I recently listened to an interview on the Dallas NPR radio station KERA with author Eugenia Cheng. Dr. Cheng is a British mathematician who, interestingly enough, is currently Scientist in Residence on the faculty of the School of the Art Institute of Chicago. Her recent book the Art of Logic: How to Make Sense in a World that Doesn’t. Dr. Cheng was articulate, logical (of course), and interesting. Most points she made were apt and helpful to anyone interested in the operations of discourse and persuasion. Those abilities are part of the stock in trade of lawyers, as rigorous logic is the stock in trade of mathematicians.
Dr. Cheng mentions the phenomenon of a paradox in mathematics and its application in human interactions. One situation she considers paradoxical is prominent in recent events: Whether to presume the accuser or the accused in a sexual misconduct charge. The paradox is that, on the accused is presumed innocent, the accuser is presumed to be untruthful. The accuser is the put to the burden of reliving the trauma in proving that she (usually a “she”) is telling the truth. If it is wrong to make an (alleged) victim prove her case, the presumption of innocence for the accused fails. She doesn’t directly say this, but Dr. Cheng gives the impression, and she’s certainly not alone, that in sexual misconduct allegations, the accuser should always be presumptively believed. This is so because sexual impropriety is so traumatic, the fact that one comes forward with an accusation is seen as a courageous act that deserves respect. Or, “why would she if it wasn’t true?”
The presumption of innocence is the “golden thread” that runs thorough our jurisprudence. It’s based on the principle that it is better that 10 guilty persons get away than one innocent person be convicted, and that the burden of proof is on the one who asserts an accusation or a fact. The first principle is ancient in the common law; it was articulated by William Blackstone in his Commentaries on the Laws of England and affirmed by the courts of the United States and most nations in today’s world. John Adams, in his defense of British soldiers accused in the Boston Massacre, explained the rationale, and the logic, underlying the principle:
“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.
“But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
Yet another pertinent adage is that “One might as well be hanged for a sheep as a lamb.” At English common law refers the penalty for any theft of any livestock was execution by hanging. If there is no difference in the penalty, one might as well steal a more valuable wool-bearing mature sheep as a lamb. There’s no point in going half-way. This is one reason the case law and statutes evolved and settled on a graduated scale of penalties depending on the seriousness of the offense.
The Supreme Court has recognized that “the standard of proof [at a minimum] reflects the value society places on individual liberty.” When the punishment of a crime or cause of action poses a greater threat to a person’s interest, that crime or cause of action must be adjudicated with greater due process protections to the accused.
Applying these notions to cases of sexual harassment and sexual assault one can see why a presumption of innocence is a good policy even if the paradox were to create “presumption of guilt” for the accuser until she/he proved the accusation. The accuser suffers no penalty for making an accusation she cannot prove, unless the accusation is demonstratively frivolous, in which case the burden of proof shifts to the accused.
The principle of J’accuse (which contrary to the belief of many, is not the law in France – the Reign of Terror taught the French a lesson in that regard) where an accused must prove their innocence, harkens to the time of the Medieval Inquisition and totalitarian and authoritarian states in the present and recent past. It can only be justified based on providing more efficient administration and enforcement of mores and laws.
Dr. Cheng mentioned at one point that the potential harm that could result from certain activities should dictate the harshness of applying certain rules. A corollary to that notion is the burden of proof standard. In law, there is a continuum. “Probable cause” means there is sufficient evidence that an offense has occurred and a particular person or persons have committed it. This is the standard for arrests and searches.
“Preponderance of the evidence” means more likely than not, or 51% likelihood. This is the general civil standard. “Clear and convincing” is somewhat amorphous, but it would apply when an important right or interest might be impaired. Obtaining an education is one of those interests. The “beyond a reasonable doubt” is the criminal standard when the state may take an accused’s life, liberty, or property.
An example Dr. Cheng suggested in her interview was, in the case of driving under the influence of alcohol, zero tolerance for exceeding a statutory blood alcohol limit is appropriate. Her reasoning was that the consequences of a wreck caused by and an alcohol-impaired driver were potentially so catastrophic. But that rationale could apply to any violation. Anyway, the blood alcohol limit, in most states, only creates a presumption which might be sufficient probable cause for an arrest. Presumptions can be rebutted. Beyond a reasonable doubt is still the standard, as it should be.
Regarding sexual harassment and assault, there has been a recent controversy about the appropriate burden of proof, and whether an accuser should be subject to cross-examination by an accused or the accused’s lawyer. And how much inappropriate behavior should be tolerated before reporting it and imposing substantial penalties. I agree that is a knotty problem.
In the case of forcible rape, severe punishment is appropriate because of nature of the harm to the victim. Somewhat milder sanctions for non-consensual sex occasioned by overreaching or cognitive impairment might lie, but any unwelcome touching is technically assault and battery, which can be both a criminal offense and a civil cause of action.
More problematic is allegedly offensive verbal conduct and sexual innuendo. Freedom of expression, as a Constitutional guarantee requires a narrow standard. The legal standard articulated by the Supreme Court is that to be sanctionable by state action, such conduct must be severe and pervasive. When that standard applies is a fact issue that depends on the circumstances. Mere rude comments, especially when isolated, meet that standard could not meet. The speaker of isolated lewd comments might be reported and cautioned. But zero tolerance often equals zero common sense.
Dr. Cheng makes a valid point that logic is not necessarily a persuasive vehicle. Few of us measure up to Mr. Spock. Emotions have a significant role and will often override the most reasonable and logical argument. Medieval universities taught the trivium whose subjects were logic, rhetoric, and grammar. Logic teaches how to systematically reach conclusions; rhetoric teaches how to persuade through emotions. Grammar teaches how to articulate with precision. Aristotle’s approach was similar: ethos, and pathos; that is, logic, authority, and emotions.
Jury trials, and to a lesser extent, trials by judges alone, is that persuasion is a two-step process. First, an advocate must cause the fact-finder want to find for his side, and then suggest a legal reason for doing so. The emotional appeal to a judge must be much more subtle, usually couched in terms of public policy, or fear of higher court reversal, but it is important. The legal authority and the logic of its application complete the argument.