It’s been more than a month since Sarah Sullivan posted her extremely powerful account of sexual assault by a prominent figure in swing dancing. During that time I’ve been largely impressed by the response. In contrast to the quenelle debacle, it seemed that the issues of sexual assault and women’s rights were more globally acknowledged and supported. For once I got to see what I always hope to see and never do: the global swing dancing community is actually doing better than mainstream society. I love the community, but I am constantly disappointed to discover that there is just as much ignorance, selfishness, and hate represented in it as there is elsewhere in the world. Mostly the response to Sarah’s and other survivors’ accounts has given me a bit more hope. That said, there was a fair amount of inappropriate questioning, overvaluing the career of the accused with respect to the safety and sanity of his survivors, and victim blaming. There was one element I saw brought up again and again, and I’d like to address it. That element is the concept of presumption of innocence, frequently packaged as “innocent until proven guilty.”

The Concept

Presumption of innocence is an important concept in just about every legal system in the world. It is seen as a crucial element in a just society. There are a few reasons for its importance.

First, in criminal proceedings, the accuser is the government. Generally speaking, a government has both more resources and a stronger voice than any given individual. Presumption of innocence is meant to even the playing field, so that a government must work harder if it wants to convict someone; rather than simply confirming the guilt of the accused with perfunctory argument, it must supply significant, persuasive argument to overcome the presumption that it is wrong. Second, the government is the only entity that can legally deprive someone of their liberty (by imprisoning them) or their life (by executing them). This is an awesome power, and necessitates some profound checks. One of the signs of an unjust government is abuse of this power, jailing or executing people who express unpopular opinions. In order for a government to be just, it needs to have constraints on how it can use its power to jail or kill. The presumption of innocence is such a constraint. By acting as a hurdle in the conviction process, it ensures that the government must work harder and have a more solid legal foundation if it wants to kill someone or imprison them. Third, there is a powerful, pervasive bias that exists in the minds of jurors: the idea that there’s no smoke without fire. When you see someone dressed in an orange jumpsuit, possibly handcuffed, and escorted by guards, you are far more likely to believe whatever charges are being brought against them than you are to assume that they are innocent. They wouldn’t be here if they hadn’t done something. Jury instructions that include an admonition to presume innocence are meant to overcome this bias in order that the jurors can make a more fair assessment.

In Cases of Sexual Harassment/Assault and Rape

There are a few issues with presumption of innocence in cases of sexual harassment/assault and rape (I will use the term “sexual assault” to mean harassment, assault, and rape except when I’m referencing a statistic that makes a distinction) in general, which I would like to discuss. They mostly deal with the third aspect mentioned above, which is the idea of “no smoke without fire.” This bias exists to an extent in any legal proceeding, but in cases of sexual assault it comes up against several other biases, which diminish it to the point of non-existence. In cases of sexual assault, presumption is usually heavily weighted against the accuser rather than the accused, despite jury instructions to the contrary. This is evident from considerable under-reporting, lack of prosecution when reported, and low rates of conviction when tried. Some likely reasons for this difference in presumption are:

The idea that sexual assault is far less common than it really is.

The idea of a “type” of person who commits sexual assault.

The idea of “vengeful” women trying to “get back” at somebody by crying sexual assault.

The idea of women trying to gain attention or money by accusing a prominent or wealthy man of assault.

The idea that women will accuse someone of assault simply because they regret their decision to have sex.

These ideas persist despite mountains of data.

According to RAINN (Rape, Abuse, and Incest National Network), 1 out of every 6 American women has been the victim of an attempted or completed rape in her lifetime. “Rape” in this instance is defined as including forced vaginal, oral, or anal intercourse. Note that this doesn’t include many other forms of assault, so the number of American women who have experienced sexual assault is far, far higher than 1 in 6.

There is no type of person who commits sexual assault. It’s not a stranger in the bushes or in a dark alley. Approximately 2/3 of rapes are committed by someone known to the victim. 73% of sexual assaults are committed by someone who’s not a stranger. 28% of rapes are committed by an intimate (i.e. a partner). 7% are committed by a relative.

The last three points in the above section are just utter crap. Sexual assault is one of the most under-reported crimes. Out of every 100 rapes, only 32 get reported to the police, 7 lead to an arrest, 3 are referred to prosecutors, and 2 lead to a felony conviction. According to the FBI, only about 2% of sexual assault accusations are determined to be false.

