The Presumption of Innocence When Too Many Victims Go Unheard

The Presumption of Innocence When Too Many Victims Go Unheard on

Jonathan Brown

Like I always say, never a boring moment for Muslims in America.  So there have been some controversies of late regarding women accusing high-profile Muslim scholars of sexual misconduct of various sorts.  All this has unfolded as the dam of public opprobrium finally broke before the accumulated weight of dozens of reports that Hollywood mogul Harvey Weinstein had been sexually assaulting women for decades.  Social media filled with women of every race, age and background testifying that they too had been victims of sexual harassment, assault, and worse.  Now a number of other prominent artists and media folk have found themselves resigning amid accusations of past misconduct. 

All this has intensified an already profound ethical, legal and media crisis in US society, one in which Muslims now also find themselves.  Like all great dilemmas, it is one in which we are faced with what seem to be two equally valid but seemingly irreconcilable concerns.  On the one hand, we have the fundamental premise of the presumption of innocence and the essential guarantee of due process.  On the other, we have the demonstrable failings of the very system that provides that due process.  In what follows I’ll refer to guilt or innocence primarily in the legal sense, but, as I hope I make clear, this often applies in our social interactions (the court of public/social media opinion) as well.
 

Innocent Until Proven Guilty
 

The presumption of innocence for the accused is a central principle in both Muslim and American law.  As some common law jurists have written, its main function in the courtroom is to remind the jury that the charges, arrest or detention of the defendant are not evidence of guilt, and that the prosecutor has to prove any claims they assert.1 This might seem banal, but it’s incredibly important.  It means that what we hear or see about the accused prior to the presentation of evidence should have no weight in how we judge a case after the evidence has been presented.  Moreover, as Nasr Pierce recently observed, “The presumption of innocence is as much a social concept as it is a legal one.”  Its validity extends outside the judiciary to the realm of interpersonal ethics and the court of public opinion, where it is an essential barrier against the defamation and ruination of those innocents who are accused baselessly. 

In the West, the notion of the presumption of innocence originates in canon law (the law of the Church) in the twelfth century.2  I can’t prove it, but I think the Church may have imported this principle from the Islamic legal tradition (the timing and patterns of influence in other areas work out), where it had been a central principle since the time of the Prophet ﷺ. 

The presumption of innocence and the burden of proof are cornerstones of Islamic legal procedure.  In sound Hadiths, the Prophet ﷺ  ruled that, in the case of one person accusing another of a wrong or of depriving them of some right, the accuser must provide some form of direct evidence (bayyina, which was commonly understood to be two upstanding witnesses, but in cases involving property or contracts then one witness and the oath of the plaintiff could count as bayyina; and especially after the 1300s CE scholars accepted compelling circumstantial evidence as meeting the threshold of bayyina as well).  In the absence of such evidence, the accused merely has to swear an oath to affirm their innocence.3 This rule was memorialized in the Hadith preserved in the ṣaḥīfa of ʿAmr bin Shuʿayb: The Prophet ﷺ said in a sermon, “Direct evidence is incumbent upon the plaintiff, and an oath is upon the defendant.”4 Of course, if the accuser did provide bayyina, this overwhelmed the defendant’s oath.  If both the accuser and the defendant both had bayyina, then jurists differed.  Some held that the presumption of innocence enjoyed by the accused carried the day regardless of how many witnesses or what other evidence the accuser provided.  The majority of jurists, however, held that the formal evidentiary test invalidated itself and the judge should then rule based on which side’s evidence was more convincing.

