Imperfect Procedural Justice, Presumption of Innocence, and

The public hearing of Dr. Christine Blasey Ford and Judge Brett Kavanaugh and the imprisonment of Bill Cosby raises the issue of presumption of innocence in the post-MeToo era. Many are concerned that if we don’t require physical evidence for sexual assault, then innocent men can be wrongly charged. Many men and women are concerned that the #MeToo movement has gone too far—some label it the modern-day witch hunt, others call it lynching.

First, no men is being hanged without trial in the United States today. Lynching is illegally. And we can have a rational discussion only if you stop being overly dramatic.

Second, witch hunt is wrong because there is no witch. Anyone persecuted for being called a witch is wronged because she can’t possibly be one. On the other hand, many men who are said to be rapists or sexual harassers are rapists or sexual harassers.

An important theme in the #MeToo movement is the words of women. Men are taken down—they lose their contracts, jobs, friends, family, reputation, and freedom—because some women claim that these men did things to them against their will. These men are formally or informally charged because of women’s saying so. Does this mean that we are abandoning the presumption of innocence? Does it mean that a man is considered guilty automatically when a woman accuse him of sexual assault or harassment?

No, it doesn't. We are merely acknowledging that women's words are valid evidence, and truthful accounts can be used to prove a man's guilt.

The criminal justice system is a form of imperfect procedural justice. Unlike perfect procedural justice, following through on the steps involved in imperfect procedural justice does not always give us the right result. Perfect procedural justice is available for cases in which you can design a procedure that always give you the correct result. The most commonly cited example is the fair distribution of a cake. To ensure that everyone gets a fair share, we let the person who cuts the cake get the last piece. That way, she will make sure to cut the cake evenly so that her slice is as big as everyone else's.

On the other hand, the criminal justice system is not like that. We may design the system as best as we can, allowing legally obtained evidence and excluding irrelevant personal, character attacks on the defendant. Still, at the end of the day, we cannot be perfectly sure that we apprehend the right guy. All we have is law, guidelines, and evidences. Together, they us good reasons to believe that s/he killed the victim. But because no one else is there when the murder happened, no one can be 100 percent sure that the accused is the real killer.

This is why presumption of innocence is so important. It requires that the criminal justice system do its best to provide evidence to prove the guilt of the defendant. How much evidence is enough? It is always possible that an alternative explanation of the evidence exculpates the defendant. Even when we have the pistol and the pistol has his finger print, it is still possible that he did not kill the victim and he left his finger print there by accident. The criminal justice system is run by human beings, and human beings are fallible. Police officers and prosecutors cannot eliminate all possible doubts, but only reasonable doubts.

How can one prove the guilt of a rapist?

To prove that rape happens, one must prove that the defendant has sex without the consent of the plaintiff. Typically this can be done if we can find bruises or physical wounds on the plaintiff’s body. The bruises prove that she resisted and testifies to her lack of consent.

However, in date rape and acquaintance rape cases, there is neither a bruise nor a wound. How can rape be proven? Even virginal wounds are sometimes seen as signs of intense sexual intercourse, not proof of sexual assault. What kind of physical evidence can a victim provide to show that she did not agree to have sex with her date?

To accuse a man of sexually assaulting a woman is to claim that he has sex with her without her consent. Thus, the woman who accuses the man of sexual assault must prove that she did not give her consent. Why can’t she prove that by simply telling the court that she didn’t? Why would any physical evidence be necessary? Also, how can she provide specific, definitive proof that can be corroborated? A mind-reader?

To require that the plaintiff provide physical evidence for her lack of consent is an absurd standard. First, if we accept this standard, then we can never charge a man who, in his own bedroom with no eye witness, rapes a young child, a mentally ill person, or a person with an intellectual disability. We can only charge rapists who rape in public. Accepting this standard effectively means men have the liberty to harm anyone at will in their own bedrooms.

Second, consent is a mental event, not a physical event. A victim can’t provide the court with some physical evidence for her lack of consent. To ask her to provide physical evidence for her thoughts back then is quite unreasonable. She knows whether she gives her consent, and she can testify to that mental event. Neither the court nor the defendant can tell her what she has in mind. Only the person can tell us what she wants.

To say that presumption of innocence requires that the victim provide physical evidence before she accuses a man is to say that her will is unimportant and that the man can interpret her will in whatever way he wants. Most victims of sexual assault can provide their own testimony only; she cannot give us physical evidence to prove the guilt of the offender. Why can’t a woman testify for her own thoughts and will? A woman is capable of telling you what she sees, what she hears, and what she experiences.

People who ask for physical evidence for one’s lack of consent are basically saying: “Because you can’t prove that you disagreed, you agreed.” How plausible is this? What if the victim is a man or a child?

Conservatives are concerned that a procedure that allows a woman’s saying so to be the damming evidence will harm innocent men. I share this concern. After all, the charges, whether true or false, will likely ruin the man’s life. Therefore, it is important that the prosecutors and the criminal justice system make sure that they evaluate the evidence carefully. However, the presumption of innocence does not require that the victim provide concrete evidence that can be independently corroborated. In situations in which all we have is “he says, she says”, what we need to do is to examine the credibility of both accounts carefully. We must not dismiss a woman’s word simply because she cannot provide physical evidence.