Presumed Innocent, Not Accurate

As has been noted before, the presumption of innocence, both as a legal rule as well as a principle, has been under sustained  attack for a while. It’s now in the direct line of fire following the new Title IX regulations by those who somehow connect it to their contention that it silences victims. This, in itself, is unsurprising, both because the activists have had a tendency to resort to hyperbolic exclamations of disaster with no rational relation to any substantive facts, a fairly normal approach these days, and because they lack a firm grasp of what legal principles mean.

This isn’t a new phenomenon. It’s been a bone of contention for a very long time, Even people who should, one would hope, know better seem at best to be fair-weather friends to the presumption of innocence, picking and choosing where this “technical rule” deserves to be honored and rejecting it whenever one chooses to.

So it should come as no surprise that the attacks on the presumption of innocence have escalated, now that the sacred cow of the “campus rape epidemic,” based on the notion that rape is whatever anyone says it is, before, during or years afterward, is under discussion.

Shiwali Patel worked for the United States Department of Education as a lawyer, so it would be fair to expect her to be a credible source of legal information on the new regs.

I worked at the Department of Education until 2018. I developed policy and guidance  interpreting Title IX, the federal civil rights law that prohibits sex discrimination, including sexual harassment, in schools. It’s no surprise that the president, who has bragged about committing sexual harassment himself, has permeated many aspects of the government with politics that dismiss sexual violence, protect perpetrators and shield institutions from accountability.

Why, given her views of Trump’s awfulness, she continued to work under Secretary Betsy DeVos is unknown, as is why she chose to leave in 2018, two years later. But hey, that’s her choice, and she’s entitled to leave the DoE to work for the National Women’s Law Center. But that does not entitle her to deliberately make people stupider about law.

The rules require schools to ignore many reports of sexual harassment and create processes that would unfairly advantage students accused of rape, including requiring schools to start an investigation with the presumption that no sexual harassment occurred. That is, schools will effectively be required to presume that all students who report sexual harassment are lying.

While her first sentence is merely factually wrong, her last sentence is venal. This isn’t a legally difficult concept, that the presumption of innocence means that the allegations against the accused remain unproven. It has nothing whatsoever to do with whether the accuser is telling the truth or lying, or somewhere in between. It has nothing to do with the accuser at all. It is inconceivable that Patel would be this monumentally ignorant of the significance of the presumption of innocence and just making an unfathomably stupid mistake here.

This is intentional. This is the depth to which activists will go to undermine the possibility of affording an accused student minimal due process. Lawyers like Patel are deliberately trying to undermine the presumption of innocence to gain leverage with their useful idiots (for who else but an idiot would buy her nonsense?) against the new regs?

But it’s this same presumption of innocence that protects those who fall into their favored categories from the inquisition they would impose against males accused of sex offenses. When black, female, trans people are accused of crimes, are they not to be presumed innocent? Are their accusers to be presumed liars?

It’s one thing to distinguish the astounding ignorance of the moment to particular individuals, such as Joe Biden deserves due process and Tara Reade is a “survivor” who deserves to be blamed, but that doesn’t apply to anyone else. Small minds seem capable of wrapping themselves around individual carve-outs without so much cognitive dissonance that they begin to grasp their flagrant hypocrisy or have their heads explode.

But when a principle so necessary and fundamental to our jurisprudence, the presumption of innocence, is twisted, distorted and attacked for the sake of undermining the Title IX regs, the same attacks, the same ignorance, will follow and apply to the principle in all its applications.

As might be observed by a sharp eye, a theme has been developing of putatively credible people proclaiming outrageous legal nonsense for the purpose of promoting a personal agenda. Whether it’s to attack Trump or to support a favored group, the end justifies the means, and the means is undermining our foundational legal principles. It may work in the short term and produce the outcome the unduly passionate desperately seek at the moment.

In the long run, this will be the end of any principled legal system, reducing it to sophist nonsense to attack the evil of the moment and achieve whatever outcome its adherents demand. It’s outrageous that a former DoE lawyer would knowingly spew such idiocy, carefully designed to make people stupider. But then, it’s not as if Patel is the only lawyer attacking the presumption of innocence.