Justice for all

We need to be on guard against topical exceptions in matters of justice. If the justice system is to be fair, it would seem that a determinedly even-handed treatment of evidence and the law is required even in the most explosive cases. Debating whether and to what extent to deprive someone of their fundamental freedoms should be kept at arm’s length from our momentary emotions and politics.

I’m writing this in response1 to Lezlie Lowe’s article in the Chronicle Herald, “Language murky around sex assaults”:

“Someone is sexually assaulted. Someone is charged. The violence becomes news and a journalist must piece through her research to write a story. But that reporter, says Helen Lanthier, must attend to a whole lot more than just the so-called facts.

“‘I know there needs to be objectivity,’ says Lanthier, of Lunenburg’s Second Story Women’s Centre, ‘but what I would like to see is a discussion about the role of a reporter in the broader scheme.’2

“Lanthier is co-co-ordinator of Be The Peace. The advocacy project ends in March and Lanthier, and hundreds of community collaborators on Nova Scotia’s South Shore, are seeing the fruits of this concerted three-year effort to address violence against women.

“One change? Before Be The Peace, South Shore survivors had to travel to Halifax to connect with a sexual assault nurse examiner. Now there are 11 trained on the South Shore who collect specialized evidence after an assault.

“Notice, there, I didn’t say, after a woman alleges she’s been assaulted?

“‘Alleged’ and ‘alleges’ are overused words in reporting on sexual violence, Lanthier says. ‘It affects the survivor’s credibility. It might imply that she’s lying.’

“In fact, there are no more false claims of sexual assault than any other crime. (Surprised? Then you’re probably buying into a common stereotype that women are manipulative and accuse wildly.)3

“Pay attention to news writing, Lanthier says, and you’ll notice the word ‘alleged’ blanketing sexual assault stories, especially in verb form — ‘Mary alleges’ — that casts doubt not only on the crime, but the survivor herself.

“Due process and the presumption of innocence is important, Lanthier says, but too often ‘what you’re left with is, “Oh my God, none of this is true.”‘”

“Alleged” and “accused” must be used in reporting all undecided criminal cases, including sexual violence. If a reporter accepts innocent until proven guilty, a fundamental tenet of our legal system, their use of these words should be ubiquitous and should not affect a reportee’s credibility. How could they, if they’re used evenly across all types of cases?

Of course, perhaps they are not used evenly in all cases and this merits closer examination. (Numbers would be helpful – for a start, you could run or cite concordances on a body of media reports covering different types of crimes. I’ll leave that as a graduate thesis exercise for the reporter so she can support her own claim.) If we applied extra linguistic precautions to sexual assault cases that we don’t use anywhere else, that would indeed be unfair to true survivors. We must treat all types of cases fairly and not isolate our demands for fairness to this one domain.

I would also like to see numbers about the probability of false accusations for sexual assault relative to other domains, though reliable statistical work would be extremely challenging for both inborn and extrinsic reasons. However, even if this claim has strong support, it’s a red herring because each case must be judged on its individual merits. Imagine a change to the justice system where, since 75% of accused of crime Z were found guilty anyway, we simply convict everyone accused of crime Z since there’s a 75% chance we’ll be right.

Innocent until proven guilty necessarily means alleged until proven survivor. We need not go to extremes to speak of how they might be lying. We can offer assistance and support to the alleged without having to make a verdict. This is hard work: It’s much easier to deal in absolutes and strict categories. But when we think that way, a lot of important principles get thrown under the bus.

“Other words imply consent. ‘I have an example from a news story here,’ Lanthier says: ‘”He engaged in sexual intercourse with the victim,” rather than, “he raped her.”‘”

“Sexual intercourse” by itself is a neutral-enough term and so it, on its own, certainly wouldn’t get us thinking about it non-normatively. Whether it really implies that it is consensual sex is debatable – does “coitus” imply that?

The cure for this, if it is needed, isn’t to merely replace a misleadingly banal description of an act with an emotionally-laden categorization. (For example, “She murdered him” tells you less than “She caused the cutting device to protrude the wall of his primary circulatory organ.”) What you need is a plain, unflinching description – “She stabbed him in the heart” – or, for one kind of assault, “He overpowered the victim and forced her to submit to intercourse.” Being explicit is a good idea when dealing with broad categories.

* * *

Although it is sort of a red herring, it disturbs me very much how the very debatable claim of a low probability of false accusations is used to suggest that we should act as if the accusations are probably true, which is how I interpret a call to stop saying “alleged” so much. Remember that a subject’s guilt or innocence should not be based on categorical probability. Treating it as such undermines the ideas needed to keep the justice system even nominally fair.

If we stop upholding innocent until proven guilty in our discourse, the politicians and even the courts themselves won’t be far behind. As terrible as assault and killing are, we also have to step back and allow fair and independent adjudication, because an unfair and capricious justice system would be both less effective and become its own new evil.

It feels to me sometimes that people want to amplify the seriousness or veracity of a type of crime but not the proportional precautions. Imagine someone saying “Murder is awful! Therefore we must never allow doubt to fall on the accusers!” I would rest easier if I could assure myself that this kind of thing is just a straw man, that nobody really thinks that way about their area of concern.

I’ve talked a bit about being dispassionate, but it’s very hard for people to talk dispassionately about these kinds of things because we are political herd animals and easily polarized. For example, someone in the 1960s who supported basic rights4 for homosexuals would have had a very hard time raising alarm about a homosexual sexual assault because it would have been prosecuted under the same anti-sodomy laws that prosecuted consensual homosexual activity and the opponents of basic rights would have used it as ammunition. This should also answer our questions about why some non-violent religious adherents don’t speak out against violent interpretations of their religions. No, condemning the acts of ISIL shouldn’t fan the flames of hatred for Islam, but…

“[People not believing] makes survivors reluctant to speak out. That’s a problem when there are already barriers to women reporting these crimes. The province pegs the percentage of intimate partner violence complaints that reach police at 26 per cent. The Canadian Women’s Foundation and Statistics Canada suggest a paltry six to 10 per cent of sexual assaults are reported.”

It bears mentioning that one gigantic reason not to report an assault is that as bad as the assault was, you don’t want to expose your assailant – your intimate partner, in many cases! – to the extreme force of the justice system. The problem is the same in kind but not degree as this imaginary one: Imagine if all sexual assault were punishable by death.5 In such a case, many victims of these assaults would not report it, and people against the death penalty would bury their heads in the sand instead of reading (much less reporting) objectively on assault cases.

This is one facet of a broader problem – our war against ourselves. If we wish to see and understand who we are, we would do well to lay down our weapons, both literal and rhetorical.

  1. I also sent a brief-by-my-standards five-paragraph e-mail to the paper 

  2. Scott Alexander taught me we should be loathe to throw out what someone has to say just because they say something like, “I’m not an X / I know Y, but…” 

  3. My note: As wrong as it is to think this of all women, enough women do accuse falsely and very deliberately that it is a serious problem, not in the least because people who are innocent have their lives as trashed as the guilty.

    Paul Lutus, arachnoid.com“A New Sex Crime” 

  4. I mean really basic, like not being imprisoned or losing your job for being outed. 

  5. It would seem that extreme penalties also provide extra incentive for false accusations. As Paul Lutus puts it, “They can lie with impunity and do enormous harm with very little prospect of being held to account for the lives they’re ruining.” 

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