The reason for the rule set forth in the Prophet’s ﷺ Hadith was simple: people have rights, and there needs to be evidence if they are going to be punished or asked to relinquish them.  As the Prophet ﷺ explained in another sound Hadith, “If people were given [things] on the basis of their claims, then the blood and wealth of the community would be lost.”5  According to the Shariah, all human beings, whether Muslim or non-Muslim, enjoyed the rights (ḥaqq) of physical inviolability (nafs, dam), property (māl), as well as of due process.  From as early as we have records in the Islamic tradition, Muslim jurists were obsessive about protecting people from abuses of power that could deprive them of these rights.  A letter, attributed to ʿUmar bin al-Khaṭṭāb, to his officials reads, “Indeed God has assumed the hearts of the believers, and He has protected you all with [the requirement for forms of] direct evidence (al-bayyināt).”6  As Abū Yūsuf (d. 798 CE), the chief judge of the Abbasid Empire, insisted, “It is not for the ruler to extract anything from anyone’s hands without an established and known right (aqq thābit maʿrūf).”7 The Central Asian Shāfiʿī jurist al-Khaṭṭābī (d. 998) wrote two centuries later that it is beyond question to all Muslims, scholars and laymen, that “neither property nor life is forfeited except by some direct evidence (bayyina).”8

There were epistemological as well as policy reasons behind this presumption of innocence.  As the famous Indian jurist Shāh Walī Allāh (d. 1762) describes, the claimant (muddaʿī) is claiming some change or addition to the existing state of affairs, while the defendant is not introducing any new claim for verification.  In our daily lives, we generally assume that things continue as they are or appear to be until proven otherwise.  Claims that ask us to disrupt or adjust this require some kind of evidence.9
 

‘Crying Rape’ & Historical Injustices against Women


Our current dilemma pits this pillar of social and formal justice against an epic example in which that justice has not been rendered.  There is no doubt that violence against women is a global problem and that sexual assault is a major component of that violence.  It is present in every corner of American life, and it’s abundantly clear that some Muslim societies suffer from particularly toxic social atmospheres in which women suffer, amongst other indignities, ubiquitous harassment regardless of what they wear (I’m looking at you, Cairo).  Furthermore, research has also shown conclusively that, in the US, sexual assault goes underreported (I’ll treat this as axiomatic here).  Perhaps most alarmingly, it’s also clear that the US judicial system and the tribunal bodies of public and private institutions in the US have not historically proven themselves fair or effective venues for women seeking justice and relief from harassment or assault.

This situation has been maintained via numerous devices: the public shame and personal consequences women face when coming forwards with such charges, the false notion that women who have suffered assault ‘asked for it’ or ‘wanted it’ because of how they acted or dressed, and the unrealistic demands that the US legal system long maintained for proving that a rape had occurred (though this was much ameliorated by the rape reforms in American law from the 1970s-90s).  Another commonly cited trope for undermining women seeking justice is the idea that they are often ‘crying rape’, either to damage the life or career of a man or to alleviate their regret over a consensual sexual encounter.  

Feminists explain such failings as the result of patriarchy (it’s useful to actually define this term, since it gets thrown around a lot; Allan Johnson has defined patriarchy as “a social system in which men disproportionately occupy positions of power and authority, [and] central norms and values are associated with manhood and masculinity…”).10  The problem is that humans have been, up to the present day, a patriarchal species.11  There has never been a non-patriarchal society, just different degrees of patriarchy.  So if ‘the system’ is not just to women because it’s a patriarchy, there is nothing within that system that is free of this endemic flaw.  There is nothing phrased in the language or playing by the rules of that system that can transcend this structure and guarantee fairness.  Theoretically, total rectification can only come from going outside that system’s rules.  Hence the call of some feminist leaders to “Always believe the victim” regardless of what ‘the system’ says.  In the case of rape and sexual assault, this call takes the shape of the (now) commonly heard mantra, “Women don’t lie about sexual assault.” 
 

The Predicament
 

The problem is that, despite its failings, our existing US legal system has long had as one of its central, ideal missions the safeguarding of essential rights.  One of these is the right to due process and the presumption of innocence.  For Muslims, these rights are not just a matter of political commitment.  They are rules that come from Prophet ﷺ himself.  Like other efforts to correct longstanding imbalances, the feminist approach of bypassing the flawed mechanisms of courts and institutions by asking us to believe all victims pushes past the golden mean of justice and forces us onto a slippery slope certain to injure other innocents.  Hence our predicament as a society.

To be clear, the statement ‘Women don't lie about sexual assault’ is rhetorical, not factual (could anyone claim that half the human race is incapable of lying about something and expect to be believed?).12  What it translates to, in fact, is ‘Don’t jump to saying a woman is making up a charge of rape, since statistically speaking women rarely do this.’

