The Counter-Counter Argument, Part One.
The #metoo and #beliaevewomen movements we’re witnessing today are brave, needed, and potentially terrible.
Our nation, while we continue to make strides toward a more perfect Union, has to be ever-vigilant in not allowing our movements for change to be weaponized for illiberal goals. I have incredible appreciation for the pain and trauma that is the genesis of #metoo and #believewomen, and in theory, it is a fantastic goal.
The trouble is, our justice system- the very nature of a laws-based society- demands impartiality. Virtually every miscarriage of justice starts with a pre-conceived notion of guilt or innocence.1 We cannot start a process ‘believing’ anyone. Every charge, every allegation should be taken seriously, and investigated with the level of attention and meticulousness warranted by the forum in which it is brought.2
The intro to Law & Order: SVU is playing through my head as I type this:
"In the criminal justice system, sexually based offenses are considered especially heinous…"
What they don’t mention is that, even in real time, they can be difficult or impossible to prove. That likely plays a role3 in why so few sex crimes are reported, and why even fewer are prosecuted. How often does a case turn into the day that Ford and Kavanaugh both testified in front of the Senate? What Mrs. Ford went through4 is a sad and terrible thing, but we cannot change the burden of proof, nor can we change the assumption of innocence.
Our criminal justice system is founded on the idea that it is better for ten guilty people to go free, than for an innocent person to be imprisoned. That seems crazy in light of stats like only 3% of sexual harassment / assault claims being false, right? But here’s the thing: Even with Blackstone’s Ideal, we still have truckloads of innocent people in prison. If we can put them in prison, we can also put them on sex offender registries. Hell, we know that something like 25% of life-sentence or death row criminals that have been proven innocent through DNA testing had previously confessed! We are spectacularly successful at creating a narrative and convicting people whether they are guilty or not.5
My plea is that we take the passion and pain and dedication to an ideal like #believewomen and redirect it toward #takethemseriously. Take every investigation seriously at every level. Do not provide special treatment or ascribe believability to powerful men. Do not honor double-standards in how we judge believability6. In short, strive for justice- not specific results.