Once more around on the "presumption of innocence." The concept is much abused.
"Innocent until proven guilty" does not apply in civil court, where many sexual assault cases end up. It's also irrelevant to whether Robert Menendez should keep his Senate seat.
October will mark three years since I started this newsletter. In all that time I don’t recall ever having to delete a comment for crossing any kind of line. But the reaction to my recent post on Russell Brand and the presumption of innocence was much more fierce than usual, especially from some men. I ended up deleting two comments: One that claimed women falsely accuse men of rape “all the time” (false and frankly misogynist) and another that called me all kinds of names for my opinion (I don’t allow personal attacks here, on anyone.)
But I wanted to elaborate just a bit on the question of the presumption of innocence, which has now arisen again in the case of New Jersey Senator Robert Menendez—who has been criminally accused of bribery offenses along with his wife along with three New Jersey businessmen. Of course Menendez and his fellow defendants are entitled to be considered “innocent until proven guilty” in the criminal courtroom. But as in the case of Russell Brand, that principle does not extend outside the courtroom. Some Democratic Party leaders (a small number so far, unfortunately) have called upon Mendendez to resign his Senate seat. The latest is Senator Cory Booker, Menendez’s fellow New Jersey senator, in a move I hope will catch on quickly.
As some have already pointed out, Menendez cannot be deprived of life and liberty unless he is found criminally guilty. But he is not entitled to a Senate seat, and we are all entitled to insist that he step down. In doing so, we are invoking civil rather than criminal principles.
Not long ago, the writer E. Jean Carroll won $5 million in damages against Donald Trump. The jurors agreed that Trump had sexually abused her and defamed her when he denied doing it. In that case, as in all civil cases, the standard of proof was NOT “innocent until proven guilty.” Rather, in U.S. courts, the standard to win such a case is based on “the preponderance of the evidence.” In other words, if a jury decides it is 51% likely that the plaintiff has proven their case, the defendant loses, and can also lose a lot of money as Trump is likely to do.
There are some good explanations of this principle of civil procedure, some of them posted by leading law firms. You can find some good ones here, here, and here. The Department of Justice’s Civil Rights Division also has a good summary of recent civil sexual misconduct cases it has filed, along with advice for victims of sexual misconduct.
As outlined in some of these summaries, the kinds of evidence often used in civil sexual misconduct cases include things that might be excluded in criminal cases, such as the testimony of friends and family members the alleged victim told about their experiences at the time—often the only kind of evidence that actually exists. That was the case with E. Jean Carroll. Fortunately, the jury believed her.
As I argued in my original post on this topic, this standard of proof—a preponderance of the evidence—is often also employed in “the court of public opinion.” It certainly was in the case of Harvey Weinstein, who was convicted in that “court” long before he ever stood trial for just a few of his crimes.
Sometimes the court of public opinion is all we have. Ordinary people can arrive at reasonable judgments, which is why we call upon them to be jurors in formal proceedings. (And by the way, an alleged victim of sexual assault can get sometimes get justice in a civil court even if a prosecutor decides not to pursue a criminal charge, or even if a defendant is found “not guilty” under a higher standard of proof.)
As for men like the two gentlemen whose comments I had to delete on this site, no one is asking you to automatically believe a woman’s account of sexual assault or rape. But if you automatically believe the accused male and rush to his defense, you would not make a good juror, anywhere.