I have a colleague down the hall who believes that “Any criticism of the State of Israel is anti-Semitism!” This is stupid, but in her case forgivable. She’s the daughter of two Shoah survivors, both of whom had tattoos on their arms.
I’m the grandson of four Shoah survivors, albeit only in a more attenuated sense. They survived because they emigrated to North America in 1912 from what would be, thirty years later, Nazi-occupied Eastern Europe. So though I too play my Jew card when it serves my purposes, for me to claim that any criticism of the State of Israel is anti-Semitism would be somewhat less forgivable.
So in the same way that some stupidities are more stupid that others, some, though equally stupid, are more forgivable than others. In some cases, like that of my colleague down the hall, the stupidity is born of an understandable bias. But in others it arises from straightforward diminished cognitive capacity. That is, the motivation is perfectly laudable. It’s just that the advocate hasn’t thought through the means to her laudable ends.
A case in point – and this is what I want to rant about here – is the Start-By-Believing campaign that’s been sweeping American campuses since 2011, and was adopted three years later in Canada as the I-Believe-You campaign. The I-Believe-You campaign is certainly as stupid as “Any criticism of the State of Israel is anti-Semitism!” But it’s more forgivable. Why? Because, unlike my colleague’s Islamophobic bigotry, the I-Believe-You campaign is clearly well-intentioned. It’s well-intentioned because millions of alleged sexual assaults go unreported – at least in a timely manner and to the appropriate authorities – precisely because the alleged victim knows that, except in the rare case of a violent attack by a complete stranger, her accusation will likely be met with a shrug and a “Well …”
Why is this so? Because it’s almost invariably his word against hers, in which case justice dictates we suspend judgment. And even where sexual contact is admitted, it’s almost invariably the question of consent. But when it comes to consent or its absence, there’s seldom if ever a clear fact of the matter. In fact it’s often as unclear to the person giving consent as to the person being given it. In short, the only thing physically messier than sex is food poisoning, and the only thing communicatively messier is … Nope, I’m drawing a blank.
So the purpose of the I-Believe-You campaign is twofold. First, the idea is that, if I tell an alleged victim that I believe her, then
- she’s marginally more likely to induce that so will the appropriate authorities, so
- she’s marginally more likely to report the alleged assault to them, and if she does, then
- it’s considerably more likely they’ll investigate, and so
- it’s marginally more likely they’ll lay a charge. If they do lay a charge, then
- it’s considerably more likely there’ll be a conviction and, if there is, then
- it’s marginally more likely there’ll be serious consequences to such criminal behavior, and so
- it’s marginally less likely that such would-be criminals will engage in such activity in the future.
And that, I take it, would be a good thing. Or it would be if there were empirical evidence in support of (1), (2), (6), and (7). But alas there’s not.
There is good reason to believe that if the alleged assault is reported it will be investigated. And if a charge is laid, there’s good reason to believe there’ll be a conviction. In fact the rate of conviction for sexual assault – assuming the matter makes it to court – is pretty much on par with most other criminal offenses. (Insert link.) The problem is that sexual assault cases seldom do make it to court. Why? Because the State – or in the UK and Canada the Crown – is duty-bound, and rightly so, not to bring a case forward unless it can be reasonably confident of a conviction. To do otherwise would do an injustice to the taxpayer, to the accused, and to the complainant. Why to the complainant? Because if what she’s looking for is justice, an acquittal will just add insult to injury.
And why is it so difficult to get a conviction? Because, as already noted, it’s almost invariably his word against hers. And even where sexual contact is admitted, the case almost invariably hangs, as already noted, on the question of consent. That is, since sexual assault is a criminal offense, the burden of establishing mens rea falls on the prosecution, and this burden is nigh impossible to meet. Why so difficult? Because the very nature of sex is such that if I thought I had her consent then chances are I had at least some reason to think so.
Of course none of this is writ in stone. We could make sexual contact without ongoing explicit consent a strict liability offense. But not unlike Prohibition, I’m pretty sure that women, no less than men, would be moving to reconsider the motion in very short order!
Let’s call this the inefficaciousness objection, because telling an alleged victim I believe her will arguably not reduce the frequency of sexual assault. What may reduce it is a campaign of public education, not unlike what was done with drinking and driving and second-hand smoke. But the I-Believe-You campaign, at least as such, makes little if any effort to educate offenders.
* * *
But what makes the I-Believe-You campaign stupid is not its inefficaciousness. If wasted effort were in and of itself stupid I would never enter a chess tournament. No, it’s that, to whatever degree the campaign could be efficacious, it’s self-defeating. Or more accurately, it needs to fail in order to succeed. To explain:
Presumably the I-Believe-You campaigner wants as many of us as possible to take the pledge. Certainly the more the better, and the very best would be if we all do. But if we all take the pledge, then no jury could be empanelled to try the case, every judge would have to recuse himself, and so no rapist could ever stand trial. So the I-Believe-You campaigner would have to hope there’d be a critical mass of people who’d refuse to take the pledge. Certainly if the campaign overshot it would have to try to undo itself. It would have to start campaigning for skepticism about reports of sexual assault. But ex the hypothesi above, that would reduce the number of cases that would make it to trial.