But the problem here is that, although false accusations of rape are certainly rare, there is still real disagreement about how rare they are.  Commonly cited statistics put “unfounded” rape reports (i.e., in which law enforcement has concluded that no crime was committed) at either around 2% of accusations (according to one body of evidence) or in the range of 8-10% of accusations (according to another).  This substantial disparity results in part from the complexity of what is being measured.  How does one define an accusation (word of mouth, a report to a college or university counselor, something put forth on social media, or only a complaint to the police)?  And how does one define ‘false’ (see this useful resource).  For example, a ‘false report’ is often defined as one in which an accusation was reported to law enforcement, but those authorities determined that the events did not occur; a ‘baseless report,’ by contrast, is one in which the incident as it did occur does not meet the requirements for the crime alleged.  Some lesser crime or at the very least some unpalatable behavior might still have transpired. 

But imagine if the statement ‘Women don’t lie about sexual assault’ were taken literally in either a court of law or the court of public opinion.  It would mean that any man accused of sexual assault should automatically be convicted or socially condemned.  All without the man having any chance to answer the charges or establish his innocence.  But even if only 2% of men accused of sexual assault are innocent, there is no grounds for convicting that 2% of a crime or deeming them guilty in the public sphere.  Would we propose denying the accused a trial in other situations in which only a small percentage of accused turn out innocent?  In (fiscal) 2014, for example, 97% of those ultimately convicted criminals in federal court actually pleaded guilty.  Should we still require the US government to go through trials to prove guilt?  I think most people of conscience would see this as a clear slippery slope to grave abuse and injustice.  In order to avoid this, there needs to be some process by which this 2% is sifted from the guilty majority. 

Now, it’s conceivable that the burden of proof could be shifted in cases of sexual assault charges, so that accused men were presumed guilty until proven innocent.  But, as far as I know, such a maneuver would be almost unprecedented in post 1200s Western legal history (one legal scholar wrote of a presumption of criminal guilt that “no civilized system of law could possibly avow and apply such a principle”).13  Instances in which this burden is shifted in American law, such as the invocation of res ipsa loquitur in cases of civil damages caused by negligence (at least as understood by some courts), are only justified because the facts in question are so unusual and patently odd (like a 600 lbs. cow falling through a ceiling onto someone) that it’s assumed something went wrong and the defendant is to blame unless they can prove otherwise.14  But sexual interactions are not unusual.  They are the opposite of unusual.  They are, in fact, essential for the existence of our species.  Imagine if men had to collect some sort of evidence or documentation every time they had sex in order to defend against a potential subsequent rape accusation that required no more proof than their partner’s accusation.  There has to be some sort of process for sorting out even the 2% of false rape charges, and that process must respect the presumption of innocence for practical and principled reasons.

So people of conscience are faced with a dilemma.  If the legal and social mechanisms for assessing the guilt or innocence of a man accused of sexual assault have been historically unfair to women who have, in fact, been victims and come forward to name their attackers, then deferring to the verdicts that those mechanisms render risks continuing this trend.  The system, which long turned the presumption of innocence into an effective guarantee of it when the accusers were women, cannot be trusted not to be replicating that injustice again today.  But even those who staunchly advocate ‘always believing the victim’ admit that this is an argument for overcompensation and that some, if not many, of the supposed victims are lying.  I suppose the only solution here is to continue efforts to refine our judicial system so that the complaints of victims of sexual assault are taken seriously, processed expeditiously, and that judges and juries recognize the systemic obstacles to women receiving access to justice.
 

The Court of Public Opinion
 

The debates that have swirled within the Muslim community in the West recently have been as much about the court of public opinion as they have been about the law.  This is in great part because Muslims try, admirably, to apply the principles of God’s law in their public interactions.  A few salient patterns have emerged.  I will point out below what I see as serious flaws and harms emanating from these patterns of behavior.  First, I’ll list ones I’ve noticed from more traditionally-minded Muslims.  Then I’ll look at ones from those who define themselves as ‘liberal’ or ‘progressive’ Muslims. 

