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Monday, July 16, 2018

Colb on the presumption of innocence

This post by Sherry Colb is outstanding, helping to explain away a trap that I have fallen into in thinking about sexual-assault accusations, specifically acquaintance sexual assault.

Her explanation of presumption of innocence matches how I teach it in Evidence, as the assignment of the initial burden of production. The default conclusion is innocence, unless and until the party opposing innocence (the prosecution) introduces sufficient evidence of not innocent. And the competing stories of the victim and the defendant are two bits of evidence to be considered. Then, having carried that burden, the jury must be strongly convinced.

Colb is right that sexual assault is not the only type of so-called he-said/she-said; she gives the example of a mugging in which the evidence is competing testimony between the victim and the defendant's mother, but argues that we never would deride such a case as he-said/she-said. The difference is the underlying misogyny that Colb says permeates sexual-assault cases. Because that misogyny bad a particular evidentiary consequence--the allowance of evidence of victim character. We do not, and never have, allowed such evidence in the mugging case. And despite recent efforts such as rape-shield statutes, the use of such character evidence has not gone away.

Posted by Howard Wasserman on July 16, 2018 at 08:44 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink


If you're going to put someone on the sex-offender list and take away their right to vote, you think you'd at least want physical/DNA evidence that the people in question actually had sex--even if whether or not it was consenual turns on the woman's testimony.

The amount of evidence needed for conviction should match the amount of punishment. Would you want your 18-year-old husband put on the sex-offender list for the next 25 years based on testimony alone?

Posted by: Marshall | Jul 16, 2018 10:19:21 AM

Would you mind your 18-year-old son living at home for the next 25 years (because he's on the sex-offender list and can't get an apartment) based on testimony alone?
Or would you at least want DNA evidence that he had sex with his accuser before you had to live with him for another 25 years?

Posted by: Holden Caulfield | Jul 16, 2018 10:48:34 AM

No, we tend to call cases he-said she-said when we feel the parties are similarly situated with respect to each other with motives to deceive.

For instance if two men get into a fight without witnesses and one alleges it was an unprovoked assault while the other alleges they were defending themselves from an attack or didn't strike at all. If one neighbor claims they saw the other deface their house that also is he-said/she-said.

The reason we don't call muggings he-said/she-said is because we feel the fact that, absent making an accusation, the mugged party presumably has limited contact or association with the mugger making it less plausible they would bother to lie to jam up someone they've never meet to no gain. Indeed, if this was directly about misogyny then we would also call accusations of stranger rape he-said/she-said but we don't.

Now, if you happen to believe that the incidence of false rape reports is orders of magnitude less prevalent (relative to true reports) than in other serious criminal allegations (comparing like to like in terms of acquaintance/intimate/stranger alleged attackers) that might justify withdrawing the he-said/she-said label to acquaintance rape allegations. However, this is an empirical question with no truly high quality evidence or obvious prior so one can't assume failing to believe it is therefore misogyny.

Posted by: Peter Gerdes | Jul 16, 2018 10:51:26 AM

I'd just add that it seems any account of what's going on needs to explain the difference I raised above between what we say about stranger versus acquaintance rapes. So some factor other than merely the gender of the victim must be invoked to explain why we call some crimes he-said/she-said while not others even without knowledge of any particulars. I offered one hypothesis above and maybe others are plausible.

But to make the case for misogyny you must (at least) explain the general pattern in what crimes we will apply that label to (it's not only crimes with female victims nor will we fail to apply it to serious crimes with male victims etc..) and *then* make the further case that the explanation of the non-gender related variation in usage doesn't separately predict this outcome. That's not an implausible case to make but we are very far from having made it.

Posted by: Peter Gerdes | Jul 16, 2018 10:56:28 AM

If it's about misogyny, was there more women convicted of draft-dodging than men during Vietnam?

Posted by: Nam-mery glands | Jul 16, 2018 12:20:07 PM

Interesting indeed , but beyond complicated Universal legal issues , the issue of sexual assaults , is far greater more complicated than that one presented in the related post :

The respectable author of the related post, claims in sum , that :

" …..it is time for jurors – and prosecutors , police officers , and the public – to recognize that acquaintance rape victims are just as credible when they testify under oath as are the victims of other crimes "

End of quotation :

Yet , the author doesn't really explain why is it so typically . It is not necessarily misogyny . She brings one illustration , where raped woman , may be asked first , whether she has boy friend ( so potential cheating , would be revealed to her boy friend ) . This is very far , from explaining very complicated issue and dynamic , and just one point or illustration :

Sexual assaults , differentiated from many other crimes , may be perpetrated , by white collar persons . It is hard to trace many cases of robbery for example , perpetrated , by normative people . In many crimes , The distinction , is very clear : White V. black .But , when reaching sexual assault ( all kinds ) the distribution , is almost equal . It can and does occur , Whether by criminals by nature , whether white collar or normative people .

