The third position is not assuming anything without evidence first.
And lets not pretend we're suddenly different people cause it is a different topic. Our selves do not exist in separate vacuums.
New Title IX guidelines formalized by Betsy DeVos.
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And lets not pretend we're suddenly different people cause it is a different topic. Our selves do not exist in separate vacuums.
I'm not carrying grievances between threads because the sticky says not to do so.
Okay. So how is "I'm not assuming you're guilty or innocent" different, functionally speaking, than "I'm assuming you're innocent". What should happen differently? What's the difference between an "innocent" person and a "I'm not assuming you're innocent or guilty" person? Does it make it okay to take away a person's rights if you're not assuming something about them, or what?
I guess you think that those statistics hurt my point, but I think it strengthens it. Why should how much you spend on a lawyer be so critical to success in a criminal trial? In a Just legal system, money plays no part in the outcome, only facts, fairness and law.
The US legal system makes it a point to emphasize that bias is bad, despite the actual way it works encouraging bias. My experience with Jury Duty summons emphasized that to me, as often and repeatedly we are told to 'not be bias' meanwhile the whole system of picking jurors is a battle of biases that lawyers are hoping to win to favor their side.
To be clear, I am saying starting a court case without bias of guilt is what we should do. Obviously by the end, we should determine who is guilty, if anyone is, as well as who is innocent, if anyone is.
Because there is a difference between 'He is probably good, but maybe not' to 'I have no idea if he is good or bad'. People tend to be biased toward their initial opinion and often are inclined to prove they were right rather than discover what right is.
Okay.
Looking it up, the UN has declared the presumption of innocence to be a human right under article 11. You're for taking away human rights?
I just want you to be clear here where you stand.
USA
Honestly, both the old policy and the new policy are both utter garbage and we still have no protection for victims in the US, like at all. There is nothing that protects victims from being harassed by perpetrator's supporters. Whether it is the attacker, their friends or family, they are able to make the victim's lives a living hell both online and wherever they go in their community, at work, school, home or in public. The stalking and harassment laws in the US are extremely lax at every level. The current atmosphere allows for attackers to murder their victims while out on bail and has the police telling people that shooting and killing their attacker as being their only way they will ever be safe. We need changes on all levels to even be able to put a dent in this. Often rape and assault victims are forced to move and change every aspect of their lives entirely to try and rebuild their lives after they press charges against an attacker, the way the schools handle this only makes it worse.
In the case of students getting a restraining order against another student, the restraining order MUST be followed by the school rather than expecting the victim to be the one who makes changes, and many schools have already not been complying with court ordered restraining orders as it is and often even ignore their own no contact polices they have in place putting the burden further on the victim rather than the perpetrator.
I have not read all of this yet, but what I have isn't doing anything to resolve these existing issues or protect victims from further harm, which is the more pressing issue right now considering the sheer numbers of victims vs the numbers of those falsely accused. I am not saying that there are not people falsely accused, it is matter of weighing which is the most pressing issue right now. For example, in the general criminal justice system, are they more concerned about prosecuting murderers to prevent more killings than the fact that sometimes they falsely convict someone who was innocent? They do not stop prosecuting people for murders simply because sometimes they get the wrong person, and no one would ever suggest they stop prosecuting for murder over that. Instead they just allow them means to "appeal" the decision later.
The problem with sexual assault is that the vast majority of actual rapes have little of no evidence that it was a rape at all. They just have the rapist telling them it was consensual and the victim telling them it was not. Most people are alone when they are raped, they do not have witnesses. Even when women report and document bruises, scratches and other injuries at a hospital, the rapist and their supporters often just dismiss them as normal injuries that would occur during consensual sex. How do you prove that when you were alone with an attacker, you told them no or you told them to stop when they are telling everyone you wanted it? There is no way to prove this, and thus why so many actual rapists take advantage of this knowing they have the advantage at all levels and you are helpless to do anything to stop them. They already know they will get away with it, that is also why we have a good number of serial rapists, who keep doing it because they know they can and there is nothing anyone can do about it. What can be done to stop it when this is the "standard" that has to be changed?
