Telling some one a sex joke is a not a crime, killing someone is a crime.
Edit: Sexual harassment, as such, is not a crime under state or federal law in the U.S. Murder is a Crime.
Makes no sense to compare it to murder. apples oranges.
I would argue that the recent wave of "guilty until proven innocent" and "guilty when accused, and more guilty if accused by more people" is even worse for public policy. Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives.
Does this mean I think any or all of the recent high-profile cases are innocent? Oh shit, wait, it doesn't matter what I think unless I'm on a jury or in a position to hire or fire the person who is accused.
It's easy to feel smugly righteous about a lot of these cases, but the reality is that it does matter if innocent people are caught up in the hysteria. I'm not quite sure when the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty," but the long-term consequences of this are likely to play out in very unexpected and ugly ways that will affect most or all of us in areas that have nothing to do with sexual harassment.
Society has not abandoned innocent until proven guilty in court cases. That's where that standard applies.
Courts do have stricter standards for admission of evidence and verdicts. But the basic innocent-by-default is a general principle that should apply pretty much everywhere.
And there should be consistency and standards in media reporting of allegations, and for HR decisions.
The thing about innocent-by-default is that false accusations are also a serious crime with serious penalties (for good reason), and if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty.
The reason that courts, specifically, do not have this paradox is that "innocent" simply means "we do not have the evidence to justify using the extraordinary punishment powers reserved to the government alone against this person". Yes, there's such a thing as getting a court to declare you affirmatively innocent, but usually they say "not guilty," which is an important philosophical distinction. So a court can very well decide that a person has not been proven guilty of their crime, and that their accuser has not been proven guilty of malice, either.
But humans don't work like that. When we think "innocent," we don't think "I have insufficient data," we think "they didn't do it". It is arguably a flaw in human thinking, but it's a flaw we have to live with and work with. And a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn't a great world, either.
> But humans don't work like that.
Sure they do. There are three options, just like there are in court. We punish the accused, or we punish the accuser for lying, or we don't punish either of them.
Not punishing anyone is what we do when we don't have convincing evidence one way or the other. That's just consistency -- you don't punish the accused without proof just like you don't punish the accuser without proof.
When there is no way to know the truth, it's completely valid to do nothing.
...if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty.
This is not strictly or even practically true, but you acknowledge that later. When the defendant prevails in a court case, we don’t turn around and lock up the plaintiff.
You go on to say:
...a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn’t a great world, either.
If you replace “sexual harassment” with any other accusation, do you still feel the same way? With regards to the flaw in human thinking you mention — do we have to work with it for all kinds of accusations, or is it specifically a problem for sexual harassment?
So, for example, if a business in my neighborhood has a sign that says "No hippies, Jews, or N?????s", I should continue to shop there until they get convicted by a court?
If you have concrete evidence, that’s enough.
What if the situation was, that someone told you they saw this sign one time? Would that be enough not to shop there?
It's probably worth asking the owner whether it's true, and if so, let them know that's why you don't want to shop there any more.
Just trusting an allegation alone and walking away silently seems both less fair and less effective.
Also, sometimes you find out more to the story. Maybe the owner is very old, and it happened a long time ago, and he's since changed his attitude dramatically. Maybe you forgive him or maybe not, but then you at least put it in perspective.
In any case, certainly don't repeat the unsubstantiated allegation to others.
Of course not. You can make your own judgement based on the evidence you have.
I am standing up for the presumption of innocence when the evidence is lacking or in conflict.
Innocent until proven guilty (“the one who asserts must prove”) applies in courts because it is a fair standard — it’s not a standard limited to courts.
When we are in the position of having to determine if someone did something wrong, and what to do about it, we are faced with the problem of determining what is just and administering justice. The same basic rules apply to us, because we have the same basic problem: not allowing the tribunal or committee or even the court of public opinion to become another source of injustice.
I think these comments are exaggerated and misrepresent the situation, and no basis in fact is provided:
> the recent wave of "guilty until proven innocent" ...
> the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty,"
The stories I've read have done a good and careful job of corroborating and verifying their stories. Those that don't are subject to massive libel lawsuits like the one that shut down Gawker.
> smugly righteous
> hysteria
This is name-calling, which doesn't add to the discussion, and it's against nobody in particular, which makes it meaningless. Who, by name, is smugly righteous or hysterical? And do those people affect us? Are they representative or influential somehow?
