Incoherent, Unjust, Immoral, and Dangerous Implications of “Believing the Victim”

The recent spate of sexual assault claims, starting with Harvey Weinstein in 2017, has brought to the fore an issue that has been simmering under the surface for a while. In the immediate aftermath of the sexual assault claims, anyone standing up to defend the accused, to express any level of doubt about the claims, or even advocating for withholding judgment until the facts are known and the court has issued a ruling – has been crucified in the media and across internet. We are told that it is morally monstrous to fail to “believe the victim.”

In this article, I want to consider an inherent contradiction of the “believe the victim” position, and work through a few implications whose consequences seem to me to be something of an existential threat to society. This line of argument also includes, but is not limited to, the recent “#MeToo” movement, which built on the “believe the victim” line.

To start, the idea that one should “believe the victim” has several implications that are worth noting. To believe comes from the old English belyfan – meaning “to have faith/confidence in a person.”[1] Since the belief we are supposed to exhibit comes from interpersonal communication expressed as a claim, believing is the functional equivalent of the conditions for charitable reading: namely that the person has some truth, that they’re attempting to communicate it, and that they’re doing so in good faith. Thus, we should take claims of others seriously and not simply dismiss them out of hand, because the speaker is making a good faith effort to present the idea to us, and they seem to believe it true.

Second, the word “victim” has been used in the general modern sense of “person who is hurt, tortured, killed…oppressed by power or situation… taken advantage of” since the 17th century.[2] Perhaps the simplest way of thinking about the relevant type of “victim” in this context is something along the lines of, “a person whose basic, legally-protected rights of sexual autonomy have been abused.” Combining the two, we arrive at the more developed notion of the phrase “believe the victim” to mean something like “have faith and confidence in the claim regarding the abuse of a person’s basic, legally-protected rights of sexual autonomy.”

However, the term “victim” carries additional implications. Whether someone is a victim or not is an objective question, with legal standing, and with critical legal ramifications. The label is one that, legally speaking, can only be applied as a consequence of successfully demonstrating the abuse by proof. That is to say, the label is a matter of judgment made by appropriate authority, on the basis of demonstrable evidence. The point of authority is important, because there are cases where the supposed victim of violence is exposed as having inflicting it on themselves – and thus they’re the perpetrator, not the victim – despite the “obvious” signs of being victimized.[3] As long as there is the possibility of the “obvious” conclusion being wrong, which is what the noted cases and many more demonstrate, there is a need for a proper authority to determine the status of the labels. This is also why the police themselves are questioned at trials.

In the case of sexual assault of any kind, the label of “victim” necessitates the simultaneous labeling of someone else as the culprit (he who is guilty). In some cases, the culprit may not be known (e.g. an unresolved homicide), but the labeling of “victim” as such indicates that proof has been found of the existence of a culprit, whether they can be named or not. The whole legal point rests precisely on sufficient evidence as proof. Furthermore, the western legal system (and every decent legal system) has as its foundation the notion of the presumption of innocence. That is, claims themselves are not taken as verdict, but require proof on the part of the claimant – not the accused.

In this light, the idea of “believe the victim” runs into a problem: when someone presents a report of criminal activities of another, they are not a victim, they are a plaintiff (“The person who files a complaint in a civil lawsuit”)[4] – or, since it is the state that pursues criminal charges, they are the “prosecution.” The key, legally speaking, is that the “plaintiff” (civil charges) or the prosecution (criminal charges) must prove that the defendant is guilty (as per “Burden of Proof.”)[5] If we were to label the claimant as a “victim,” we would, in fact, be passing judgment on the veracity of the claim, and the guilt of the other party (as well as their existence – which the noted examples also throw into doubt). This is precisely what our legal system is supposed to prevent – hence the very notion of the presumption of innocence, and the right to a fair and impartial trial.