That is why people like Bill Cosby, and Harvey Weinstein can get away with raping so many people before anything is ever done, because it takes ALL the victims speaking up before even ONE rape can be prosecuted effectively. The individuals being raped or attacked on their own have no recourse for help at all in our current system. They cannot even make the harassment afterwards stop. Our current system is designed to protect and enable the attackers, not those they inflict harm upon. The only way for the victims to get away is to have their lives impacted further and move away, and even then, we have had cases where the attackers still followed them although the victims did everything they could to flee to make it stop. Hell, at the Women's and Children's shelter here, we have had perpetrators go as far as to paying other women to come in to the facility and try to convince their victims to go outside the fence so the perpetrators could grab them. We have had perpetrators try to break into the facility to kidnap the women or children, and gunshots fired while children were playing on the playground this is why the facility has to have the sheriff department posting guards there are all hours and checking who is going in and out due to the extreme lengths attackers go to to access their victims even after they try to get help or flee. Sadly, we cannot even keep the women in a shelter or safe houses forever, and after the women try to rebuild their lives elsewhere, due to how easy it is to find them online these days, they still wind up being found by those trying to harm them after. Something needs to happen here to make this better, because right now, there isn't really anything addressing it adequately. Victims are not even safe once their perpetrator is in jail due to "hits" that have been carried out while their attacker is still behind bars due to little being done by law enforcement to address rehabilitation or corruption in prisons.
In the case of students getting a restraining order against another student, the restraining order MUST be followed by the school rather than expecting the victim to be the one who makes changes, and many schools have already not been complying with court ordered restraining orders as it is and often even ignore their own no contact polices they have in place putting the burden further on the victim rather than the perpetrator.
I have not read all of this yet, but what I have isn't doing anything to resolve these existing issues or protect victims from further harm, which is the more pressing issue right now considering the sheer numbers of victims vs the numbers of those falsely accused. I am not saying that there are not people falsely accused, it is matter of weighing which is the most pressing issue right now. For example, in the general criminal justice system, are they more concerned about prosecuting murderers to prevent more killings than the fact that sometimes they falsely convict someone who was innocent? They do not stop prosecuting people for murders simply because sometimes they get the wrong person, and no one would ever suggest they stop prosecuting for murder over that. Instead they just allow them means to "appeal" the decision later.
The problem with sexual assault is that the vast majority of actual rapes have little of no evidence that it was a rape at all. They just have the rapist telling them it was consensual and the victim telling them it was not. Most people are alone when they are raped, they do not have witnesses. Even when women report and document bruises, scratches and other injuries at a hospital, the rapist and their supporters often just dismiss them as normal injuries that would occur during consensual sex. How do you prove that when you were alone with an attacker, you told them no or you told them to stop when they are telling everyone you wanted it? There is no way to prove this, and thus why so many actual rapists take advantage of this knowing they have the advantage at all levels and you are helpless to do anything to stop them. They already know they will get away with it, that is also why we have a good number of serial rapists, who keep doing it because they know they can and there is nothing anyone can do about it. What can be done to stop it when this is the "standard" that has to be changed?