> The stories I've read have done a good and careful job of corroborating and verifying their stories.
There are several good recent examples of this:
- the project veritas employee trying to shop a false abortion story to the post
- the schumer accusation that was shown to be falsified
- weinstein's fake accuser that was planted by his own team to discredit investigations
When people come with false information, it gets found and reported on, because journalists do their due dilligence. News organizations are really careful about this kind of thing, because screwing up here is a really good way to get your entire org badly burned.
The Duke Lacrosse case was a fine example of wrecking the lives of the accused, despite eventually being found completely innocent.
Talk of “innocent until proven guilty” is misplaced. In a workplace context, you’re not judging guilt and innocence. You’re resolving a civil dispute, where nobody’s freedom is at stake, only property. Even in courts the standard used for civil disputes isn’t “guilt beyond a reasonable doubt” but a mere “more likely than not” conclusion. I’m a civil litigator. We never talk about “innocent until proven guilty.”
Imagine you’re in a dispute with someone over where your property line is drawn. If someone presents an affidavit attesting to facts that show the property line is actually five feet into what you thought was your yard, and you have no facts to the contrary, guess what: you’re losing summary judgment. Civil standards give the defendant a very thin benefit of the doubt. Your accuser’s story just has to be a hair more believable than the other person’s alibi.
Workplace harassment cases are emphatically not like criminal cases. A false negative (acquiting a guilty person) usually has no direct negative effect in most criminal cases. A murder victim doesn’t much care if the state incorrectly acquits her murderer. Workplace harassment is more like the land boundary case. Somebody gets the land; a false negative means one party has been wrongly deprived of her land while the other party had received an undeserved windfall. In a workplace, likewise, an accuser who is telling the truth but is not believed is wrongfully forced to either continue working with her harasser, or to give up valuable career opportunities. A false negative (failing to believe a truthful accuser), is pretty much as bad as a false positive.
> Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives.
No, that's untrue. Innocent until proven guilty is only about the state's power to impose punishment. Innocent until proven guilty is used for even the most mild criminal offences where long term repercussions are unlikely.
A person's life can be destroyed in a civil trial where balance of probabilities, not beyond all reasonable doubt, is used. See all the parents who've been prevented from contact with their children because courts used balance of probabilities.
> If you replace “sexual harassment” with any other accusation, do you still feel the same way?
Yes, I do.
The reason I mention sexual harassment is that a lot of people are making accusations of sexual harassment. To believe that the accused are all innocent until I hear evidence otherwise until proven (i.e., to treat the accusations themselves and their consistency as having no information value) is to believe that all the accusers are lying. Very few people are making accusations of, say, piracy on the high seas, so I don't feel like I'm really believing that anyone is lying by holding the belief that piracy on the high seas is rare or that the average person is not guilty of piracy on the high seas.
There are a couple of other accusations I hear regularly. Some of them are things like "Police can murder citizens with impunity" and "The NSA is spying on us." I do think that those accusations should be heard and understood, and not dismissed in the court of public opinion on the grounds that the police and the NSA are innocent until proven guilty.
There are other accusations like "A pizza shop in DC is running a child-trafficking ring under its basement" or "Antifa poured concrete on Amtrak rails, causing the derailment earlier this week." For those I don't believe in holding the accusers guilty until proven innocent, either; a small amount of research can demonstrate to public opinion that the accusations are false on the merits and the accusers are guilty because of specific reasons. (Or, perhaps, the court of opinion can find that the accusers are generally people who make up stories, which still avoids applying a standard of guilty until proven innocent to similar accusations in general.)
...is to believe that all the accusers are lying.
For those I don't believe in holding the accusers guilty until proven innocent...
You've used this kind of phrasing a few times, but strictly speaking, not believing the accuser is not the same as accusing them of any crime -- being wrong is a not a crime.
It seems to me that you are saying, that practically speaking we either hold the accused guilty-until-proven-innocent, or we hold the accusers guilty-until-proven-innocent -- we have have to make a choice, in the absence of proof. Is my understanding correct?
> But humans don't work like that. When we think "innocent," we don't think "I have insufficient data," we think "they didn't do it". It is arguably a flaw in human thinking, but it's a flaw we have to live with and work with.
This interestingly maps to computer science. When talking about accusations for some reason we expect outcome to be binary, while the outcome is ternary. Binary logic is difficult, ternary logic is even more so.