1. Calls for Satr: Many Muslims have responded to public allegations of sexual misconduct by calling for satr, or the Prophetic teaching of turning a blind eye to people’s private misconduct.  Rooted in the Quran (49:12) and the Prophet’s teaching that we should not “seek out a people’s secret or shameful areas,” the principle of satr instructs us not to indulge in speculation or rumor mongering about such things.15

Of course, the problem here is that ‘private misconduct’ that demonstrably harms or victimizes other people is not private misconduct.  Responding to the saying, “A man is not asked why he beat his wife,” the famous Shāfiʿī jurist al-Rāfiʿī (d. 1225) objected that this could never be accepted as a principle of law because privacy is not a shield to harming others.16  If we fail to recognize the limited application of satr, then we allow it to serve as a shield for people to abuse others with impunity. 

2. The Evidentiary Bar for Zina: Many Muslims, presented with reports about some public figure’s alleged sexual indiscretions, respond by citing the Quran’s warning against unproven accusations of Zina: anyone who accuses someone of adultery and does not provide four witnesses to the alleged act should be lashed 80 times and should never again have their testimony accepted (Quran 24:4).

This is an extremely important principle of Islamic criminal law.  But this does not mean that Muslims should ignore reports about unethical conduct unless it reaches this evidentiary standard.  Whether in determining if someone was a reliable Hadith transmitter or when a judge was examining candidates to be recognized notaries (shāhid) for the court, the decision-makers in question would collect information about individuals in order to assess whether, overall, the candidate’s conduct met the standards of justice (ʿadl) and virtue (muruwwa).  In these processes, the evaluating party would weigh carefully what he or she heard and try to assess the reliability of the information.  But there was no requirement for meeting the incredibly high, nigh impossible-to-meet standard of evidence for Zina.  Finally, and crucially, not every warning or report about someone’s unethical conduct with the opposite sex amounts to an accusation of Zina (actual sexual intercourse).

Among Muslims identifying as ‘liberal’ or ‘progressive’ as well as among Muslims who have adopted their approach on recent controversies, several patterns have emerged:

1) This is not a court of law: It has been repeatedly, and correctly, pointed out that the standards of evidence used in American courts are not the same ones we use or should use in our daily lives.  This is even more true of the standards of evidence for Zina in the Shariah.  If we are considering someone for a nanny or babysitting job and one of the candidate’s references says “This person is not trustworthy,” we would not hesitate to end the process right then and there.  We might do this even based on rumors we’ve heard about the candidate.  It’s simply not worth the risk hiring the person if the rumors are true.  This is quite valid according to Islamic ethics, since warning people against the substantial harms that others could cause is a situation in which speaking badly about people behind their back is allowed.

But our very reasonable right to take information or impressions of people into consideration when deciding if we should trust them, and the permissibility of warning others privately about someone’s faults do not equate to the public endorsement or public parroting of unproven accusations.  If a potential babysitter’s reference warns me about their irresponsibility, I would be justified in passing this information on in private to a friend who told me they were considering hiring the person.  But it would not justify me posting this on social media. 

One might object: But shouldn't I try to protect as many others as possible from being harmed?  Yes, provided I am certain of someone’s misconduct, since truth is a defense against any accusation of slander and protecting others from harm supersedes the duty of satr.*  But establishing truth is hard to do in daily life, so the trade-off for being able to rely on unverified reports (like those from a letter of reference) is that our reliance on them be limited to the realm of private discretion in affairs in which our discretion is valid, such as hiring babysitters, and that the information be limited to that relevant to the job in question (see this discussion on qualified privilege in American law).  Publically posting or re-posting unfounded allegations about someone is dangerous because it increases the potential damage of false or misleading information well above the presumed benefit of taking that information into consideration in a private matter.  It’s also potentially defamatory.