That is why people like Bill Cosby, and Harvey Weinstein can get away with raping so many people before anything is ever done, because it takes ALL the victims speaking up before even ONE rape can be prosecuted effectively. The individuals being raped or attacked on their own have no recourse for help at all in our current system. They cannot even make the harassment afterwards stop. Our current system is designed to protect and enable the attackers, not those they inflict harm upon. The only way for the victims to get away is to have their lives impacted further and move away, and even then, we have had cases where the attackers still followed them although the victims did everything they could to flee to make it stop. Hell, at the Women's and Children's shelter here, we have had perpetrators go as far as to paying other women to come in to the facility and try to convince their victims to go outside the fence so the perpetrators could grab them. We have had perpetrators try to break into the facility to kidnap the women or children, and gunshots fired while children were playing on the playground this is why the facility has to have the sheriff department posting guards there are all hours and checking who is going in and out due to the extreme lengths attackers go to to access their victims even after they try to get help or flee. Sadly, we cannot even keep the women in a shelter or safe houses forever, and after the women try to rebuild their lives elsewhere, due to how easy it is to find them online these days, they still wind up being found by those trying to harm them after. Something needs to happen here to make this better, because right now, there isn't really anything addressing it adequately. Victims are not even safe once their perpetrator is in jail due to "hits" that have been carried out while their attacker is still behind bars due to little being done by law enforcement to address rehabilitation or corruption in prisons.
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You are clearly using a strawman now to defame me.
I am against letting rapists have the right to rape people. I guess I am against human rights for that too.
I am for fair rights, and I think our current legal system is extremely unfair.
If I'm reading this correctly, higher education officials will have greater discretion on whether or not to start a formal process or not. This seems a good thing to me. They violate the title if they are "indifferent" to the charges. But in the training I've received annually, the rule had been that you could be that officer. You could be talking to someone troubled by an incident and just wants to vent and remain anonymous. You'd have these multiple choice answers and the one you were NOT supposed to pick was, "sorry, but you started this and now it's time to make it official whether you want to do so or not." The one you were to pick was more diplomatic but the results really are the same. Those creating the training know this inflexibility could be harmful to the person making the complaint.
Schools are also settling lawsuits brought by males claiming to have been wrongly accused. The wrongly accused need fairness and schools need better leeway, guidance and ways to do their jobs while protecting their institutions and those using the institutions.
Schools are also settling lawsuits brought by males claiming to have been wrongly accused. The wrongly accused need fairness and schools need better leeway, guidance and ways to do their jobs while protecting their institutions and those using the institutions.
That greater discretion in the past is what lead to Larry Nassar being able to sexually assault more girls at Michigan State before finally having anything done to stop him.
We had this for a long time already, more often than not, the school decided they didn't want to draw attention to the issue and would turn a blind eye instead pretending nothing was wrong allowing for more victims to pile up in the process. People do not seem to care until it happens to their kid.
What about the lawsuits from all the girls who are sexually abused and the schools ignored it happening? We have a long history of this being a serious problem. When you weigh the sheer numbers of assault victims vs the number of false reports, due to universities inaction in the past, it does not make sense to promote more inaction.
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The language barring the schools from reacting with "indifference" is violated if the institution acts as you describe. When there's something one of my movements wants enforced under existing laws and the response from the powers that be say, "I know! We need a new law!" I see that as dodging their duty.
I think it's probably the only thing DeVos has done in her entire term that I can, at least in broad strokes, generally support.
It's like Trump signing the FIRST STEP Act - I might disagree with the vast majority of what he's done, but I have to give him credit for that one tiny thing. FIRST STEP just needs a follow up, a second step as it were.
I think the process used for Title IX sexual harassment and sexual assault allegations, especially under the Obama-era guidelines were explicitly unfair, and operated in a fundamentally unjust and fundamentally sexist manner. Not only were procedures and standards designed to make it as difficult to defend oneself as possible, but there were even cases where a male student made a claim, a female student responded by making a counter claim, and the male student's claim was dropped as retaliatory. Think about that, imagine you accuse me of something, in response I accuse you of doing the same thing to me, and somehow your accusation was considered a retaliation against me.
Some of the things being done by colleges acting under Obama-era Title IX guidelines (and fitting neatly within those guidelines) were so fundamentally broken and unfair that accused students sued over a lack of due process at several colleges and won.
I think due process is important. I think a lot of the things colleges were pulling under the Obama-era guidance were fundamentally unfair and many of those specific things are prevented by the DeVos rules.