It can be argued that the phrase “believe the victim” is intended to convey a different idea. Let’s suppose, reading in the most charitable light, that the real meaning is something along the lines of, “the authorities should take claims of sexual assault seriously, and conduct a strenuous investigation – because of the atrocious nature of the crime.” We can also offer a second charitable reading as, “the society at large should take the claims of sexual assault seriously, and refrain from either passing judgment on, or vilifying, the plaintiff, because such a social reaction disincentivizes the reporting of heinous crimes.” Both of these charitable readings are, I believe, functional as legal and ethical standards. They are also in line with the key axioms of the legal system: namely, they take claims of criminal behavior seriously enough to warrant a meaningful investigation and allow for a fair and impartial trial.

However, this charitable reading of the phrase is not warranted in light of A) language used, and B) reality on the ground. The phrase, and the start of the problematic approach, comes from End Violence Against Women International (EVAWI) – a US-based NGO focused on ending violence against women. The language is designed to be emotionally evocative, and thus lend urgency and moral weight to the idea that, in failing to believe the victim, one is allied with the culprit – and thus guilty of enabling further criminal activity (i.e. one is “pro-rape”). Because the language uses legal terminology of “victims,” it is misleading at best. However, the language issue could be ignored if not for the reality on the ground.

The accusation of sexual assault is equivalent to an accusation of pedophilia; the act alone destroys the reputation of the accused, often costs them their job, and makes them a target for of mob-based attacks from any number of activists and activist groups. Simply put, if your babysitter was accused of pedophilia, you are unlikely to wait for the verdict to decide whether you feel comfortable leaving your child in their care.

That the accusation alone is enough has been demonstrated several times over in recent years.[6] We could go through the various cases of destruction of lives and livelihoods, of anonymous threats against the accused, of convictions based on little more than hearsay. However, the best indicator for me is the palpable fear of journalists, academics, and public figures in expressing any view other than absolute support for the plaintiff, in the form of passing a verdict on the defendant. Most importantly, the fear extends to expressing support for the axiomatic basis of our entire legal system: the presumption of innocence: i.e. the need for objective proof, before passing judgment.

The best example of this problem can be seen in the treatment of the story of Prof. Tariq Ramadan, a Swiss-born public intellectual, Professor of Contemporary Islamic Studies and Senior Research Fellow at St Antony’s College, University of Oxford. Soon after he was accused of sexual assault in 2017, Prof. Ramadan was arrested and placed into solitary confinement – where he has been refused family visitation and has developed severe health problems (necessitating two hospitalizations over the past 2 months). The problem, for the present purposes, stems from the fact that this treatment by the French authorities is contrary to the French law, which should allow the person accused of such charges to remain free until the judgment is rendered. This legal understanding has allowed several French politicians to walk about Paris while awaiting trial, because of their presumption of innocence. That the “evidence” against Prof. Ramadan is riddled with inconsistencies is beside the point. What matters, or what should matter until the trial determines the truth of the matter, is the illegal treatment of Prof. Ramadan – which appears to be motivated by religious prejudice.

However, the illegal treatment has received scant attention, because the accusation is sexual assault in the age of #MeToo. Even those who have covered the story begin by bending over backwards to indicate that they “believe the victim” and that the validity of the plaintiff claims is not in question. Sarah Marusek’s April 15 article To Speak or Not to Speak About Tariq Ramadan? is a perfect example of the problem. She begins her excellent article by considering the problem inherent in writing it: But sometimes what is before you is overshadowed by something else. Sometimes the distribution of power is so overwhelmingly fractured that it also splinters the tongue.[7]

It’s already problematic when judges express the desire that the legally determined culprit be sexually assaulted in prison.[8] Let’s assume that we can chalk that up to the idea that rapists deserve whatever harm they may suffer. But when it becomes a social and legal norm to inflict significant physical, psychological, and social harm on a defendant, purely on the basis of the type of plaintiff claim, the very notion of justice falls apart. This attitude is, literally, one of the Inquisition – where the torture of suspects is justified by the nature of the claim made against them, despite the absence of proof.