This is causing hell of complications . Sex is occurring on daily basis of course . There is a very thin line , distinguishing between , normal sex , out of free will , and sex with bad dynamic . Things are mixed and messy . Signs many times , are not very well read by men ( especially too many men , predators by nature ) . So , it may start normally , and finished abnormally finally .

Many times , many men , find it hard for example , to distinguish between sex , and being sexy or just looking sexy ,reading badly and wrongfully so the signs .

Finally , it is expressed so in court .


Posted by: El roam | Jul 16, 2018 1:28:37 PM

"acquaintance sexual assault"

Perhaps none of you read the actual article, but nowhere in the article does she use the words "sexual assault".
The article is very specifically about RAPE (she uses the word "rape" 22 times, how did you miss it?)--which results in losing your right to vote and having to register as a sex-offender for the next 25 years.

Do you want your father or son to have to register as a sex-offender based on testimony alone? or would you at least want a rape kit to match their DNA to the crime?

Posted by: Where did you see the word "assault"? | Jul 16, 2018 2:23:55 PM

Where did you see the word "assault" ,

Read well the article . It is about the credibility of women testifying as victims in courts. It doesn't matter whether the word " rape " appears and how many times. Even not the lack of the words " sexual assaults " . For how would it matter ? The phenomenon is the same . Due to sexual relationship and events of such , there is a complaint , and criminal process , and typically , the credibility of testimonies of women , are undermined or perceived typically , and not reliable . How does it matter to count words here ? It does stem from the same underlying mechanisms , as I have bothered to explain ( at least one , it is too complicated ) .

We deal here with essence , not appearance ….. get a grip !!

Posted by: El roam | Jul 16, 2018 2:38:51 PM

Just correcting my comment above :

Should be : as not reliable , and not as written : " and not reliable " .


Posted by: El roam | Jul 16, 2018 2:41:39 PM

"The phenomenon is the same."

Yes, but the punishment isn't.

Convicting someone of sexual assault and giving them six months in jail is one thing. Convicting someone of rape and putting them on the sex-offender list for 25 years and taking away their fundamental right to vote is much harsher and therefore should require more evidence to prove beyond a reasonable doubt.

It's like saying "if it's OK to convict someone of libel based on testimony alone, why can't we convict someone of treason on testimony alone?"
And the answer is, because the punishment for treason is so much greater that you want to make sure that it isn't given out to the innocent.

Just like you wouldn't want to put someone on death-row based on testimony alone, you wouldn't want to put someone on the sex-offender list and take them off the voter-registration list, based on testimony alone.

Posted by: Legal Phenomenology of the Spirit | Jul 16, 2018 3:17:29 PM

Legal Phenomenology of the Spirit ,

This is not the issue of the related post . Once again , the issue , is the reliability of the testimonies of women , victims of sexual offenses . That's it !! The author of the article , is dealing with the fact , that as perceived not once by the public , by prosecutors , police officers , jury and so forth….. Those testimonies , are inherently perceived as unreliable . That thing is related to the following factors ( differentiated from other type of crimes , like robbery , mentioned by the author ) :

- Those are women

- The offense is sexual one ( she used the word " rape " but doesn't matter , for " rape " is one kind of sexual offense ) .

But the respectable author of the post , explained it , by stating vaguely , that is does stem from misogyny . That is not sufficient !! For , not everybody are so . One can't presume that : the entire public is so , as well , police officers , prosecutors and so forth…. There is a reason for it. There is an underlying mechanism . I have explained it partly . And that's it !!

The sentence and punishment , is not the fundamental phenomenon . It doesn't stem from the level of punishment . If the issue , is the credibility given to such testimonies of women , how would it matter the level of punishment ? It is something has to do with the perception of the nature of women and sexual relationship , and wrong social interaction and dynamic .

