« A Series on Funding Legal Scholarship | Main | The Lunchtime Law Quiz »

Sunday, February 09, 2014

Misusing and misunderstanding the language of law

I do not agree with everything in this Dahlia Lithwick piece on the Dylan Farrow/Woody Allen mess. But she makes a couple of good points about the unfortunate things that happen when the language of law gets abused in the court of public opinion (or, as she calls it, "litigation by hashtag").

First, she has a good takedown of this incoherent nonsense that Allen is not the only one who enjoys a presumption of innocence; Farrow does, too--a presumption of innocence of making false allegations against Allen. As I tell my students, presumptions are about burdens of proof; a presumption of innocence means that those attempting to prove non-innocence bear the burden of offering evidence (burden of production) of non-innocence and the burden of convincing the factfinder (burden of persuasion) of non-innocence. To accord a similar presumption of innocence to the accuser is to shift the burden of proof to the accused to offer evidence and convince the factfinder to the accused party that the accuser is untruthful. But you can't have it both ways. The reason for the presumption (and thus the assignment of the burdens) is because the party proving non-innocence is asking a government body (the court) to formally deprive the accused of life, liberty, or property. It is that threat of official governmental sanction that properly places the burden on the accuser.

Of course, those who defend Allen via the shibboleth of "presumption of innocence" similarly misunderstand the concept. Farrow's accusations are evidence, and one could read her account and the other reports of her accusations and conclude that Allen did what she accuses him of doing. One can disbelieve her story or insist it is not enough (especially by throwing around a second shibboleth--"beyond a reasonable doubt"). But one cannot claim that her story is not evidence and thus at least an attempt at the burden of production.

Second, Lithwick criticizes the very idea of the "court of public opinion," because it is a court unbounded by any rules--and a court is defined by its rules. Those who speak of that court never identify what evidence is admissible (e.g., internet trolls calling Farrow a "bitch"?) , what the standards and thesholds are, what to do about lost evidence, what role cross-examination plays, and even who bears the burden of proof. Lithwick's point is that the court of public opinion is often nothing more than opinions (often uninformed) dressed up in "fancy talk" of burdens of proof" and "presumptions of innocence," none of which is helpful. I suppose the court of public opinion could place the burden on the accused. But then own that this is what you're doing.

Finally, a third point that Lithwick does not mention, but that has bothered me through much of this conversation. Everything is clouded by confusion about standards of proof and when and how they apply. One refrain is that Allen has never been convicted of anything and that no one has ever offered proof beyond a reasonable doubt. Because of that absence of a judicial finding B/R/D, either we just do not know what happened and never will (from those who cannot decide) or clearly he did nothing wrong (from Allen's defenders).

But there is a difference between whether someone did something wrong and whether someone should be criminally sanctioned by the state for doing something. The beyond-a-reasonable-doubt standard applies only to answer the latter question. But have other ways to determine whether someone did something wrong, notably civil proceedings, governed by a lower standard of proof, such as preponderance of evidence. Although we do not put people in jail when there is only a preponderance of evidence, we impose other sanctions that obviously are based in a conclusion that the accused did something wrong. And a civil judgment ordinarily is enough to conclude that someone did something wrong. (I wrote something similar following the jury verdict in the sexual harassment case against the Knicks and Isaiah Thomas in 2007).

In this case, there was a civil proceeding to determine custody of the minor children when Allen split with Farrow in 1993, a proceeding governed by the preponderance standard. In that proceeding, Allen was denied full custody and all visitation with Dylan (the court's order is here). There was no finding that Allen sexually abused Dylan, although the judge found that Allen's "behavior toward Dylan was grossly inappropriate and that measures must be taken to protect her." Thus, to the extent legal sanctions other than jail (e.g., custody and visitation) and non-legal sanctions (whether to ever watch a Woody Allen movie) can be imposed on a lesser standard of proof, it is at least arguable that we do have that. So to say Allen has never been found to have done anything wrong is incorrect--this becomes clear once we really understand what standards of proof are all about.

Posted by Howard Wasserman on February 9, 2014 at 10:31 AM in Culture, Current Affairs, Howard Wasserman | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Misusing and misunderstanding the language of law:


"Textbook question begging" would have been using my conclusion as a premise.

I didn't do that.

I disagreed with your contention that, assuming Dylan Farrow is some variety of "victim" (and not a criminal, a slanderer, etc.) under any of the factual scenarios you list as plausible, then, therefore, "burden and guilt talk with respect to [Dylan] is entirely misplaced."

It might be misplaced if her being a victim somehow insulated her from being harmed when she is characterized as brainwashed or mistaken about this very important thing, but it doesn't; instead there are other good reasons we should be careful about giving Allen the benefit of the doubt and publicly disputing her first hand account. I tried to list some of those reasons. Perhaps they seem like obvious truisms, but I thought you might have missed them when you concluded from her apparent victim status that the "burden and guilt talk with respect to that Farrow is entirely misplaced."

I disagree that 7 year olds are generally terrible or very unreliable witnesses when reporting 1st hand experience with sexual abuse, as here.