For all the problems such a position seems to engender, it does not stop there. If we were to take the idea inherent in the slogan seriously and apply it as the reality on the ground dictates, we necessarily end up in an infinite loop. The initial plaintiff is the “victim” to be believed – and their story accepted without question. However, the defendant is made into a “victim” of both legal and sexually-based assault by the very claim of the plaintiff. The sexually-based assault here is of a different nature: it is an assault on the defendant’s moral character viz. sexual violence – the labeling of a person as a sexual predator. The legal assault is a given in any claim of illegal behavior. If the initial defendant then files a counter-suit, he becomes the plaintiff, and the “believe the victim” slogan kicks in again – only this time in the opposite direction. Thus, we enter a paradox.

To simplify the idea, if anyone who makes the claim that they have been grievously wronged must be categorically believed (regardless of evidence), then the plaintiff and the defendant must both be believed, equally – which is impossible, because they have contradictory stories. The only way to resolve this paradox is to go back to the original starting position: presumption of innocence and suspension of judgment until sufficient proof is presented.

We could argue that the slogan is intended to apply solely to the “victims” of sexual assault. However, that position does not help resolve the incoherence. To begin with, the “victim” claim is itself a type of sexually-based assault – as noted above. But let’s assume that the physical nature of the initial sexual assault claim is so radically different that the two issues are incommensurate – even when the initial claim has not yet been demonstrated. Even if we grant that point, we have to ask: “what is supposed to be so uniquely different about physical sexual assault as to nullify the axiomatic basis of our legal system?” This is a critical question, because we do not take claims of any other sort of violence as capable of superseding the legal system, even when those claims are of existential threats, absolute human degradation, and nullification of the core aspects of human rights. People who escape kidnapping and torture are not included in the “believe the victim” slogan (see: continued defense of torture tactics). Neither are suspects in police custody who are tortured into confessions and spend decades in prison or on death row. Neither are the terror suspects whose detention, we now know, include sexual degradation, rectal feeding, waterboarding, etc. If every other claim of legal and moral harm requires proof before the claimant is believed and before they’re called a “victim,” what makes physical sexual assault any different? On what moral or legal grounds is it possible to demand that people who claim to have been kidnapped, sent to a CIA blacksite, and tortured for two years produce proof of the actions of a clandestine organization whose workings are top secret, but not require a shred of proof from those claiming sexual assault?

The result is an incoherent legal and moral position if we take the slogan to be limited to sexual assault claims alone, and a paradoxically incoherent position if it extends to all “victims.”

One may argue that the plaintiff and the defendant should not be equally believed, because the defendant has a vested interest in appearing innocent (incentivizing winning by any means, fair or foul), while the plaintiff has no reason to lie. This notion is incoherent. First, it assumes that it is physically impossible to lie about sexual assault. I say physically impossible, rather than irrational, because if the constraint on lying about sexual assault was rationality, we would be forced to protect the presumption of innocence, if only because some people are not rational, and because the mentally ill are not barred from making such claims. Therefore, the only explanation for categorically believing the plaintiff is if it is impossible for the plaintiff to lie.

Second, there are – sadly – scores of examples of false sexual assault claims. In fact, not only are these claims relatively common in what we might term “traditional” sexual assault, they are exceedingly common in family courts. When the custody of children comes into play, both sides are incentivized to lie about their spouse’s sexual mistreatment of the children.[9] In light of the very many false sexual assault claims, the idea that sexual assault plaintiffs should be believed out of hand – in terms of passing judgment in their favor – is incoherent.

Third, sexual assault plaintiffs are generally not penalized for making false claims. That is, a person who makes such a claim, and then later either loses the legal battle, or even withdraws the complaint – including confessing that they filed the complaint out of anger (although a “j/k” would have the same consequences) – are not prosecuted in any way. This mechanism incentivizes false claims, or at least disincentivizes not making false ones.

Finally, both sides are facing severe, lifelong harm. The plaintiff is supposed to have gone through a severe physical and psychological trauma – the kind that leaves indelible scars for life. The defendant is facing the absolute ruin of their life, imprisonment, social ostracization, inability to find work or housing upon release, etc. It is unclear why one side should be believed over another, simply on their word. The idea that one side has more to gain by lying is non-functional. The exact same case can be made for most any serious crime, yet we don’t trust the prosecution claiming murder over the defendant.

