Social Fictions and Justice

“The damnably difficult thing about all of this, of course, is that you can’t presume that both are innocent at the same time. One of them must be saying something that is not true. But “he said, she said” doesn’t resolve to “let’s start by assume she’s lying,” except in a rape culture, and if you are presuming his innocence by presuming her mendacity, you are rape cultured. It works both ways, or should: if one of them has to be lying for the other to be telling the truth, then presuming the innocence of one produces a presumption of the other’s guilt. And Woody Allen cannot be presumed to be innocent of molesting a child unless she is presumed to be lying to us. His presumption of innocence can only be built on the presumption that her words have no credibility, independent of other (real) evidence, which is to say, the presumption that her words are not evidence. If you want to vigorously claim ignorance–to assert that we can never know what happened, in that attic–then you must ground that lack of knowledge in the presumption that what she has said doesn’t count, and we cannot believe her story.”

Woody Allen’s Good Name By Aaron Bady at the New Republic.

My best case ever was an appeal based on a jury improperly qualified on the presumption of innocence. It was a perfect blend of academic argument and procedure, with a fact pattern that wore its racism openly. I’ve had other cases with a good mixture of all of that (although not as many as I would have liked) but that one seemed special.

Our legal system, and particularly the criminal trial system, is in large part a social fiction. It demands that people–judges, attorneys, jurors and even witnesses–suspend what they “know” and change how they assess truth in their daily lives. Everyone but the defendant is in a pretend context where the (almost always poor minority person) accused, who has purportedly done something terrible, and has just generally comported himself in a manner wholly alien to the middle class professionals who are expected to presume he is not guilty.

It’s like everyone in the room pretending the five year old’s flour and water soup is edible and then behaving as though it is actually delicious.

That’s an incredibly tall order.

When you are dealing with accusations of a traditionally marginalized type from a traditionally disempowered sort of victim, the system trips over itself even more.

One problem is that citizens need to rehearse the presumption, if our courts are to reflect the ideal that an accused is truly presumed innocent unless and until he is proven otherwise beyond a doubt which is reasonable to hold. If they’re not practiced in setting their minds in that state before it matters, they can’t do it when it does.

This is seemingly incompatible with the elimination of another pervasive social ill: blaming victims of sexual assault, refusing to believe them, minimizing their assaults, and falsely believing that most accusations are malicious and untrue.

There’s a conflict: In order to improve criminal justice for everyone, we must practice presuming people innocent, even when credible accusations are leveled against them, until there is reasonable proof. But, in order to change rape culture, when must bring the social judgment to bear against the accused, when a sexual assault victim makes a credible accusation.

The burdens are unequal, as are the consequences. The scope of change–and the necessity of the change–are equal.


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