But, to engage again on the use of terminology: The Bady piece notes that many people, non-lawyers, require "proof beyond a reasonable doubt" before they will believe sexual abuse survivors. This attitude is a stupid one, and it is harmful to a vulnerable population. His piece may contain some cringe-worthy use of legalese, but it nevertheless has a lot of merit, IMO, and I would hate to think we are dismissing offhand any cultural criticism by laypeople who have the temerity to use legal terminology imprecisely. Especially terminology that has made its way into common parlance, for better or worse.

Posted by: anon | Feb 10, 2014 10:40:37 PM

"Dismissing or discounting survivors' truthful accounts of abuse as the product of manipulation is--quite obviously--damaging and upsetting to survivors of abuse, and we should try to avoid doing this."

That reads like textbook question begging. Obviously one ought not to dismiss *truthful* accounts of abuse, just as one obviously ought not to credit *false* accounts of abuse.

Likewise, of course, a person fully convinced of a false memory doesn't wish to be characterized as brainwashed.

None of these truism help at all with the underlying problem viz. that seven year olds make terrible eyewitnesses.

Posted by: brad | Feb 10, 2014 8:01:39 PM

No subject of the current brouhaha is actively being accused in any civil or criminal proceeding, but, with regard to the extensive media coverage, Dylan Farrow has been accused by numerous vitriolic commenters of making the whole thing up. Others have said that we can never know what happened, so we, the public who are following this in the media, should give Allen the benefit of the doubt (thereby taking the benefit of the doubt away from Dylan, when she arguably has the better claim to it). But, Brad, there definitely isn't unanimity on the point that Dylan is an innocent victim-of-something-or-other-though-possibly-not-what-she-claims.

In any event, Dylan has made it very clear that she strongly prefers NOT to be characterized as brainwashed or as a survivor of something unknowable, possibly not of what she actually recalls, but at least of some other thing (like crazy mothering).

Dismissing or discounting survivors' truthful accounts of abuse as the product of manipulation is--quite obviously--damaging and upsetting to survivors of abuse, and we should try to avoid doing this.

Yes, legal burdens of proof and persuasion don't exist in the extra-legal context of media reporting and media consumption. But, in evaluating the claims of survivors and in determining whether to credit their accounts, people do use heuristic devices to decide how much weight to give to whom, and whom to defer to when the truth cannot be known. And some of these heuristics are deeply problematic.

We have many cultural norms that relate to extra-legal burdens of persuasion, and it's okay--important even--to critique these norms. Discourse where legal language is used imprecisely is concededly frustrating, but that doesn't mean these conversations aren't worth having at all.

Posted by: anon | Feb 10, 2014 5:25:49 PM

If Dylan Farrow is convinced she was sexually assaulted when she was seven years old, and she actually wasn't, then she is not a slanderer, perjurer, or false accuser but still a victim -- a victim of a mother willing to implant a terrible and psychologically damaging false memory in order to strike out at a man who scorned her. So burden and guilt talk with respect to that Farrow is entirely misplaced.

Posted by: brad | Feb 10, 2014 3:39:11 PM

[To amend one thing, yes, some will be concerned about any wrongdoing Allen did to harm the interests of the child here, but the alleged sexual abuse is in more people's minds, something truly heinous and on a different level than other things.]

Posted by: Joe | Feb 9, 2014 4:25:12 PM

Yes, not being prosecuted or even not being found liable (which can be a result of various things -- e.g., Paul Newman's clients very well could have lost their case against the diocese in "The Verdict" because of evidence rules, but "the public" could have reasonably held otherwise) doesn't mean a person is 'innocent' in the 'court of public opinion.'

There is a certain level of proof with various procedural rules in place that must be followed to lose life, liberty and property with the assistance of the government. All the same, I think it important to promote some degree of care before "convicting" people in any sense of the word. This holds true in other contexts -- the First Amendment, e.g., applies to the government. Nonetheless, promoting the free expression of ideas etc. should be a general principle.

The Huffington Post link addresses the Yale New Haven Hospital study noted in one or more comments. The judge addresses problems he had with it. I really can't say who has the better case. But, it is noted that the concern there was not only the immediate issue specifically -- sexual child abuse -- alone, but general wrongdoing on Allen's part. Sexual abuse is the thing people care about here, right? Not if he "done anything wrong" which can be a stream of wrongs when it concerns treatment of child and child custody issues.

Finally, in different ways each party should have some sort of presumption of innocence (to the degree the "court" of public opinion etc. has that ideally or whatever). One person is liable to lose his good name because of child abuse claims. Another (Farrow) is alleged to be slandering him. That TOO is a wrongdoing. Allegations of slander (or lying for favorable child custody rulings etc.) might not be as bad child abuse, but it still is wrong. Before EITHER can be found "guilty" some degree of burden should be met.

Posted by: Joe | Feb 9, 2014 4:20:52 PM

Regarding Aaron Bady's piece of cultural criticism for the New Inquiry, I don't agree that it is incoherent nonsense. It may contain some imprecise--or at times even arguably incoherent--use of legal terminology, but there is a very important point in Bady's piece (a piece that, even while critiquing it, Lithwick called "fantastic").

