The Man or the Woman: who are we supposed to believe?

Standard

I recently wrote an article for the SWP’s Internal Bulletin with 3 other lawyers (it’s starting at page 89, seeing as you asked…), arguing that the party should apply a civil and not a criminal “standard of proof”, with a burden on the person defending the complaint. In the criminal system, you have to have a presumption of innocence, because it balances what would otherwise be the unjustifiable imbalance between the information-gathering powers of the state, which has access to police, telephone records, medical data, etc, and of the accused, who has none of this. This burden make no sense outside the criminal system, outside which it would create injustice, because it makes it intolerably unlikely that any complaint would ever be accepted.

The point of a reversed burden of proof would be to give “some” weight (not necessarily a decisive one, but some weight) to the undoubted fact that women make very few false complaints of rape or sexual harassment. It is enormously difficult to come forward with a complaint of this sort: still more so against a man who is many years your senior, who is your employer or the de facto leader of your party.

In reply, one misconception that I’ve heard repeatedly is that anything other than a criminal standard of proof would weigh the process unfairly against the person defending a serious complaint. Only a “radical feminist”, it is said, would automatically believe a woman just because she made a serious complaint.

There are lots of fallacies with that argument. Here I want to focus on one, which is the idea that deciding who to believe is only or primarily about what standard of proof you operate. Yes, standards and burden of proof matter, for the reasons I’ve just given, but they are not the heart of the decision-making process. I have represented people in both criminal and family courts accused of rape or domestic violence. The former operates the criminal standard of proof, the latter the civil standard. Logically, a person accused of an offence is more likely to be believed in the civil as opposed to the criminal courts (That is the whole point of the burden). But whichever court system you describe, some people will be believed and some will not.

Essentially, what makes a compelling case is much the same in either a civil or a court system. What you want from a witness is much the same in either. You want someone who will give a detailed and plausible account. You want someone whose story is backed up by such documents as there are.

In the criminal system, this process is codified into what are called “adverse inferences”. For example, if a person is asked about their guilt, and they provide one version of events, but they then change their story, a jury is told that they are entitled to use that as evidence that the person is lying.

A jury is entitled to draw adverse inferences from previous convictions. That does not mean that all previous convictions are relevant. If a person is accused of income tax evasion and they have a previous conviction for assault, the conviction is probably not relevant. But as well as the fact of previous convictions it is also worth looking at the manner in which those convictions were obtained. If a person has loudly maintained their innocence, pleaded not guilty, and yet been convicted, that means that another decision maker has listen to them carefully and decided that they lied. You could draw an inference from that person’s past denials not merely that they were untruthful to others but that were not truthful to themselves.

There is a degree of technique involved. People who have been judges for 20 years tend to make better decisions than judges in their second week. The most basic skill is a simple human one of empathy, the willingness to listen, to start your starting assumptions and to watch and see if a case develops along the lines you thought. Losing independent-minded people from these sorts of roles, and replacing them with others of less empathy, is a recipe for poor decisions in future.

Obviously: you should not believe a person bringing, or defending a complaint, solely because they are a leader of your party. And you should not believe the person defending a complaint just because you have been told they did good once in a different job, or because they are your friend.

Some defenders of the Disputes Committee process will tell you candidly: “I don’t necessarily defend the DC. But they are in a hopeless position. These cases invariably pit one woman against one man, her word against his, and in those circumstances who should you believe?”

Courts of all sorts are put in this position most days of an average week. They do their best, they apply these and other simple rules of evidence, and they make a clear decision. You cannot rely on the authority of a court or a quasi-court, or whatever you want to call it, which lacks the confidence to make clear decisions. And if its verdict was “we believe the woman, but we are not going to make the findings she asked us to make” then its decision was less than no decision at all.

(Originally published, with thread here)

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