rational, skeptical, logical, etc.) right out the window.

    On the ‘plus’ side, if you never investigate anything, you’ll never have any issues – always a clean slate! Yeah! Because, hey, we couldn’t investigate – it would make us look bad! [/sarcasm]
    (Which also confuses me – I don’t want to see organizations do nothing. I want to see them investigating claims, supporting them, and putting them through the proper channels in the proper manner (that means no victim blaming, believing the complaints not dismissing them, not forcing apologies, no sweeping away or under the rug, etc.), and I want to see them achieve results. And from these results I will judge them and their ability to deal with complaints of all kinds.
    An organization that can show and prove that it deals well with difficult situations is a good organization. An organization that just ignores difficult situations just to be able to invisibilize them later… not a good organization.)

    *This may not make much sense, and I hope my thoughts are at least marginally clearer than pondwater. It’s just one of those mornings.

    • Onamission5 says

      So, if no one is ever allowed to be accused of something without the accusation being proved as true in court (because otherwise they’re innocent and thus any accusation is defamation), then nothing would ever get to court. Ever.

      This bears repeating, like a thousand times, because I am fairly certain that this is the end goal of a lot of the detractors.

  2. says

    It’s ridiculous that this needs to be said. This crazy false dichotomy of it’s either sufficient for a criminal conviction, or it’s woefully insufficient to voice even mild disapproval needs to end. This is the sort of crap we make fun of YEC’s for doing, it’s embarassing that it’s infected the skeptic community.

  3. Sophia, Michelin-starred General of the First Mediterranean Iron Chef Batallion says

    Just as freedom of religion also means freedom from religion, freedom of association also means freedom from association. Natch.

  4. Tsu Dho Nimh says

    This seems relevant:
    http://hamptonroads.com/2013/08/victims-ordeal-prompts-sex-assault-policy-shift-norfolk

    The Police Department is changing its policy on sexual assault investigations in response to a case in which detectives did not believe a victim and – for a time – closed her file while an attacker was on the loose. Among the changes …. No longer classifying sexual assault cases as “unfounded.” Sexual assault reports will be considered valid, unless proven otherwise.

    • taxesmycredulity says

      Thanks for the Newport police policy-change link. It’s encouraging to see more and more communities being educated on sexual assault myths and best practices.

    • nathanaelnerode says

      This was actually Norfolk, Virginia. For reference, this is a city with a population of *242,648*. This is not a small city, this is a large city, though smaller than the neighboring Viriginia Beach.

  5. hjhornbeck says

    Sadly, given what I’ve been recently reading in the scientific literature, I can’t say this came as a surprise.

    One dominant and destructive characteristic underpinning police participation in rape investigations arises from exaggerated beliefs in the prevalence of false rape allegations. Concern has been expressed internationally regarding the high proportions of sexual assault complaints that are believed to be false. An early study conducted in the United States of America, for instance, revealed that the police officers who participated in the research believed approximately three out of every five rape complaints to be either false or mistaken (Feldman-Summers and Palmer, 1980). Likewise, in Chambers and Millar’s (1983) Scottish study, many detectives estimated false complaints to be very common, with one saying he believed only 1:20 were ‘real rapes’ (Chambers and Millar, 1983: 85 footnote). […]

    Detectives in other United Kingdom research, however, believe the proportion of false complaints to be closer to one-half (e.g. Lees, 1997:184), with Ian Blair noting: ‘there is considerable evidence that investigators seem prepared to give serious consideration to the proposition that between 50 per cent and 70 per cent of all allegations of rape are false’ (Blair, 1985: 53–4). One cynical detective even maintained: ‘After six years on the force, I don’t believe any of them’ (quoted in Burgess, 1999: 9).

    Jordan, Jan. “Beyond belief? Police, rape and women’s credibility.” Criminal Justice 4.1 (2004): 29-59.

  6. hjhornbeck says

    This is next on my list:

    Some feminists have argued that rape myths constrain women’s reporting of sexual assault to the police. The authors investigated whether myth-associated characteristics of sexual assaults play a role in police reporting behaviors of women. A sample of 186 sexual assault cases seen at a hospital-based sexual assault care center in 1994 was analyzed using logistic regression. A positive association was found between reporting a sexual assault to the police and two overtly violent components of the “real rape” myth: the use of physical force and the occurrence of physical injury.

    Du Mont, Janice, Karen-Lee Miller, and Terri L. Myhr. “The role of “real rape” and “real victim” stereotypes in the police reporting practices of sexually assaulted women.” Violence Against Women 9.4 (2003): 466-486.

  7. aspidoscelis says

    IMO, presumption of innocence isn’t just applicable in court. OK, specifically as a legal term of art, yes, it has precisely circumscribed context and appropriate usage. But as the general rule that you probably shouldn’t believe really bad shit about a person based on rumor and anonymous accusation, well, it’s common sense. It is, as the PZ commentariat would say, part of being a “decent fucking human being”.

    So, yeah, when allegations against a person come up, people want to know, “Well, should I believe this? Is so-and-so, who I thought was a decent person, really a reprehensible asshole?” And that’s not a bad thing. We shouldn’t believe the worst about people based on gossip. We should treat them as respectable human beings like ourselves until & unless we have a damned good reason to do otherwise.

  8. notsont says

    So, yeah, when allegations against a person come up, people want to know, “Well, should I believe this? Is so-and-so, who I thought was a decent person, really a reprehensible asshole?” And that’s not a bad thing. We shouldn’t believe the worst about people based on gossip. We should treat them as respectable human beings like ourselves until & unless we have a damned good reason to do otherwise.

    Yeah cause when a woman says something its gossip, you can;t use that against the word of a man. What there were several men who corroborated some of the “gossip”? Well was it 4 non related males? No? well then bitches be lyin!

  9. says

    Some police also have a tendency to lump “not enough evidence” together with “unfounded.” Actual research has shown that the rate of false accusations in rape is the same as for other crimes. When was the last time that someone who said he was mugged was asked a million searching questions and reminded that he was probably just mistaken?