For , if a person , a man , is launching hands , into the underneath of the skirt of a woman , forcibly , without any consent , then , it is not rape . Yet , an offense , and sexual as such , and assault as such . Yet , her testimony as well , may be perceived as unreliable . Some for example , may accuse her , for wanting to draw attention , getting publication and so forth….. yet , no rape , no full penetration , and not the same level of punishment . But , doesn't matter at all !! Women would still be blamed for it .


Posted by: El roam | Jul 16, 2018 3:45:02 PM

Mama John ,

Read my comment above . It is not the issue , the issue is the reliability of testimonies of women , victims of sexual offenses . And by the way , it may happen , that more reliability would be granted to women , complaining for rape , over other sexual offenses . For , it takes much more audacity , to complain on such level of offense , with full act and penetration , than hanging around sexually .


Posted by: El roam | Jul 16, 2018 3:49:36 PM

Let's say your son comes to you and says, "I've been accused of rape."

What's the first thing you say?

"Let's start from the beginning, did you have sexual relations with that woman?"

If he says, "No, I did not have sexual relations with that woman. There can't be any of my DNA on or in her."

Do you say "well her testimony is fact, so you're still going to prison" or do you say "if there's no evidence you even had sex with her, then you have nothing to worry about--you can't be found guilty of rape without first being found guilty of having sex--and sex leaves a trace, that's why we have rape kits"?

Posted by: Van Wilderness | Jul 16, 2018 4:08:53 PM

Let's say a woman comes forward and gives testimony that her local newspaper defamed her.

Would her testimony alone be enough to send the journalists to prison for defamation? Or would you prefer that she put forward at least evidence that the journalists in question actually wrote the article and did so with reckless negligence for the facts and her reputation?

Is it only in rape cases that you want her testimony to be believed as the gospel?

Posted by: Sullyvan's plane rescue | Jul 16, 2018 4:21:31 PM

Prof. Colb's piece was pretty explicitly about acquaintance cases in which consent is the sole issue in dispute. She was not talking about disputes over whether sexual contact occurred, although there may be cases in which there is no physical evidence (despite what TV would have you believe). And nalogies to issues such as the defendant's state of mind in a defamation case, facts that the victim cannot testify to, are irrelevant and pointless.

Posted by: Howard Wasserman | Jul 16, 2018 4:28:18 PM

"Prof. Colb's piece was pretty explicitly about acquaintance cases in which consent is the sole issue in dispute."

Did you read her article? She is explicitly talking about cases where there is "No physical evidence"--A sex tape, rape kit, etc. would be physical evidence that sex had taken place.

Colb--"We do not require physical evidence or corroboration in other crimes, so there is no reason to require them in acquaintance rape cases."

Posted by: We do not require physical evidence | Jul 16, 2018 4:48:52 PM

"Prof. Colb's piece was pretty explicitly about acquaintance cases in which consent is the sole issue in dispute."

No, she's clearly talking about cases in which the sole evidence is the "victim’s testimony alone".

Colb--"They compound this mistake by imagining that we must give as much credence to the defendant as we do to the alleged victim and that we cannot convict a rapist on the basis of the victim’s testimony alone."

Posted by: Testimony alone | Jul 16, 2018 5:02:03 PM


If you're so confident that she doesn't think someone can be found guilty of rape so long as the accused denies that sex ever took place, why don't you allow her to speak on that very issue on your very own blog?

Please, ask her to write a blogpost on whether or not a person can be found guilty of rape if there's no evidence the person had sex--like in statute of limitation cases, which are the very ones her original post was about . . .

Posted by: Give her space | Jul 16, 2018 5:15:11 PM

"Prof. Colb's piece was pretty explicitly about acquaintance cases in which consent is the sole issue in dispute."

Really? Then why is she using an example of when the accused says "I didn't do it"?

Colb--"The notion that a jury cannot convict a defendant on the basis of “he said/she said” is another erroneous misconstruction of the burden of proof. Prosecutors regularly win criminal cases on the basis of an eye-witness’s account of the crime, even when the accused says “I didn’t do it.”

Posted by: Are you blind? | Jul 16, 2018 5:49:18 PM

The post uses a classic prosecutor's fallacy. While it's true that the complainant generally has no reason to lie, the defendant faces a risk by committing a crime. So we shouldn't just look at accusations as a swearing contest between someone who has no reason to lie and someone who does, we should look at it as a choice between two different, and unlikely, bad acts: a crime or a false accusation.

I suspect the difference between the way we view acquaintance rape and armed robbery has as much to do with the fact that one is a dispute among acquaintances.