Given ternary input state of accuser (false accusation, real accusation, ¯\_(ツ)_/¯ accusation) and ternary input of state of accused (guilty, not guilty, ¯\_(ツ)_/¯), I try to think of logical (relational?) operator/function which combines these inputs and yields ternary verdict. Given that output should be undefined unless both states are known, there should be AND between the states. Maybe something like Verdict = Accuser AND NOT Accused which would yield a verdict only if both accusation and guilt can be proven. But we still have a can of worms unopened regarding evidence and what evidence actually proves, because more likely than not evidence will prove or rule out possibility that something has happened
So during the Obama era, rules were put in place to force colleges to deal with sexual assault accusations. The basic idea is sound: the university needs to do something when one student accuses someone else. Applying a criminal standard of proof is incredibly unfair. In the case of a false negative, that results in some student being forced to continue attending classes with her rapist, or to give up educational opportunities by leaving the school herself. Unlike in the criminal context, a false negative (incorrect acquittal) has a direct prejudicial impact on the victim. A rape victim whose rapist doesn’t get convicted may suffer a moral loss, but it’s not like conviction can undo the rape. Accordingly, many women don’t even press charges. But in a college context, the victim is seeking something that can actually help. Not punishment of the accused, but freedom to continue her education without the threat posed by the accused.
Once you realize that false negatives are as harmful as false positives, then it makes sense to use a civil standard instead of putting a thumb on the scale for the accused. Statistically, sexual assault is far more common than false accusations. Applying a criminal standard results in a lot of social harm through false negatives that isn’t outweighed by avoiding false positives.
Where I think Title IX goes off the rails is treating these cases as being about punishment. Civil standards aren’t for punishment, they’re for resolving disputes. In this context, it’s not about deciding whether the accused is guilty of rape, but about deciding: “which student should be the one to leave?” I think Title IX resolutions should be secret and the only remedy should be expulsion or some sort of internal restraining order.
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> In the case of a false negative, that results in some student being forced to continue attending classes with her rapist, or to give up educational opportunities by leaving the school herself.
You're excused.
Wasn't planning on batting politics here on HN, but - I'm inclined to agree with asfd... who has apparently deleted their comment. How annoying.
> The basic idea is sound: the university needs to do something when one student accuses someone else.
No, that isn't sound. It's a criminal matter. You don't inform your professors, you don't inform your employer, you don't inform your gardener, you inform the authorities. We're not talking about plagiarism here, we're talking about a criminal offence.
As a Brit, the idea that a college should have some sort of mini criminal justice system, seems utterly absurd. The only institution with its own criminal justice system, is the military, and they take it every bit as seriously as the civilian world.
> Applying a criminal standard of proof is incredibly unfair.
We're talking about adults dealing with crime. How is the criminal justice system any more unfair simply because both the victim and the suspect are both students at the same institution?
> Unlike in the criminal context, a false negative (incorrect acquittal) has a direct prejudicial impact on the victim.
That's a nasty attribute of rape, and of various other crimes, not of colleges.
Aren't most rapes committed by someone the victim already knew? You seem to be treating the college case (where both are students of the same institution) as categorically different from a case where the suspect is a friend (well, 'friend') or colleague of the victim.
I don't see it. I certainly don't see it as a justification for lowering the burden of proof, or for letting the suspect escape ordinary criminal-justice proceedings.
> But in a college context, the victim is seeking something that can actually help. Not punishment of the accused, but freedom to continue her education without the threat posed by the accused.
Again I don't see a category difference here. If the suspect is a colleague, or a member of a social circle shared with the victim, the same issue arises.
> Once you realize that false negatives are as harmful as false positives
Of course false negatives are harmful, it would be absurd to deny that, and no-one is doing so. That is the case for all serious crimes. It remains necessary to insist on a high standard of proof, and on presumed innocence.
> sexual assault is far more common than false accusations
You seem to be assuming that this ratio is set in stone. If you make it easier to make a false accusation 'stick', we would expect them to happen more often.
> In this context, it’s not about deciding whether the accused is guilty of rape
But it is. The consequences of the accused being found guilty can be severe, no? If a rape has occurred, a crime has been committed. Dealing with crimes is not within the purview, or the competences, of a college.
> No, that isn't sound. It's a criminal matter.