None of this is to say that, as a society, we should not take claims of sexual assault seriously. All claims should be thoroughly investigated, the findings submitted to the court, and verdict delivered by a fair and impartial process. However, the idea that we should “believe the victim” does the opposite of that. It vilifies the defendant as a culprit first, and asks for proof later (if ever); it exacts the kind of punishment reserved for legal sanction by appropriate authority through appeal to mob justice; it dismisses out of hand the claims of defendant innocence, and assaults anyone who would call into question the legal or moral validity of any of these steps. If the “believe the victim” idea was born out of the unjust treatment of the plaintiffs who came forward, it has not corrected the problem; it has simply inverted it. Today, it is the defendants who are treated unjustly, except that they do not have a choice in coming forward – they are dragged into the public arena by anyone willing to make claims. The fact that there is no punishment for false claims, means that the actual criminals get to act with impunity, while their victims are left without any legal or social recourse. Being found innocent by court, after the society has already cast you out, does not allow you to come back. Like redactions to any story, it’s only the initial “shocking” claims that make the headlines; the “oops, we go it wrong” story is printed on page 17 in font 3. This was the very thing the “believe the victim” position sought to undo. However, now that someone else is victimized by a system that acts in their favor, they seem rather content with the outcomes.

The preceding analysis has looked at the legal side of things – the problems with the slogan and the very real implications thereof. However, there is a different way of reading the idea behind the slogan – namely a moral one.

Let’s assume that, as may have historically been the case,[10] the problem with simply approaching the perpetrators of sexual assault legally may leave a lot to be desired. This is especially true in cases where the perpetrator enjoys a relatively high social position, where they may be wealthy, or possess other such qualities. As is the case in many other criminal acts, the social cream of the crop are effectively immune from serious prosecution. Case in point, when actors are caught with a great deal of drugs, they go to rehab… when it’s a random guy on the street, they go to jail. The actor gets a “comeback” story, the rest of us get the “felon” checkmark on job and housing applications.

If we assume that the legal system fails to deliver justice, we may be tempted to work around that system and get justice in the moral, non-legal sense. This can be rather attractive – after all, Batman is a vigilante who is known and loved the world over, Dexter had rather amazing audience numbers, and the entire 24 franchise is premised on the “good guy” working primarily outside the law. You can already hear your own theme music, and the tagline, “when the justice system is not enough, Susan picks up the slack!

Obviously, this approach, in the present case, is not about hunting down people in the dead of night, but about staying within the boundaries of law, in order to ensure that the moral standard of punishment is meted out. Sexual assault perpetrators have nowhere to hide, not when they’re publicly outed and shamed. The kind of harm done to the culprit is the exact kind of harm they may be able to otherwise escape – provided they hold a socially privileged position.

At first blush, this approach seems rather morally good. You’re working within the law, but picking up the slack and closing the loopholes that may be present. On the other hand, there is a severe problem with this approach, that seems to stem from our consumption of popular culture. The problem is an issue of epistemic uncertainty. To put it in somewhat simpler terms, unless you are the criminal or the victim, or were present for the event, you do not know the truth of the situation. That means that, for the majority of us, the only serious way we can pass judgment is through an intermediary system – namely the courts – and the decision they have reached.

Because of popular culture, we are used to seeing the good guys go after the bad guys (both categorically defined as such), and we get to root for the good guys (or bad, in case of Breaking Bad) because we’ve been given access to information that is otherwise inherently inaccessible to us. Directors use these methods to allow a build-up of tension, to get you to properly identify who’s who, but this information is not something we ever have – unless we’re the victim, criminal, or a third party present for the event.

Many of my students have problems grasping this issue when we first speak about lawyers, and the justice system. They have a sense that they simply “know” who the guilty party is, and clearly the lawyers for that side are evil and corrupt, and if the case is decided in favor of the bad guys it allows us to take some form of vigilante action. However, when pressed for how they know the innocent from guilty, it quickly becomes apparent that they’re projecting popular culture onto real life.