The only way around this, it would seem, is to replace “I believe you!” with “I believe you, pending reason to suspect otherwise.” But that won’t do either. The accused will take the stand in his own defense only if the prosecution succeeds in making a good case. For that matter the defense won’t bother to cross-examine the complainant unless she has made a good case. If she hasn’t made a good case, the judge will simply and rightly dismiss the case rather than let it go to the jury. But if her case consists of nothing more than her say-so, and the judge has taken the pledge as revised above, he has to convict on nothing more than her say-so. So once again he’d have to recuse himself since otherwise we’d have a straightforward violation of natural justice.
Or how ‘bout this? “I’ll believe you” – note the future tense – “if and when, having heard his side of the story as well, I find your version more convincing.” That would allow me to serve on the jury, but it’s exactly the response the campaign is trying to ‘correct’.
Let’s call all this the self-defeat objection.
I have a friend who supports the campaign and thinks she can duck this objection by claiming that, in this context, “I believe you!” doesn’t mean that I believe you, any more than “How are you?” means I’m curious about your health. In the same way that the latter is a greeting ritual, the former falls in the category of “My condolences!” when someone dies. It’s what one says, even if she thinks granddad was a complete asshole and his survivors are all well rid of the bastard.
But in that case decency requires I say the same thing to the guy whose denying the accusation you’ve brought against him. So if it were the case that “I believe you!” bears no more cognitive content than “My condolences!”, you, the alleged victim, should have no grounds to object were you to overhear me saying “I believe you!” to your alleged assailant. But you do. So “I believe you!” cannot be bereft of cognitive content like “My condolences!”
* * *
Whatever “I believe you!” means, it means something that cannot be said both to her and to him, and this creates a serious problem, especially for counseling services at colleges. The “We Believe You!” sign posted on the door is intended to encourage alleged victims – victims of whatever alleged injustice, including a false accusation of sexual assault – to walk in and seek assistance, and such services tout themselves as being available to everybody. So if a female walks in and reports that he assaulted her, and he walks in and denies it – or worse yet, if he reports that she assaulted him – the counselor is committed to believing both p and not-p. But no sane person can.
And so the sign is a lie. We’ve come to expect false advertising when it comes to products. But false advertising in counseling services is an egregious violation of trust. Its credibility is immediately down the toilet. And that hurts the very people the I-Believe-You campaign was launched to assist. It’s no consolation to be believed by people who cannot but believe.
But, you might rightly object, it doesn’t hurt the people the campaign was launched to assist. The “We Believe You!” sign posted on the counseling office door is as clearly code for “Women Only!” as was “Whites Only” code at the water fountain for “No Niggers Allowed!”
To be fair, most towns in the South did provide water fountains for blacks. And so colleges could provide a separate counseling office for male students. It could even post a “We Believe You!” sign on the door, since the ‘we’ and the ‘you’ are no longer ambiguous. One wonders, though, how long it would be before counselors from the two offices would insist on separate lunch rooms.
* * *
So far we’ve looked at what we might call the forensic objective of the I-Believe-You campaign, an objective which, laudable though it may be, cannot be achieved by subscribing to that campaign. But the second objective arguably can be.
When I say to someone that I believe her, I give her the visibility and empathy she’d otherwise be denied. Visibility and empathy have no forensic implications. Visibility and empathy are things we owe to each other even if neither is really warranted. That is, even if she left her keys in the ignition and her car was stolen, or she left her house unlocked and it was broken into, I do not say to her, “Well, what else did you expect?!” That’s something I might say weeks or months after she’s collected the insurance or recovered from the sense of violation. Or suppose she was conned by some salesman because she didn’t read the fine print. The right thing, at least at the time, is to offer a shoulder in solidarity.
But surely “I believe you!” is a strange locution by which to communicate one’s empathy and solidarity. Certainly it’s a locution incompatible with the kind of impartiality required of the school counselor.
It’s true that if my friends are in the process of divorce, I can be empathetic and stand in solidarity with both of them. But not if it’s a rancorous divorce. Then they’ll force me to pick sides. And how do I do that other than by saying to one of them, but not the other, “I believe you!”?
Worse yet, how does the parent or closest friend of an accused assailant say “I believe you!” to his alleged victim? Solace to the one is a knife in the back of the other. In short, ‘belief’ is just the wrong concept here. And so if by our words we’re to say what we mean, “I believe you!” is the right thing to say only by a parent or a very close friend. Otherwise it cannot but be a lie.
Alright, then. If “I believe you!” is not the way to respond when someone tells me she – or he – has been sexually assaulted, what is? How ‘bout something like this? “If you want to do something about this, let me take you to the police station so you can file a report.” If that falls short of what a citizen should say, then I guess I’m not much of a citizen.
One final comment, and then I’ll quit for the day. Because alleged victims of sexual assault find it nigh impossible to have their day in court, some are now exploiting social media to rape-shame their alleged assailants. This, I suspect, is going to terribly backfire, because he is now fully entitled, both legally and morally, to sour-grapes or slut-shame his accuser in retaliation. People who live in glass houses shouldn’t throw stones. And the internet is made of nothing but glass.
What all this shows is that there’s a cost to that principle of natural justice that says innocent until proven guilty, and sometimes that cost is not borne fairly. What does that show? That ‘just’ in one sense is not always ‘just’ in another. And what does that show? That living with others is always going to be morally messy. If you don’t like the mess, stay out of the kitchen.