#MeToo's Presumption of Victimhood

            Burdens of proof matter in the criminal justice and the civil justice systems. In the criminal courts, the state must prove its allegations by the law’s highest standard: proof beyond a reasonable doubt. In the civil system, there is a lesser standard, what the law call’s preponderance of the evidence. No one walks into court, by virtue of merely making an allegation, and gets special status.

            Not even people accusing others of sexual assault.

            Hence, it makes no sense to call a person a victim merely because they’ve made an accusation. A person claiming rape is an accuser; they become a victim by proving their claim.

            That doesn’t satisfy some folks.

            Consider Zerlina Maxwell. She believes that “we should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.” She wrote these words for The Washington Post. I doubt it: a victim gets sympathy, a secondary gain; rapists are scorned.

            In Ms. Maxwell’s mind every man, woman and child who cries rape is a victim. I suspect that it is thinking like this that yields statistics about a “epidemics” of rape and “rape culture.”

            Ms. Maxwell should know better. She’s trained as a lawyer, after all. But she’ll defend her position by saying, as she did in her article for the Post, “This is not a legal argument about what standards we should use in the courts; it’s a moral one, about what should happen outside the legal system.”

            This is the sort of thinking that spawned the #MeToo movement.

            Ms. Maxwell is a lawyer. She was graduated from the Rutgers University law school. She now works as Director of Progressive Programming for Sirius XM, and was director of Progressive Media for the Hilary Clinton presidential campaign; she worked for Obama, too. Chartwell Speakers Bureau lists her a speaker. You can pay her to listen to her speak on such things as “Rape Culture and Victim-Blaming.”

            No, thanks.

            People are free to reject the criminal law’s presumption of innocence. And no one is required in their private affairs to require proof beyond a reasonable doubt. Neither are folks required to require any standard of proof at all.

            But I find it difficult to comprehend how someone can claim that it is moral to say that it is somehow less harmful to call someone a rapist than it is to “wrongfully disbelieve” an accuser.

            Not long ago, my office tried a campus sexual assault case involving two Yale students. The jury found my client not guilty of all charges. Interviews after trial report that jurors did not find the accuser credible; in other words, she wasn’t a victim.

            In the days following the verdict, we received hate mail from around the country and were excoriated in publications and social media throughout the United States. How dare we attack a victim; we are scum for defending a rapist! Not one of these outraged souls were at trial.

            They all, each and every one, indulged Ms. Maxwell’s presumption of victimhood.

            There is no mob quite so dangerous as a self-righteous mob.

            It is defamatory to call a person a rapist, if the claim is false. The law says our reputations matter. Should those quick to call a man a rapist be held to account?

            I’d like to see a few defamation claims brought against those who rally behind  unfounded claims of accusers. I’m wondering why more of those held to scorn by waves of #MeToo groupies crying foul don’t hold accountable those who bring these claims to the press. Yes, rape is a violent crime; ambiguous sex is not. Neither is boundaryless flirtation.

            Legal standards matter, even in civil discourse. A person making an accusation is entitled to respect, not belief. Belief should be a product of proof. It makes no sense to claim, as Ms. Maxwell does, that we should default to belief. How can we know whether we are, as Ms. Maxwell puts it, “wrongfully believing” someone if we can’t test the accusations?

            Mae West had it right: “Men are like linoleum floors. Lay 'em right and you can walk all over them for years.” My hunch is that a fair number of the surfeit of sexual assault claims now almost daily appearing in the press are false. I don’t know that, of course. But I think those raising the claims should be required to prove them.

            Crying rape doesn’t make you a victim; it makes you an accuser with the responsibility to prove your accusation. If you don’t want to assume that responsibility, then don’t raise a hue and cry. The possessors of the reputations you seek to  ruin are required to respect, too.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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