By Attorney Robert Patillo

American culture has evolved by leaps and bounds in recent years. It is no longer an oddity to see a female CEO, Governor, Senator or even President.  Concurrent with those advances has been a new found “gravitas” associated with statements and claims that had long been disregarded regarding sexual harassment and sexual assault.

Women accused Bill Cosby of date rape for 50 years before the American public took them seriously.  Harvey Weinstein and Kevin Spacey were known sexual deviants for decades before any actions was taken.  Even Louis C.K. faced decades of stories regarding his treatment of women, but it was only in the modern context that anyone supported them.

Today, we finally live in a society where women are beginning to have an equal voice and the public is willing to believe them.  Women can now come out of the shadows and stop these predators before they can attack others.  This is regardless of their attacker’s money, position or power.

But with every advancement there are dangers.  Here, the danger of now believing every allegation without proof is that it leaves the door open for bad-actors to exploit this new found public trust.  That is to say, what do we do as a society if the alleged victim is lying?  How does an innocent person “prove” their innocence?

I have seen this in the court of law for years.  Once a false accusation of rape or molestation is slapped on a defendant, it is nearly impossible to disprove.  The burden shifts in the mind of the jury. Instead of the State having to prove guilt “beyond a reasonable doubt”, now the Defendant needs to find a way to prove their innocence.  Often this is impossible.  There is no physical evidence, no witnesses and no forensic evidence.  Just their word against your word.  That is not how the system is supposed to work.

This brings us to the curious case of Judge Roy Moore.  I do not know what happened between Judge Moore and the now 5 women who have come forward to accuse him of inappropriate sexual conduct. I was not there.  Judge Moore has been fervent in his denial; however, the women have seemed credible in their accusations.

The bigger issue is, if he is telling the truth how exactly would he prove it in the court of public opinion?  What evidence would he be able to produce from 40 years ago to prove his innocence? Would it even matter or is the damage already done?  Have we now entered a new era where the pendulum has swung in the opposite direction, and the mere accusation of impropriety in now enough for conviction?

We must find a balance as a society. As we step into this new era of giving victims of sexual harassment and assault the equal voice, which they have deserved for years, we must also consider the destruction that a lie can cause an innocent individual.  With no ability to prove their innocence, what can be done to save one’s name?

This is a serious conversation that needs to take place in our current not-so-serious political environment.  With a headline chasing #FAKENEWS media ready to jump on every lurid story, we must remember the stakes of being wrong.  People’s lives, families, careers and reputations hang in the balance.  As we work to ensure equality in our society, we must also be sure to protect those who are now faced with disproving the unproveable.  There is no good answer to any of these questions.  But as a democratic society we must address them.

Comments
  1. Bill Thomas says:

    False accusations are the fatal flaw in your argument. One of the most often quoted studies on the subject, False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases by David Lisak, Lori Gardinier, Sarah C. Nicksa, and Ashley M. Cote, states “the prevalence of false allegations is between 2% and 10%.” https://icdv.idaho.gov/conference/handouts/False-Allegations.pdf

    Even then, that study makes note of several factors, such as lack of cooperation by the victim or lack of physical evidence, that merely make arrest and conviction difficult if not impossible. Even if there was a single false accusation against Moore or any predator like him, what’s the realistic likelihood that the remainder of accusers are also lying?

    The problem with resurrecting the boogeyman of false rape allegations is that the sheer number of accusers outweighs the possibility of a false one.

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