Posted by: ShelbyC | Jul 17, 2018 1:04:04 AM

There's a lot of people in this thread who seem to be conflating the standards for conviction in a criminal case with the potential punishment. I've never heard a comparable argument that a shoplifting case should be much easier to prove than a murder case because the punishment is much greater for murder. We generally have separate policy discussions about the appropriate punishment for a specific crime, and the general principles under which we understand what the prosecutor's burden is in the realm of criminal law. To me, the conflation of the two seems unhelpful, but if we're going to do it, we should at least admit that's what we're doing.

As for the merits of the argument, I'll just say that it's very telling that the argument often being made here isn't "let's lessen the punishment for rape, perhaps by getting rid of or dramatically reforming sex offender registries" (an argument I'd potentially be in support of, depending on the particulars), but instead it's "we shouldn't let one woman's testimony convict someone of a crime." If the punishment were truly what people were concerned about, I imagine they'd be at least somewhat more interested in the former than the latter. As it is, it seems like something else is motivating these discussions.

(To return this to the original topic of the blog post, I thought the Colb piece was remarkably clear and convincing. The mantra of "believe women" that's so common to hear these days isn't a call to treat sexual assault and rape cases differently than other crimes, but a reminder that we should be treating them the same, and Colb demonstrates that admirably.)

Posted by: J | Jul 17, 2018 6:42:58 PM

htt ps://scc-csc.lexum.c om/scc-csc/scc-csc/en/item/288/index.do

One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.

If the woman's accusations are presumed to be irrefutable facts, then any defense against such accusations would be so difficult to obtain to be illusory.

Posted by: Canning Anada | Jul 18, 2018 4:29:43 AM

'Innocent until proven guilty' means that the jury suspends judgment on the accusations until both sides have told their side of the story with all relevant evidence, and only then, they decide whether or not the accused has proven beyond a reasonable doubt that the other person is guilty of the accusations in question.

Once the accusations are presumed to be true, the trial is over because that's the very question that the trial is about. If the accusations are assumed to be true before the trial begins, then the trial is over before it has begun. There can only be a meaningful trial if the accused is given an opportunity to sway the jury's mind about whether or not the accusations are true.

If we assumed all the female witnesses in the Michael Brown case were telling the truth, Darren Wilson would've had no way to be found not guilty.

Posted by: Suspendion of belief | Jul 18, 2018 6:14:50 AM

"Canning Anada" and "Suspendion of belief" - I recommend reading the article we're all responding to. Nowhere did anyone suggestion that a woman's accusations are ever irrefutable facts, nor should they be treated as gospel truth by juries and judges. As such, you're both arguing against a position literally no one is taking, and your contributions are not moving the topic forward at all.

Since it seems that many people would prefer not to actually read something before commenting on it, I'll provide a brief summary of what I think the key points are here:

The issue is solely this - do we treat accusations of sexual assault the same way as we treat accusations of robbery, or do we make accusations of sexual assault carry some sort of higher burden? That's it. If you agree they should be treated the same, then we should start from the perspective that a person is telling the truth about their circumstances, since that's what we do in robbery cases. That means we should look for the evidence that provides more light on the victim's story rather than dismissing it out of hand. That means the defense attorney should generally argue that the woman is mistaken about the identity of her assailant rather than accusing her of lying about it unless there is CLEAR evidence of lying (imagine if you get mugged—how likely is it that, when you testify in court, the defense attorney without evidence accuses you of lying about having been mugged instead of simply trying to argue that her client was not the perpetrator?). And it means that we should understand that, just like in every other criminal case, victim testimony is a form of evidence that the jury can and should assess, rather than saying "oh if it's only her testimony, then there's no evidence."

Posted by: J | Jul 18, 2018 12:41:20 PM

"I've never heard a comparable argument that a shoplifting case should be much easier to prove than a murder case because the punishment is much greater for murder."

Isn't the standard "preponderance of evidence" in misdemeanors and "innocent until proven guilty" in felonies? That sounds like a dramatic proof difference based on possible punishments--misdemeanors don't lead to the loss of the right to vote, while felonies do.

Posted by: Derrida makes all the difference | Jul 19, 2018 9:09:08 AM

No. The standard of persuasion in all criminal cases, regardless of level or punishment, is beyond a reasonable doubt.

Posted by: Howard Wasserman | Jul 19, 2018 9:13:48 AM

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