Presume Them Innocent in Policy Debates, Too

During jury selection in a criminal case, I always bring up the presumption of innocence. It’s a big shift for a juror to presume the defendant innocent. Not merely to be open to the possibility he’s wrongly accused, but to presume he’s wrongly accused.

To help jurors appreciate the shift, I sometimes say to them: “I doubt any of you, on reading a newspaper article about an arrest of a robbery suspect, would say to your spouse, ‘Honey, there’s an article here about a poor guy who’s been arrested for a robbery he didn’t commit.'”

Yet our system of justice has for centuries required jurors to make that shift.

Lately I’ve been wondering if we need to make that shift in debating public policy. I wondered it this week when I read Radley Balko’s Washington Post blog post about campus sexual assault.

Balko notes that the most notorious cases of campus sexual assault keep falling apart. He mentions the Duke lacrosse players, the University of Virginia fraternity, and now the Harvard Law School student whose case is presented in the documentary film The Hunting Ground.

In exploring why many highly-publicized cases fall apart, Balko offers a hypothesis: journalists who see themselves as anti-campus rape activists seek victims whose stories they consider “emblematic” of the campus rape problem. Thus they are drawn to accusers who will spin their narratives to include elements the activists believe typify the problem and who are willing—perhaps even eager—to tell their stories publicly.

Maybe Balko’s theory is correct. Maybe not.

For me, the key fact is that these gut-grabbing rape stories so often turn out to be false, or at least unreliable. Yet they drive policy changes in treatment of the accused—changes in the criminal justice system and changes in campus adjudication of sexual assault complaints.

Suppose we brought the presumption of innocence to the policy debates. Suppose we didn’t assume each high-profile campus rape accusation was true. If we started by presuming innocence in these cases—in every campus rape case— we’d then ask what procedures we need to permit that presumption to be overcome by compelling evidence.

And we’d likely conclude that a criminal trial provides much better procedures for that than a campus adjudication process could.