Think you could point to what in these guidelines you find offensive? Is it the part where you can't punish the accused until found responsible? The part where the accused gets to see the evidence brought against them with enough time to build a defense for the hearing? Is it the part where the accused is allowed representation by an advisor or even a lawyer? Is it the part where all parties can have their testimony questioned? Is it that colleges can choose to require "clear and convincing" evidence (a lower standard than beyond a reasonable doubt, but higher than "preponderance") rather than it being considered sex discrimination to have a higher standard than preponderance (which means basically slightly more likely than not)?
What issues, if any do you have with the new guidelines, and I beg you to be specific - you have a bad habit of responding to things with single sentence moral statements that avoid any nuance and don't actually answer any questions.
There is in certain jurisdictions also a declaration of factual innocence. It's extraordinarily rare even in the places where it actually exists (as in so rare that a lot of lawyers go their entire career without seeing it happen even once) and is essentially "found innocent beyond a reasonable doubt." One of the few cases where I've heard of it actually being issued was a sexual assault case, where the accused had a very, very thorough alibi and even then the state argued it shouldn't be granted because the claim against him was only very very improbable, not totally impossible. He won that case though, apparently the judge didn't think that any alternative possibilities they could come up with amounted to a reasonable doubt in his innocence.
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There are numerous proposals on ways to make the Criminal Justice system less reliant on the notion that money increases your odds of acquittal regardless of factual guilt. Scrapping the presumption of innocence is not one of them.
I'll also note that you didn't respond to any of my other points.
Starting without a bias of guilt requires a presumption of innocence. As I explained before, there is no possible way to form a system wherein there are no presumptions made. Either it will be for the defendant or against them. One side will have the burden of proof, meaning that proving the case is on them, not on the opposing party.
Also, courts are in a poor position to declare someone to be factually innocent. They can only really conclude, based on the evidence presented, if the prosecution proved beyond a reasonable doubt that the defendant was guilty of the crime in question.
You've literally said that the right to a presumption of innocence should be replaced with something else. In your case, you've said it should be replaced with no presumptions, which as I've explained to you, is simply not possible.
Also, as the old saying goes: "When it comes to defamation, truth is an absolute defense."
And your proposal, if implemented, would make it less fair.
There's a reason your idea has next to zero traction in the legal field (in fact, you're the first person I've ever see propose anything like this, and I've seen a lot of proposals).
I think due process is important too, which is why we should use it more often. The solution to sex assault and rape accusations is thorough investigations that seek the truth of the matter and not restricted by sexist bias.
I think too many people care more about protecting people from being accused of rape than they do about preventing people from raping and getting away with it. Why do we have to have just one? Why can't we work towards a system that punishes wrong doing and protects the innocent, period.?
The system is far more unfair to victims of sexual assault and rape than it is to people accused of it. And being raped is worse than being accused of rape.
Oh, and that Betsy and Trump used these new guidelines to reduce trans people's protections is also a problem.
Trump administration rescinds Obama-era protections for transgender students
US withdrew guidance stating federal law requires transgender students to have unfettered access to bathrooms and locker rooms matching their gender identity
www.theguardian.com
These guidelines were meant to make it harder for victims of rape to get justice, and easier for trans people to be abused.
It is possible to not make presumptions. Plenty of things I have no opinion on whatsoever because I know literally nothing about it to have even a starting one. Sure, sometimes I go to see a movie and think 'I will probably like it', and some where I think 'I doubt I will like it, but lets give it a shot'. But then I have also gone into a movie where I had no idea, at all. Not presuming things is possible.
Uh, evidence is supposed to determine if someone is factually innocent. Short of something out of a wacky movie, plenty of evidence can prove that someone is factually innocent or guilty. I know sometimes there is a crazy action movie with edited tapes and people wearing synthetic masks ala Mission Impossible, but sometimes, ya know, the video really is just a racist cop murdering an innocent black guy.
Really most of your rebuttal has been just a 'Nuh uh'.
