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An Explainer: When 'Innocent Until Proven Guilty' Does and Does Not Apply

By Dustin Rowles | Think Pieces | November 13, 2017 |

By Dustin Rowles | Think Pieces | November 13, 2017 |

As someone who went to law school, but more importantly, as someone who has watched all of Law & Order and pretty much every David E. Kelley series, due process is important to me. It’s a big deal. I mean, it’s a Constitutional right enshrined in both the 5th and 14th Amendments. Everyone should be afforded due process rights … where it’s applicable.

But that’s the thing about due process. It doesn’t apply to everything. It only applies to state actions that result in the loss of life, liberty, or property. There’s often some question about what constitutes “property” — did you know that welfare benefits count as property? (Goldberg v. Kelly, bitches!) — but state actions are pretty cut and dried.

And what’s been going on the last few months has nothing to do with state actions. And the positions that these men have been losing do not constitute “property.” Due process does not apply. Therefore, no presumption of innocence is necessary. We can believe the women and presume guilt. That’s our goddamn right as free-thinking Americans!

Moreover, these are also not criminal cases, although in many instances, such as with Harvey Weinstein, they may blossom into that. Therefore, “innocent until proven guilty” does not apply, either. Yes, in a court of law, the burden is on the prosecution to prove guilt. It’s a very high burden, as it should be in both capital cases and in sexual harassment cases. For better or worse, we are a country that would (theoretically) rather set 9 guilty people free than convict one innocent person, and if we believe that in the case of a death-row inmate, we have to believe it in cases of sexual assault, too. It’s often an unfair system, but so far, it’s the best system we’ve been able to devise (and the problems inherent to that system are less about the system itself and more about the people implementing and executing it).

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But what we have been dealing with has not been courts of law. It’s been the court of public opinion, and “innocent until proven guilty” is not applicable there. Neither is it applicable in the employment context (with some exceptions, mostly dealing with state and federal employees who have been contractually afforded “property rights” in their positions, such as a tenured professor at a state university). Importantly, it’s also not applicable to the political arena.

Roy Moore will almost certainly never be convicted of a crime. Not only does a statute of limitation apply, but even if it didn’t, the prosecutorial burden is too high. It’s a he said/she said situation, and without additional evidence, that’s not enough to overcome the burden.

But in the court of public opinion, we can choose to believe the women. We should believe the women. It should be the default. Likewise, an employer doesn’t need to satisfy a prosecutorial burden before firing someone for sexual harassment or assault. That’s not to say that an employer should not weigh the evidence before arriving at a decision to fire someone. You can do some independent investigation. You can look to additional evidence. You can weigh the credibility of the accuser and the accused. But as we have seen time and time and time again, most cases of assault or harassment or just general creepiness are not isolated incidences. They fit a pattern. If one woman levels an allegation, there’s probably five or six or dozens more.

Think about the way your brain processed it when it came to George Takei. Your brain probably fought with itself momentarily between its desire to believe the victim and its desire to assume the best of George Takei. I think that’s OK. But the details of the incident probably swung the pendulum against Takei. The evidence that surfaced in subsequent days that suggested the incident could have been part of a larger pattern probably sealed Takei’s fate in the court of public opinion. He has been convicted in the minds of many, but he will not lose any property rights. He will not go to jail. But he might get shunned by a few people at a dinner party and lose an endorsement deal with Little Caesar’s pizza or something.

I think that’s appropriate. There has to be something in between getting off completely unscathed and being convicted of a crime and sentenced to prison. The Court of Public Opinion is that necessary middle ground that charges and convicts people of crimes where there is insufficient evidence to meet the beyond a reasonable doubt standard (or in the case of a civil trial, “the preponderance of evidence.”)

And beyond Sean Hannity, the hicks in Alabama and the party-over-country Republicans, that’s kind of what’s been refreshing about the Roy Moore situation. Most people with common sense choose to believe the women. They have looked at the evidence; they have weighed the credibility of each side; and they have come to the conclusion that Roy Moore is guilty as hell, though no court will ever convict him.

In fact, this statement from Mitch McConnell today is dizzying. The evidence against Roy Moore is so compelling that even Mitch McConnell uttered a statement I never thought anyone would ever hear from him:

“I believe the women.”

It’s OK to watch that multiple times. I didn’t believe it at first, either.

Anyway, let’s bring this back around to due process. In his statement denying the growing number of accusations against him, Jeremy Piven wrote, “We seem to be entering dark times — allegations are being printed as facts and lives are being put in jeopardy without a hearing, due process, or evidence.”

Again, Mr. Piven: You are not being tried in a criminal court (at least not yet). Due process is not required. But there has been plenty of evidence in the form of your denial and in the form of accounts of sexual harassment by several different women that have been verified by others and which have been published in respectable media outlets. The only “hearing” necessary is the debate we have in our own minds: Do we believe Jeremy Piven, who has everything to gain by denying the accusations? Or do we believe the multiple, multiple women who gain absolutely nothing by making those accusations?

It’s a pretty easy conclusion for most of us to arrive at. It’s the same conclusion that most companies will arrive at when deciding whether or not to hire Piven for their next project. Hell, a lot of us came to that conclusion from looking at Jeremy Piven’s face, and you know what? In the Court of Public Opinion, looking like a douche is totally valid evidence. Hell, it’s EXHIBIT A for most of us.

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Dustin is the founder and co-owner of Pajiba. You may email him here, follow him on Twitter, or listen to his weekly TV podcast, Podjiba.