Sunday, May 22, 2016

Presumption of Innocence

The Universal Declaration of Human Rights has it that "everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." This is a kind of legal protection against criminal conviction—you cannot be declared by the state to be guilty of a crime, or punished for it, unless your guilt has been proven.

The presumption of innocence is rightly considered a pillar of civilised society. But people have a tendency to over-apply it in irrelevant cases. The presumption of your innocence means that the state can't punish you for a crime unless it proves that you committed it. That's it. It has nothing to do with how one individual should treat or think about another, or whether an organisation should develop or continue a relationship with an accused individual. The presumption of innocence doesn't protect you from being unfriended on facebook, or shunned at conferences, or widely thought by other people to be a criminal. It just protects from being criminally convicted.

The weird world of academic philosophy this week is digesting an article that includes serious allegations of sexual harassment by Yale professor Thomas Pogge against philosophy students. While most of the people whose reactions I'm reading are expressing disgust at Pogge's behaviour and gratitude for Fernanda Lopez Aguilar, the woman who has come forward with the story, there are some (including Pogge himself, as well as some of the People who Leave Comments on Blogs) who caution the broader world from jumping to conclusions, on grounds related to the presumption of innocence. Pogge's statement discusses "trial by internet"—but since "the internet" is not contemplating the use of state power against his liberty, whatever metaphorical sense in which he is undergoing a "trial" is not one where he enjoys the presumption of innocence.

The admonition not to pass judgement about the allegations is simply the admonition to ignore them. "Don't believe anything unless it's been proven in a court of law." But this is just a ludicrous epistemic standard. Do you care whether powerful men in academic philosophy are using their stature to coerce students into compromising sexual situations? Then you should be interested in credible testimony to the effect that this one has been. Don't be tempted by the fallacious inference from it hasn't been proven in court to you have no way to tell whether it's true. (This, incidentally, is also why it makes sense for universities to have sexual assault policies.)

Moreover, it's not in general "jumping to conclusions" to accept someone's word. We learn from other people about what happened to them all the time. Talk of courtroom standards of evidence can make us forget the fact, but in general, we can get knowledge from other people. There's a temptation to think "it's just a he-said–she-said situation, so there's no way to know what really happened". While there are of course some cases that are like that, it's not in general true that any time testimony is disputed it can't be known to be true. Sometimes someone tells me something, and I thereby come to know it, even though someone else denies it. This is especially likely when the thing told is generally plausible, and fits well with other things I know, when there's no plausible explanation about why the testifier would say it if it weren't true, and the denial is both weak and self-serving. All these features seem to me to be present in the current case (and in many similar cases).

I believe Aguilar's allegations. They are serious and credible. They cohere with other stories many of us have heard about Pogge. The asinine hypothesis that she'd make them up out of spite, or for some kind of personal benefit, is the risible product of a preposterously misogynistic imagination. I think it'd be an epistemic error not to believe them—and a moral error too. It would be derelict for us as a community to ignore that which it's reasonable for us to believe—indeed, what which I think we know.


  1. "The presumption of innocence is rightly considered a pillar of civilised society. But people have a tendency to over-apply it in irrelevant cases." I agree with that, but this is hardly an irrelevant case. The stakes are so high that the only possible outcomes seem to be either that Pogge is a criminal or that he has been the victim of an equally unacceptable defamation. So I don't see why we should reduce our notion of pressumption of justice to the mere absence of state interference unless the accused's guilt has been proven. Being unfriended on Facebook may be relatively harmless, but being widely thought to be a criminal by other people can result in that person's life being destroyed. Thus I believe that we should use a much more robust notion of "pressumption of inocence" than that which we would use in ordinary circumstances (in which our being mistaken doesn't usually bring about such radical consequences).

    And that brings us to my second point: again, I agree with you that we learn from other people about what happened to them all the time. But many testimonies don't involve an opposite and completely incompatible version of the story (if there are disagreements, they tend to be about the parts of the narration rather than the whole). And when they do involve competing incompatible testimonies, I'm still not sure that they are very reliable (in ordinary circumstances). I am not claiming that there is no way to know what version of the story is true (this is rightly discussed in the post), but only that maybe it is not quite realistic to think that we can gather all the relevant information for deciding it by ourselves (after all, that's what courts are for: they centralize an information essentially dispersed and not always explicit). And given the risks our potential mistakes impose upon the parties involved I believe that we ought to refrain from assigning any of them a higher degree of probability.

    Just to conclude: this is not to say that, at least in this particular case, we should not try to protect the most vulnerable party (in this case, Lopez-Aguilar), but only that we should do so in a way that doesn't entail that Pogge is more likely to be lying. Simply saying that "[t]he asinine hypothesis that she'd make them up out of spite, or for some kind of personal benefit, is the risible product of a preposterously misogynistic imagination." strikes me as too optimistic. Some people act badly, and even if it it's an uncontroversial fact that the amount of sexual harassers clearly outnumbers the amount of impostors, I don't think that should pollute this particular case, which, I believe, deserves an individualized treatment.