Bady turns on its head the notion that we, qua readers and observers, should give Allen the benefit of the doubt. Instead, Bady argues for giving the benefit of the doubt to the accuser when evaluating Dylan's account, a scenario where no legal process is due.

The argument is based in large part on the premise that as a culture we are too dismissive of a set of accusations--accusations of sexual abuse--that are far more often true than false. That we are too eager to protect the good name of the accused, and that we are too skeptical of reporters of sexual abuse, a cultural phenomenon that further burdens survivors of sexual abuse. Many disagree with him, of course, but there is more than nonsense there. He challenges the reader to rethink her prior assumptions about who--if anyone--is entitled to the benefit of the doubt when disputes like this play out in the media.

You write, "I suppose the court of public opinion could place the burden on the accused. But then own that this is what you're doing." I agree, but--unless I am misunderstanding you--Bady does come pretty close to owning that he is calling for exactly that:

"We are in the midst of an ongoing, quiet epidemic of sexual violence, now as always. We are not in the midst of an epidemic of false rape charges, and that fact is important here.... All things being equal, the explanation that doesn’t require you to imagine a conspiracy of angry women telling lies for no reason is probably the right one. It’s a good thing that juries can’t think this way...because—in theory—the juridical system needs to get it right every single time.... But you and I can recognize the bigger picture, because we aren’t holding a person’s life in our hands. Especially in situations like this one, the overwhelmingly more likely thing is that he did it. The overwhelmingly less likely thing is that a pair of bitter females—driven by jealousy or by the sheer malignity of the gender—have been lying about him for decades."

Thank you for linking to the 1993 order. It is difficult to square the pages of factual findings detailed there with Allen's version of events; he dismisses these factual findings as springing from the Judge Wilk's disapproval of his love for his now wife, but they are some of the only real findings available that were the result of legal process, and they do seem to contradict Allen's recent self portrait that appeared in the Times.

Posted by: Anon | Feb 9, 2014 3:24:39 PM

So, we should invoke the ghost of a certain criminal defense attorney I will not claim and — ignoring that there was a later civil trial reaching the opposite conclusion — proclaim that because the glove does not fit, we must acquit?

I don't know any of the people involved. I've never examined any of the evidence, primarily because it just doesn't matter to me (art is not a congruent set with artist*). Nonetheless, the entire argument bears an uncomfortable resemblance to ideological condemnation of political opponents (and it doesn't matter whether one is referring to Daleyite Chicago, Pendergast Kansas City... or Reaganite US/Stalinist Soviet politics). There might be some facts buried in there, but they've been betrayed by their bodyguard of lies, of irrelevancies, and of misremembrances.

* I've never seen calls to remove Ezra Pound from the canon. And that's an unusually direct relationship; closer to this one, Chinatown is not Polanski.

Posted by: C.E. Petit | Feb 9, 2014 12:48:22 PM

Here is the website for the Yale clinic:


Here is an interesting Q&A with the head of the clinic, who was also the panel chair in the Farrow investigation:


Maybe it's just me, but I find the New York courts' blasé dismissal of the results of an extensive investigation by an unquestioned team of experts in the field to be very disturbing. Especially because they didn't have to do that -- there was adequate grounds apart from the abuse allegations to deny visitation (and indeed, the best reading of the opinions is that visitation was denied on those other grounds). It seems to me that the trial judge especially took an intense disliking to Allen, perhaps bordering on the unprofessional.

Posted by: Following up | Feb 9, 2014 12:12:30 PM

Here's a portion of Woody Allen's letter:


Meanwhile the Connecticut police turned for help to a special investigative unit they relied on in such cases, the Child Sexual Abuse Clinic of the Yale-New Haven Hospital. This group of impartial, experienced men and women whom the district attorney looked to for guidance as to whether to prosecute, spent months doing a meticulous investigation, interviewing everyone concerned, and checking every piece of evidence. Finally they wrote their conclusion which I quote here: “It is our expert opinion that Dylan was not sexually abused by Mr. Allen. Further, we believe that Dylan’s statements on videotape and her statements to us during our evaluation do not refer to actual events that occurred to her on August 4th, 1992... In developing our opinion we considered three hypotheses to explain Dylan’s statements. First, that Dylan’s statements were true and that Mr. Allen had sexually abused her; second, that Dylan’s statements were not true but were made up by an emotionally vulnerable child who was caught up in a disturbed family and who was responding to the stresses in the family; and third, that Dylan was coached or influenced by her mother, Ms. Farrow. While we can conclude that Dylan was not sexually abused, we can not be definite about whether the second formulation by itself or the third formulation by itself is true. We believe that it is more likely that a combination of these two formulations best explains Dylan’s allegations of sexual abuse.”


Neither Lithwick nor you address this. If the quote is accurate, should it be ignored?

Posted by: Shag from Brookline | Feb 9, 2014 11:59:35 AM

The comments to this entry are closed.