*Important note: Publically accusing someone of Zina is an exception to the notion that stating truth cannot be slanderous in Islamic law.  This is due to the unique features of criminal procedure around the Hudud crimes.  In the case of accusing someone of Zina, even if the accusation were obviously true and everyone knew it, if the accuser could not meet the impossible high evidentiary bar, they would be punished with the Hadd for slander (qadhf).  But what about women seeking justice for rape (i.e., coerced Zina)?  Of course, Muslim scholars agreed that a victim of rape was not guilty of the Hadd crime of Zina.  In the Shariah, rape had both a ‘civil’ and a criminal dimension (here I’m using categories from American law for convenience sake, they are not fiqh categories).  The ‘civil’ was the damage done to the woman and for which she could recover compensation.  The criminal was the Hadd crime of Zina by the man.  In order to prove that the ‘civil’ wrong had been committed, the woman needed only to meet the normal burden of proof (bayyina), which might be no more than her oath along with circumstantial evidence.  This is important because it allowed a person to seek justice for rape without having to meet the impossibly high standard of evidence for Zina

But how could a woman accuse a man of the civil offense of rape without risking being punished for slander for the unsubstantiated Zina charge that would automatically apply if she had less than four witnesses to the act?  This was achieved by two means, in particular as elaborated in the Maliki school.  First, jurists distinguished between a party bringing an accusation as the victim and a party bringing the accusation of Zina as a witness/third-party accuser to the act.  Qadhf was only a crime if done by the second type of party.  Second, many jurists allowed what amounted to a suspension of the normal rules on slander in order to accommodate what would otherwise be an impossible situation.17

2) Multiple sources: An insightful observation has been that we should believe accusations of misconduct against a person if they come from multiple sources.  Isn’t this the method that Muslim scholars used in authenticating Hadiths?  Yes, this was their method, but it’s only justifiable if employed in full.  First of all, reports can’t be anonymous.  Without a name, we (or, more appropriately, whatever panel has been charged with ascertaining guilt or innocence) have no capacity to assess a person’s reliability.  What’s more, we can’t determine if the second requirement is met, namely that reports have to be independent of one another.  Otherwise there could be collaboration in fabricating accusations.  In one case of accusations of sexual assault in a Muslim organization about a decade ago, the accused was confronted by two parties each saying they had heard the complaints from two other parties.  After an investigation, it turned out that all the reports originated with one person.  In the case of Harvey Weinstein, I would say that society at large can be fairly confident that he is guilty of at least some serious misconduct, since dozens of specific women, many of them very respected for their integrity, have come forward publically and independently.

3) ‘Always believe the victim’: We’ve already discussed this concept, but it is worth examining its flaws in the current circumstances.  Many of those advocating this idea in light of recent events do so with the laudable intentions of offering care for victims and of compensating for institutional, legal, and communal failures to respond to the abuse of the vulnerable.  But we need to distinguish between our capacity as providers of comfort and aid to actual victims as opposed to voices urging public positions.  If someone comes to me privately and tells me that ‘Shaykh So-and-So sexually assaulted me,” of course I would immediately respond that I believed the person and offer whatever comfort I could.  In this sense, I would (and I have) ‘believe(d) the victim’ even if I harbored doubts about the truth of the allegation.  I would then pass the matter on to whatever appropriate mechanisms of care or accountability were available because I’m not a professional counselor or lawyer.  This immediate offer of comfort and assistance in seeking aid and justice does not undermine the presumption of innocence of the accused party, since it is all done privately.

This is totally different from making public declarations, on social media and elsewhere, that ‘we’ should all believe the allegations of sexual misconduct levelled against specific individuals. 

Some Muslims have argued that we should all, publically, both believe the allegations of victims and believe in the presumed innocence of the accused.  But this is neither logically possible nor socially realistic.  Publically announcing that an alleged victim’s accusations should be believed is the logical and sociological equivalent of affirming the guilt of the accused.  And this should not be done without them enjoying due process.

Some might object: But what about our duty to care for victims, victims who are all too often ignored?  The answer is obvious: How does a person in the United States posting on Facebook that an alleged victim in, say, Germany, should be believed amount to offering any comfort to that person?  Certainly, we should advocate for the pursuit of justice.  And in conditions in which women have far too often been ignored or vilified for seeking justice against those who have abused them, public shows of support for alleged victims can help ensure that they will have their day in court and that the court takes its job seriously. 