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It's possible for many things, but not the legal field, which is based around proof and the burdens behind it. For example, in civil court, if I make a claim about a fact or a matter of law, it must be proved to a certain standard of evidence (a preponderance of the evidence, or simply "more likely than not"). If we have a tie, the tie goes to the other party. The presumption states that if the moving party cannot meet their burden of proof, the non-moving party wins. The alternative presumption is also possible (but a bad idea in my opinion). However, you can't have a system with no way to break a tie. And that rule inherently requires a presumption. You can't say "Party A asserts fact X, and have proven it to be 50% certain. We will therefore proceed with the assumption that fact X is both true and false."
And again, I must stress: The right to be presumed innocent until proven guilty is a human right. A pretty basic one, at that. Even in systems where the judge takes an active role in finding witnesses and questioning them (such as France), the defendant is still entitled to a presumption of innocence. Numerous international treaties confirm this basic fact.
Based on the above, do you wish to keep defending your statement of "The legal system should operate on the goal of justice and truth. Both Innocent until Proven Guilty and Guilty until Proven Innocent are faulty and ultimately bias [sic] things.
There is a third option. 'We don't know, but will work to find out'. Ie making no assumptions at all. "
Or do you perhaps wish to walk it back or admit that it's probably not a good idea to abandon a fundamental principle of human rights?
That's not how criminal law in the United States works. The prosecution attempts to prove to the court, beyond a reasonable doubt, that the defendant committed the crime. Crime statues, as they are written in the United States, have elements, which basically mean that the defendant did a list of things, and that this combined creates a crime. Let me give you an example, because I spent a lot of time on this, and I think it's a good example of the complexities of the criminal justice system: Burglary, under the common law definition. (The definition is changed in most states. Consult with a lawyer in your jurisdiction if you have any questions)
At common law, burglary is "the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein." Therefore, to be guilty of burglary, you must:
A: Be committing a trespassory action (without the consent of the homeowner)
B: Break, which is to say, use some amount of physical force to create an entry to the property
C: Actually enter the property
D: Have this property be a dwelling
E: At nighttime
F: With the intent to commit a felony (any felony, at common law) therein
Now let's suppose we live in a state with just the common law. Steve is a criminal and breaks into a house by smashing a window, correctly believing that the owners are away. He steals some jewelry and runs for it. Steve is then arrested for burglary a few days later. At trial, the prosecution proves points A-D beyond a reasonable doubt. However, the prosecution fails to establish elements E and F beyond a reasonable doubt. Say that there's some doubt on whether he had the intent to commit a felony when he broke in, or that it was actually nighttime. The jury has several options here. They can acquit Steve because the prosecutor failed to prove the elements. This would result in a not guilty verdict. But that doesn't mean Steve is factually innocent. There's also the issue of "lesser included offenses" which juries can look at and say "He didn't do the first crime, but he did do the second." Suppose that Crime 1 has elements A B C and D, and Crime 2 has elements A B C. The prosecution proves elements A B and C, but not D. The jury must acquit defendant of Crime 1 but may convict him of Crime 2.
This example is given to show how courts don't deal with innocence, only whether or not the elements are proven. And it's possible for a person to be not guilty of one crime and guilty of another. Steve may not be guilty of common law burgalary, but he is guilty of criminal mischief (breaking a window, element B), grand larceny (theft of the jewelry), and criminal trespass (elements A and C).
That handles the majority of criminal law cases you will ever see. Do you see from this example I've given, based on a case I've witnessed (the exact facts of the crime and the charges were changed to protect the guilty) why courts don't really bother with declaring people innocent? They can only say "Based on the information presented to the court by both parties, we do not have sufficient evidence to conclude guilt for the defendant."
How do you think it's unfair? The most frequent complaint I see (and I'm not saying that this is specifically your complaint) is the degree to which the defense attorney is allowed to question the alleged victim.