We may be tempted to argue that, since the victim knows the truth, all we need to do is – as the slogan tells us – “believe the victim.” However, that belief is the whole problem. We do not know, and cannot know until proof is presented, whether the claim is true or not. We could only know that the claim is true if we were the victim, the criminal, or had witnessed the event. As a result, we withhold judgment, until after the evidence and the verdict.

If viewed from the other side, the “simply knowing” without proof is revealed as the exact kind of problem the “believe the victim” position is intended to fights against. Namely, when the accusations of sexual assault are dismissed out of hand, because we “believe” the defendant, it is clear that we’re committing an injustice against the plaintiff. The only way to preserve some semblance of justice is to follow the legal axiom of innocent until proven guilty, and to refrain from passing judgment until the evidence is presented. This also means generally abiding by the court’s decision. We are allowed to appeal the decision, but that approach still precludes the idea of taking justice into your own hands.

Turning into a vigilante on moral grounds requires us to be in possession of some incontrovertible truth about the events in question. That is, it requires us to take on the role normally reserved for God, on account of the whole “omniscient” thing He’s supposed to have. This access to truth is an absolutely mandatory requirement, because the actions of moral vigilantes have very serious and very real consequences. Lives are ruined, families destroyed, jobs lost, and people are socially ostracized. If you’re thinking something like “well, that’s what they deserve, because of what they did!” you’re still not getting the point. If the destruction of a life is justified because of a crime, we need to justify that the damage we’re inflicting is aimed in the right direction. That is, we need proof. If you have proof, all you need to do is hand it over to the prosecutor, and let the justice system do its thing. If you don’t have proof, then you’re engaged in something rather akin to a lynching. It is nothing more than personal “feelings” on a topic one is factually ignorant about. If we’re willing to condemn someone from a position of ignorance, there can be no coherent moral justification for the actions. In fact, such vigilante actions become necessarily immoral, even if they happen to hit upon truth. This follows, because the “getting it right” was accidental – the intended action was to destroy the life of a person on the basis of ignorant feelings.

Part of the problem of the “believe the victim” approach is the failure to identify a coherent end goal. It is unclear what the movement would consider to be “victory conditions.” Without a clear end-point and goal, the demands for “justice” can never be met. The victory condition cannot be the absence of all sexual assault, because that goal is not within human capacity to achieve, any more than “eradication of all crime” is a coherent end goal. The act of assault is a function of free will. Thus, the only way to guarantee the end of sexual assault is to negate free will. We can hope for something approximating an absence of sexual assault, in the way we hope for the end of all criminal activity. That hope should be backed by meaningful and coherent action to educate, to disincentivize, and to criminalize the act socially deemed harmful. A simple “kill them all, let god sort them out” approach has been out of favor for several centuries, precisely because it lacks any form of justice, any form of legal structure, and is about as far from any form of morality as possible.

However, the “believe the victim” proponents have not defined their ideology in coherent terms – as the above analysis shows. It is, therefore, not surprising that they don’t seem to have a clearly defined goal to work towards, but instead use the issue (already emotionally charged) to work themselves and the society into moral hysterics, with no end in sight.

That there is no clearly defined goal is becoming more and more obvious. The same people who shouted to “believe the victim” when the accused was Harvey Weinstein or Roger Ailes, are backtracking when it’s Tom Brokaw that’s accused. The same people who argued that vouching for the accused’s character is supporting, enabling, and concealing the crimes, are now the ones doing the vouching. There’s no clearly defined goal, when the trend is escalating, and now the calls have started for equating sexual harassment and sexual assault. As Senator Kirsten Gillibrand argued, “I think when we start having to talk about the differences between sexual assault and sexual harassment and unwanted groping you are having the wrong conversation.”[11] Just to make sure the point is not lost on anyone, the idea is that groping and rape (objectively demonstrable offenses against bodily integrity) are equivalent to misperceiving a comment.[12] That’s a rather far cry from the initial idea that those who come forth with claims of rape should be believed enough to warrant a serious investigation into their claims.

What’s the solution – or rather, how do we make an actionable point out of this analysis?