    1. On the concluding thought: I agree that we should treat the case on its specific merits, but I think that its specific merits make it very clear what to believe, for the kinds of reasons I gestured at in the post.

      On whether presumption of innocence applies: I reject the inference from "she's right then he's a criminal" to "we shouldn't believe her unless we can prove her right by courtroom standards". The presumption of innocence doesn't protect one from being believed to be a criminal. I think it's just obvious that there are at least possible cases in which public evidence makes it rational to believe that someone committed a crime, even though there is insufficient evidence for a criminal conviction. In such cases, we should believe the person to be a criminal, but we shouldn't send them to prison. The fact that it's harmful for someone to be believed to be a criminal doesn't mean we should ignore the evidence.

      Also, the sense in which the perception of criminal wrongdoing can "result in that person's life being destroyed" is a matter of perspective. Being professionally shunned, even losing one's job, would certainly suck, but going to prison for sexual assault is in a different league altogether.

    2. Thanks for your reply. I would just like to clarify something I don't think I have been clear enough about: when I claimed that a robust notion of the presumption of innocence should make us raise our standards(and then I used courtrooms as an example) I didn't want to imply that they should imitate those applied by courtrooms in every respect. I just wanted to defend the weaker claim that they should imitate them in at least one respect: namely, in the requirement that we dispose accurately of the relevant information. And then I added that we have strong reasons to suspect that we normally don't meet this requirement (if Pogge is telling the truth when he says in his letter that there is some information that he is not legally allowed to report, then I believe the present case also fails to meet it). I didn't want to rule out the possibility of cases in which is it rational to believe that someone is a criminal without believing that there is sufficient evident to convict her; the kind of reasons I am invoking are only prima face reasons.

  2. This comment has been removed by a blog administrator.

    1. I have deleted a comment from an anonymous person, because I didn't find it helpful and because it could easily be offensive to some readers.

      I use a much higher bar for moderation for anonymous comments. I do not give the benefit of the doubt that one is attempting a discussion in good faith. If the commenter would like to engage the discussion with more care or with an actual identity attached, I invite him or her to try again.

    2. "Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction."

      "every individual and every organ of society" shall keep "this Declaration constantly in mind" and "shall promote respect for these rights and freedoms."

      So are these norms for states, or are these norms for individuals and society (the state)? Is it that due process of law, public trials, penalties according to law are a good idea for states, or they're a good general rule of human conduct? If one wanted to say that this is an impossible standard to live up to, fine, but that doesn't mean we shouldn't strive to embody its principles in our individual conduct.

      I also think that pretending that "penal" suggests a liberty interest exclusively is incorrect, a fine is penal, as is being unfriended on facebook. Etymological arguments are tenuous, but the root is "pain." It could be that if you are going to do something that causes another pain (social rejection is well documented as causing pain in neuroimaging studies), you should use due process of law before causing the pain to another. Of course, one way to avoid this very high burden is to simply not do things that cause pain to others. In this context, it would mean that you simply suspend judgement, say something like "I don't believe either party, nor do I have an opinion about punishment, that is for a duly appointed judge to decide."

      The other clause of article 11 is this:

      "(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed."

      So, one reading of that is that the only penalties for acts of this nature should be those prescribed by national or international law. Imagine how much happier we would all be if all decisions that caused others pain were dealt with by independent adjudicators, rather than the current situation, which is a social system that relies on people causing and avoiding pain without due process of law.

    3. I am not sure whether you're serious or not in suggesting that e.g. we'd be "much happier we would all be if all decisions that caused others pain were dealt with by independent adjudicators".

      Like, if your comment gives me a headache, in your ideal world I wait for independent adjudicators to deal with the situation? In the meantime, I don't respond? (Or in the meantime I continue the conversation?)

      This just doesn't sound like a suggestion worth taking seriously.

  3. I am accusing you now of stealing my article and, therefore, you ought to consider removing it from your blog without any proof seeking process. Thank you for waiving the burden of proof.

    Saad Seill

    1. What article are you referring to? I deny having stolen anything, but if you wrote something similar I should have cited, I'd be happy to add a link. But I don't know what you're talking about. Your blogger profile indicates it is brand new

    2. I think, if I am reading them right, they are trying to imply that if we don't rely on trial-like standards, you are left with no epistemic standards, defeaters, etc. Which would be an odd view.

    3. Kathryn: that would be an odd view indeed! But I guess on that view I don't have to treat this allegation as epistemically relevant either.