I hope to paint a lot more sea monsters in the future.
@martha_anne_h on instagram.
As an attorney who has practiced in both criminal and civil cases, you’re absolutely right that “innocent until proven guilty” does NOT mean “an allegation is untrue until proven otherwise.” But I think your analysis is a little incomplete, especially since your wife highlighted the important distinction between criminal and civil standards of proof. The law doesn’t necessarily operate on allegations being strictly true or false. The more operative term is DOUBT and how much doubt there is that an allegation is true. Thus, a person is PRESUMED innocent (but not actually innocent) until the REASONABLE DOUBTS surrounding his guilt are dispelled.
The standard for criminal cases is that the prosecution has to prove a defendant’s guilt “beyond reasonable doubt.” What this means is that only unreasonable doubt remains as to defendant’s guilt, where it would be unreasonable for a hypothetical reasonable person to conclude that a defendant didn’t do it. It is NOT where there is ZERO doubts at all because it would be ridiculous to try and disprove unreasonable doubts due to the inherent unreasonable nature of these doubts. If there IS reasonable doubt, then the court legally cannot acquit, but that doesn’t automatically make a person “100% innocent” since they could be held civilly liable for the wrongful act since there is a lower standard of proof in civil cases (“more likely than not that the person did what they were accused of” or 51% likelihood). This is why OJ Simpson was not convicted of murder, but was then held civilly responsible for wrongful death in civil court and faced a lesser penalty of money damages (as opposed to imprisonment). It was more likely than not that OJ Simpson killed her, but there were still reasonable doubts to preclude a criminal conviction because there was still a high enough chance he didn’t do it.
Unfortunately, within the kink community, there is no “Kink Court” and there is no universal standard to self-police consent violations (unless formal charges are actually filed and the actual legal system is involved), and with so many of these occurrences happening in private, or are lost in the crowd at parties, the discussion is plagued by doubt and hearsay because eyewitness accounts are almost entirely non-existent. Some people adhere to the civil standard of “more likely than not.” Some people rely on an even lesser standard where just the fact that there was an accusation at all is enough to conclude it actually happened because “a reasonable person wouldn’t lie” (even though we all know that there are plenty of unreasonable people in the world). Others adopt the criminal standard and reserve judgment until their reasonable doubts are dispelled, while others take the criminal standard to absurd lengths and say that a person is 100% innocent until proven 100% guilty (as demonstrated by the opening hypothetical). When you have different people approaching a delicate situation with such wildly varying burdens of proof, of course these things won’t be easy to handle.
Simply put, the problem is doubt and different people reacting to allegations with different standards of proof. How can any of us possibly hope to investigate something like this when no one can actually agree on how much proof is enough to outweigh the doubts present? What’s the threshold? 51%? More than that? Less than that?