The “she just wants attention” argument would maybe be an important viewpoint to consider if we didn’t live in a world where women who speak out against their assaulters are almost uniformly shat upon by the world in general and then have to watch the unfolding pity party thrown for the accused. Yes, men are sometimes raped too, and they also face terrible consequences if and when they decide to talk about it, but it happens less frequently and that’s not what happened to make us have this discussion in our community. In any case…

Problems with Presumption of Innocence in Situations like Ours

First of all, it’s important to realize that presumption of innocence isn’t so simple in a case like sexual assault, where the accused and the accuser are individual people and the discussion is being held within our community. You can’t presume that the accused is innocent without also presuming that the accuser is guilty of lying. So when some voice of reason online says “Wait a second, shouldn’t Steven be innocent until proven guilty,” they are also–NECESSARILY–saying, “Wait a second, shouldn’t we assume that Sarah and the numerous other women who have come forward are lying?” It’s natural to be shocked by what Sarah and the other women have revealed about Steven, especially if you know him and respect him. A lot of people did. But it’s really important to remember that people don’t cry rape just for the hell of it. If someone comes forward, it’s probably after a great deal of agonizing doubt and reflection, in part because they know exactly what they’ll face if they do. It’s also important to remember two other things:

The Lindy Hop Community isn’t a Government

That’s right. It seems weird that it needs to be said, but apparently some people need reminding. You don’t need to cry presumption of innocence because Steven doesn’t need to be protected against us killing him or jailing him. The worst that will happen to him (unless of course it DOES go to court, in which case different rules will likely apply) is that he will lose his standing in the community and have to find a different job and a different group of people. Yes, that’s terrible, but it’s not the same as losing freedom or life. And it’s no more than he could face if someone accused him of stealing from an event or backstabbing or being a dick or any of the other things that someone might do to get kicked out of a community. A few years ago rumors spread of an up-and-coming dancer/organizer screwing the Ninjammers by not paying them for teaching and performing at his event. I didn’t hear one person bring up the concept of innocent until proven guilty. He was just quietly excluded from the scene. The most disgusting part is that we hear accusations of that sort of thing all the time and rarely does anyone come out and say “Wait, wait, shouldn’t we assume that so-and-so is innocent until proven guilty?” Nope, it’s pretty much only in sexual assault cases.

The Internet isn’t a Court

Again, seems obvious, right? But seriously, remember that this isn’t a court. When someone speaks up and says that Steven Mitchell assaulted her, your image of Steven is probably a pleasant memory you have of him. Maybe something funny he said in class or a great dance you had with him. A sweet outfit he wore during an instructor jam. Watching him belt out a lively song while you did the thing you love most in the world. You’re not seeing him clad in an orange jumpsuit, shuffling into a courtroom in handcuffs and escorted by bailiffs shortly after some attorney just told you “Yo, we think this guy did some shit and your job is to decide whether he’s done the shit we think he did.” Your biases, especially if you are friends with him, are definitely weighted in his favor. He doesn’t need anyone to jump up and shout “BUT CAN’T WE PLEASE JUST THINK OF STEVEN!” because that’s what people are most likely to do anyway.

Ultimately, invoking the concept of presumption of innocence is not a call for justice, even though the person doing it might think so. It’s a silencing technique. It’s saying, “I don’t want this to be true, so I’m going to assume it’s not until you go through the incredible mental, emotional, and financial strain of bringing a case in court and then luck out enough to be one of the 2% whose case actually leads to a felony conviction. Put up or shut up.” Until we live in a world where survivors of sexual assault feel empowered to report their attackers, where police are likely to make arrests based on reports of sexual assault, where prosecutors are more likely to pursue cases of sexual assault, and where juries are more likely to convict the offenders, there is no place in a community discussion for cries of “innocent until proven guilty.”

Some links:

http://en.wikipedia.org/wiki/Presumption_of_innocence

http://geekfeminism.wikia.com/wiki/Innocent_until_proven_guilty

http://www.theguardian.com/commentisfree/2012/nov/09/ethics-of-outing-rapist

http://www.vice.com/en_ca/read/on-jian-ghomeshi-and-the-presumption-of-innocence-830

http://thenewinquiry.com/blogs/zunguzungu/woody-allens-good-name/

http://satifice.com/2014/09/22/innocent-until-proven-guilty-notes-for-the-peanut-gallery/

https://www.ncjrs.gov/pdffiles/172837.pdf

https://www.rainn.org/statistics

http://web.stanford.edu/group/maan/cgi-bin/?page_id=297