But if this is our objective, then we should publically call for the victim’s allegations to be taken seriously and examined fairly and on their merits, regardless of how powerful the man accused is.  We should not make public pronouncements that “Women don’t lie about sexual assault” because, in doing so, we are denying the very real possibility that the allegations in a particular case are not true, and we are complicit in denying the accused the due process and presumption of innocence that are so crucial for an ethical and functional society.

Finally, a serious question is how we ourselves should react in our private interactions after we’ve come across some non-corroborated allegations made against some public figure.  Here we should remember that we as individuals almost never have access to anything close to the full body of facts about a situation and that, as a result, our personal analysis is utterly devoid of benefit to ourselves or anyone else.  It is just specu-tainment. 

We Muslims in the US need to develop an informed, well organized and respected body that can actually look into accusations and hold the guilty accountable at the communal level.  But in the absence of such a body, there is no way for a normal individual to assess the guilt or innocence of some public figure.  Because announcing the innocence or guilt of the accused would be both unfounded and unfair, on an individual level we should withhold judgment completely and refrain from commenting publically.


1. Carleton Kemp Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Clarendon, 1931), 293.
2. Kenneth Pennington, “Innocent until Proven Guilty: The Origins of a Legal Maxim,” The Jurist 63 (2003): 106-7, 112.
3. See Ṣaḥīḥ al-Bukhārī: kitāb al-rahn, bāb idhā ikhtalafa al-rāhin wa’l-murtahin…;
4. Jāmiʿ al-Tirmidhī: kitāb al-aḥkām, bāb mā jā’a fī anna al-bayyina ʿalā al-muddaʿī wa’l-yamīn ʿalā al-muddaʿī ʿalayhi.  (T#1391#)
5. Ṣaḥīḥ al-Bukhārī: kitāb al-tafsīr, bāb sūrat āl ʿImrān – bāb inna alladhīna yashtarūna bi-ʿahd Allāh…(#B4594#)
6. fa’inna allāh tawallā min al-ʿibād al-sarā’ir wa dara’a ʿankum bi’l-bayyināt; al-Khaṣṣāf, Kitāb Adab al-qāḍī, ed. Farhat Ziadeh (Cairo: American University in Cairo Press, 1978), 45.
7. Abū Yūsuf, Kitāb al-Kharāj (Beirut: Dār al-Maʿrifa, 1979), 65-66.
8. Ḥamd al-Khaṭṭābī, Maʿālim al-sunan, 4 vols. (Beirut: al-Maktabat al-ʿIlmiyya, 1981), 4:14-15.
9. Shāh Walī Allāh, Ḥujjat Allāh al-bāligha, ed. Sayyid Aḥmad Balanpūrī, 2 vols. (Deoband: Maktabat Ḥijāz, 2010), 2:507. 
10. Allan Johnson, Untying the Gender Knot: Unraveling our Patriarchal Legacy (Philadelphia: Temple U. Press, 2005), 4-15.
11. “In every society in the world that has left written records, men have more power and access to resources than women…” Merry Wiesner-Hanks, A Concise History of the World (Cambridge: Cambridge University Press, 2015), 58.
12. I actually checked on this conclusion by posing this question to a feminist Facebook group.  I was given a number of very clear answers to this effect.
13. Allen, Legal Duties, 253.  Though the author notes that the presumption of innocence was both formally and substantively absent from English criminal trials into the 1500s, with the presumption being that the accused was guilty until he could prove otherwise, if he could it at all; ibid., 271.
14. Fred E. Heckel and Fowler V. Harper, “Effect of the Doctrine of Res Ipsa Loquitur,” Illinois Law Review 22 (1928): 731.
15. Sunan of Abū Dāwūd: kitāb al-adab, bāb fī al-nahy ʿan al-tajassus.
16. ʿAbd al-Karīm al-Rāfiʿī, al-Tadwīn fī akhbār Qazwīn, ed. ʿAzīz Allāh al-ʿUṭāridī, 4 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1987), 1:152.
17. See Hina Azam, Sexual Violation in Islamic Law (Cambridge: Cambridge University Press, 2015), 229-232.


By Jonathan Brown , 14 Nov 2017

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