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.