What distinguishes criminal matters from civil matters is the remedy sought. For example, OJ Simpson was acquitted of murder, applying criminal standards of proof. But he was found liable for wrongful death, and ordered to pay damages to the families, applying civil standards of proof.
Criminal law and civil law address different concerns, and the same conduct can raise both criminal and civil issues. Criminal law vindicates the government's interest in retribution, deterrence, or rehabilitating an offender. It does not generally address the victim's personal rights. Thus, the government can prosecute when the victim does not want to, and vice versa.
In a campus rape case there is a criminal aspect. But there is also a civil aspect. Students have a civil legal entitlement to pursue their education at schools receiving government funding free from harassment. Forcing a student to either continue attending classes with her rapist, or to leave the school is undoubtedly an infringement of that legal entitlement. That civil concern is wholly distinct from the criminal question of punishing the rapist.
> That's a nasty attribute of rape, and of various other crimes, not of colleges.
No, it's a distinction between civil and criminal aspects of a course of conduct.
Say you hit me with a car because you were driving drunk. There is a criminal aspect to the case (driving drunk is a crime), but there is also a civil aspect to the case (hitting someone with a car due to negligence is a tort giving rise to damages liability). You being erroneously acquitted of drunk driving under a criminal standard of proof doesn't hurt me. It's a moral loss, nothing more. But you being erroneously found not liable for negligent driving does hurt me. It means I'm forced to bear my medical costs, and have been erroneously denied compensation. The false negative (an wrongfully injured person being forced to bear their own medical costs) is just as bad as the false positive (a wrongfully accused person being forced to pay someone else's medical costs). So in the civil context, we do not apply the maxim of "better to let ten guilty men go free than convict one innocent man." Because it's not better to find 10 people not liable for drunk driving when they did so than to find one person liable for drunk driving when he did not. That results in 10 victims who are wrongfully denied compensation for their injuries. So that's not the standard we use. Instead, we weigh credibility under a "more likely than not standard."
The same is true for sexual assault and sexual harassment in the workplace or the school. Applying criminal standards of proof in that context, what you're saying is: "it's better to force 10 people to continue to attend classes/go to work with their harassers/rapists than to force 1 person to quit their job/school due to a false accusation." But that doesn't make any sense. In both cases (false positives and false negatives), someone is wrongfully denied educational opportunities. Saying that it's okay to have 10 of one outcome to avoid 1 of the other outcome basically just says that false accusations are somehow worse than sexual assault.
> I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust.
But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation.
> Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world.
First, that's not true. We have both formal and informal ways of dealing with people who have wronged you, who you can't have convicted. For example, you can get a restraining order in Maryland using the same "preponderance of the evidence" standard Obama proposed for Title IX proceedings. You can sue someone for fraud or breach of contract for screwing you on a business deal, under the same preponderance standard. You can also use informal social mechanisms. Entrepreneurs live and die by their reputations, for example.
Second, this begs the question. I pointed out that in the case of both false negatives and false positives, someone is denied the opportunity to pursue their education or their employment. My thesis is that we should not treat one of those bad outcomes as being better than the other. Your response boils down to "false positives are really bad, but false negatives are just something you have to deal with." But why?
> Give people incentives to do bad things, and they will do them.
Incentives are created in both directions. How many careers do you allow Harvey Weinstein to wreck in order to avoid erroneously wrecking the career of a film producer who is innocent? That's the calculus you refuse to grapple with.
> if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?"
So you're fine with expelling a student (and likely ruining his life) on the basis of the findings of this 'court', so long as we don't admit that it's effectively a punishment?
> You can't ignore the cost of false negatives in order to avoid false positives.
So you disagree with Blackstone's "It is better that ten guilty persons escape than that one innocent suffer", I take it?
Erring on the side of 'not guilty' is a cornerstone of civilised justice systems. It isn't 'ignoring' anything.
> if you're being rational, you're trying to minimize SocialCost(false_positives) + SocialCost(false_negatives).
No. Again I refer you to Blackstone's formulation. Your utility function fails to capture the whole picture.
> Setting the burden of proof high to minimize false positives does not minimize the total social cost.
Yes it does. Blackstone was right.
What you are suggesting undermines the legitimacy of the justice system, which brings great costs. It also makes false accusations more likely, as well as more harmful.
It also assumes that a bad outcome is no worse for having been committed by the state, which is not so; it is far worse that an injustice be committed by the state than by ordinary citizens.