Now, if you're talking about people who bring forward rape accusations being treated poorly by police and prosecutors, by them failing to test kits or follow up on leads, I would agree with you that this is bad.
I'm trying, as politely as possible, to explain to you (and anyone reading) that your proposal to get rid of the presumption of innocence and replace it with a system with "no presumptions" reads like a example of the Dunning–Kruger effect as applied to the legal field.
In the debate about presumption of innocence I think it better to formulate a hypothetical
Person A is accused of a crime by person B, the crime was directly aimed at person B and would have required Person A to have been present.
Investigators find that Person A has no alibi, but finds no physical evidence, there is however a video of a masked person who might be Person A, they share the same skin colour and is of similar height.
Furthermore Person A does not confess when interrogated and insists that they were elsewhere during the crime, however there is no way to corroborate the statement.
What should we do in this case?
There is no evidence that A committed the crime, except for the insistence of B.
Following the process of innocent until proven guilty A must be released and found not guilty.
Following the process of guilty until proven innocent A must be punished and found guilty.
Person A is accused of a crime by person B, the crime was directly aimed at person B and would have required Person A to have been present.
Investigators find that Person A has no alibi, but finds no physical evidence, there is however a video of a masked person who might be Person A, they share the same skin colour and is of similar height.
Furthermore Person A does not confess when interrogated and insists that they were elsewhere during the crime, however there is no way to corroborate the statement.
What should we do in this case?
There is no evidence that A committed the crime, except for the insistence of B.
Following the process of innocent until proven guilty A must be released and found not guilty.
Following the process of guilty until proven innocent A must be punished and found guilty.
Eye witness testimony is evidence that has been used in a court of law since the beginning of civilization and is still considered evidence. The victim is still considered a witness to the crime. When someone steals your wallet and you see them run off with it in their hand, you file a police report. If you know who that person was, and can identify them, the police will pick them up and charge them even if the guy who stole your wallet ditched the wallet so there is no physical evidence. The witness testimony from the person whose wallet was stolen will be used in court to charge and convict the person who stole the wallet.
They would not just release the guy who stole the wallet simply because he ditched the wallet and only have the word of the person who reported it. They would go through with the charges as the victim is the witness who will testify against them in court. If they just dismissed all cases where they only had witness testimony, most criminals would never be charged with anything because they are usually smart enough to get rid of the evidence.
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I don't think I've ever heard of a case decided solely on the eyewitness testimony of the victim along with the suspect having no alibi, but I might be wrong
Regardless I would assert that we must have an established procedure for what happens when there is no evidence, only a claim that someone is guilty. Investigations will not always yield actionable information, there will not always be evidence that ensures certainty, and when we have no certainty we need to consider whether it is better to let a thousand criminals go rather than punishing one innocent, or punishing an thousand innocents to ensure that we get the one criminal.
According to this, approximately 77,000 cases a year in the US rely solely on eye witness testimony.
Of course we would not want to disregard eye witness testimony otherwise, criminals would be able to run rampant as long as they know to destroy the evidence. It isn't like we have CCTV every where in the US. I think it is far more likely you would punish one innocent to catch 1000 criminals.
At a glance I can't seem to find any indication of the statistic when it comes to crimes with a single eye witness, so that probably cuts the cases down a bit, at least I'd assume that some of those 77,000 would involve multiple witnesses.
Also, this
"But the empirical facts about the validity of EW testimony, especially EW identification, are very disturbing. Aside from those few well-publicized cases of mistaken identity offering clear evidence that sometimes real witnesses make grave errors and innocentpeople are either imprisoned or executed (Wall, 1965), the outcomes of nearly all controlled psychological investigations employing realistic simulated crimes or staged events strongly suggest that identification errors in the real world may be relatively frequent , rather than rare . "
Is disconcerting.
Lastly, the argument wasn't to the effect of the current policy, but as to the judicial ideal. Are we truly willing to sacrifice the innocents to get the guilty? If so, what is the ratio we're willing to trade on?