First, we (as a society) have to recognize that the “believe the victim” ideology has resulted in a highly problematic, socially-undermining position, which threatens the very nature of our ethico-legal system. If the injustice of the past was the refusal to entertain the possibility of defendant’s guilt, today it has become the refusal to entertain the possibility of defendant’s innocence. The injustice is just as bad, it has only switched targets.

Second, we (as a society) have to resist the “believe the victim” ideological narratives, usually centered around identity politics. We do this by insisting on the proper public identification of plaintiffs and defendants (not “victims” and “criminals”), and outright rejecting the loaded narrative, letting the proper authorities conclude the legal deliberation and assign those labels. We do this by insisting on the pursuit of legal standards already enshrined in our Constitution – which protects both sides until the truth of the matter is determined by the courts. The propagators of the “believe the victim” narratives now include NGO’s, a great deal of social media, a growing group of social elites, and most problematically the majority of the mainstream media. It’s the media whose propagation of these narratives (even if only by reporting the hysterics playing out on social media) allows them to gain a significant foothold, and thus it is the media that must be held to account over the biased reporting. Whether that “holding to account” is to be done by lawsuit, boycott, or other means, is a matter of functionality of the particular cases.

Third, we (as a society) must fight back against those social elements that would seek to vilify the defendants ahead of trial, that would target and attack the use of free speech in favor of the defendant, that would make moral monsters of those who do not accept as truth the mere utterance of a claim.

Finally, it is crucial that the injustice and incoherence of the “believe the victim” position be demonstrated by the legal standards, by the demands for justice, and by comprehension of the moral questions in play. Legally, the “believe the victim” ideology seeks to circumvent law and skip straight to the lynching. In terms of justice, it seeks to strip away the mechanisms and protections of justice for the accused. In terms of morality, it seeks to simply lay waste to all who disagree with its premises, and is perfectly willing to adopt the “might makes right” position – so long as it can be mightier than its opponents.

It is imperative that we (as a society) realize the dangerously destructive potential of ideologies that seek to undermine the legal and moral bases that are the bedrock of our society. These same ideologies, though generally portrayed as liberal and/or left-wing, present with highly authoritarian bend, on issues such as freedom of speech – and seek to actively shut down any meaningful exploration of the events and basic journalistic search for truth. That said, this should not be construed as a call for vilifying those who come forward with accusations: all criminal complaints should be taken seriously, investigated, and pursued if the case has merit. However, the idea that we should “believe the victim” any more than we believe any plaintiff, until the evidence is presented, is the same kind of malicious proposition that has historically enabled everything from witch-hunts to the Inquisition.

 

[1] https://www.etymonline.com/word/believe

[2] https://www.etymonline.com/word/victim

[3] https://www.denverpost.com/2017/08/28/denver-area-arrest-neo-nazi-stabbing/ and

http://www.miamiherald.com/opinion/op-ed/article202449949.html and

https://jezebel.com/3-black-women-at-suny-albany-charged-with-assault-accu-1762605284 and

http://www.nydailynews.com/new-york/woman-lied-police-attacked-acid-article-1.3747571 etc.

[4] https://www.justice.gov/usao/justice-101/glossary#c

[5] http://www.uscourts.gov/glossary

[6] Jian Ghomeshi’s ordeal is particularly telling: https://en.wikipedia.org/wiki/Trial_of_Jian_Ghomeshi

[7] https://www.criticalmuslimstudies.co.uk/tariq-ramadan/

[8] https://www.vox.com/the-big-idea/2018/1/25/16932656/judge-aquilina-larry-nassar-line-between-judge-advocate-sentencing

[9] Divorce Corp. Documentary Film. 2014. Available on Netflix, Youtube.

[10] I say “may have” because the general problem of not following through on claims is that there is nothing to show for it. That is, we don’t have the data on issues where data wasn’t collected.

[11] https://www.nytimes.com/2017/12/06/nyregion/gillibrand-franken-sexual-misconduct.html
Emphasis mine

[12] Since sexual harassment includes the idea of offensive and unwelcome advancements, wrongly perceiving comments as offensive can be a basis for filing a sexual harassment suit. The crux of the issue is that the offender may not even be aware that they’ve done anything wrong.

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