The presumption of innocence, reasonable doubt and factual innocence

There is a lot of heated discussion going on here and around the blogosphere over the rape accusation made against Dominique Strauss-Kahn. Yesterday it was revealed that the complaining witness, an immigrant from Guinea, has lied repeatedly about her past and about minor details of the incident. We also learned that her boyfriend is a drug dealer, he had money in a bank account and five cell phones under her name. The two worst revelations were that she lied about having been gang-raped on her asylum application and she discussed how to profit from the incident with her boyfriend the day afterward.

Some people think this is proof that DSK is innocent. They are wrong – at most it shows that her credibility is unreliable therefore establishing reasonable doubt.

Our legal system, inherited from England, gives criminal defendants a presumption of innocence. This requires that the state overcome that presumption with evidence beyond a reasonable doubt before the power of the state is used to take someone’s property, liberty or, in extreme cases, their life.

This is a legal concept that does not necessarily apply to society in general. Would you let an accused child molester babysit your children because he had not yet been convicted and was therefore presumed innocent? I would hope not.

But what about someone who was acquitted? Are they then factually innocent? Not necessarily. There is a place in between “guilty” and “innocent” sometimes called “not proven.”

There are many reasons why a guilty defendant might be acquitted or have the charges against them dismissed. First and foremost there may simply be insufficient admissible evidence against them. A confession might be excluded on a technicality or incriminating evidence thrown out because of an illegal search.

In the case of DSK the complaining witness’ credibility has been impaired enough to create reasonable doubt. That does not mean she was not raped. It is undisputed there was a sexual encounter. The issue is whether it was consensual or not.


The reason it’s nearly impossible for the prosecution to pursue these charges, even though there’s no evidence that she lied about anything related to the actual events surrounding the alleged crime, is because we live in a culture where rape victims need to be flawless in order to be believed. We live in a culture where it’s damn near impossible for any woman, when her life is held up to the light, to be considered innocent. We live in a culture where we think it’s even reasonable to question a rape victim’s “innocence” in the first place. We live in a culture where accusers of high-profile men undergo even more scrutiny than usual from a media hungry for a story and playing by an old rule book. And we live in a culture where the public destruction of every woman who makes a rape accusation is used as fodder in subsequent rape cases, establishing a cycle where we believe that women must be lying because the women before her were lying, so we feel justified in going out of our way to find any scrap of evidence that might indicate she has ever done anything ever in her life that we might find unsavory even if it has nothing to do with the case at hand, and then we use that to determine that she’s not credible, and then we use has as another example of how women lie about rape. And then powerful men are even more emboldened and feel more justified in treating women like garbage.

If we were to use the “perfect witness” standard it would be open season on lots of women in this country because they have said or done things in the past that would forever impeach their credibility. This would include current and former prostitutes, drug users, any woman who was ever convicted or fraud, passing bad checks, lying to the police, perjury or women who have ever been promiscuous.

Dominique Strauss-Kahn has not been proven innocent, he just hasn’t been proven guilty.

BTW – anyone offering theories of complex conspiracies to frame or set up DSK needs to get a new foliehatt.

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52 Responses to The presumption of innocence, reasonable doubt and factual innocence

  1. myiq2xu says:

    This is for the guys – think of ten women you know – your mother, sister(s), wife, daughter, co-workers, girlfriends, or just friends – odds are at least two or three of them were sexually assaulted at some point in their life.

    Just because they never told you about it doesn’t mean it didn’t happen. Class status, education, wealth, all those things are irrelevant.

    • myiq2xu says:

      BTW – the chances are that the ones who were sexually assaulted did not make a police report – most sexual assaults go unreported.

  2. WMCB says:

    I am not categorically opposed to conspiracy theories per se, as the rich and powerful have so often in the past been found to be…um…conspiring.

    But even for those who think something like that could’ve happened – i.e. browbeat/blackmail this poor woman into setting him up, get him to resign, then quickly drop charges based on “new evidence” , then you WANT TO SEE THIS GO TO TRIAL. Because that’s the only way it’s going to be uncovered if that tinfoil theory happened.

    • myiq2xu says:

      I am always skeptical of alleged conspiracies involving large numbers of people.

      As Ben Franklin said, “Three people can keep a secret if two of them are dead.”

    • Choosing this particular woman for a set up would be ridiculous. (Imo most advance set up theories about anything are ridiculous: too many people.)

      I’m suspicious about the timing and the motives of the police. Taking it to trial would give DKS HIS day in court to bring out possible misconduct by the police — as Simpson did.

      Instead, the case went far enough for Geithner to demand DSK’s resignation, for DSK to be replaced, and other damage to DSK’s party near an election. Then the police conveniently back off before DSK could get his day in court.

      • 1539days says:

        The problem with that theory is that Geithner will be in a whole lot more trouble (or not, he is resigning) when DSK comes back to France to run for president. There’s nothing like a trumped up charge to drum up French anti-imperialism. Sarkosy is the most pro-American French president in a long time. Being found not guilty could very well put him in charge of a very powerful country.

        • You’re arguing that Geithner would not have stuck his neck out. Fact is, Geithner DID. If anything, your point suggests that Geithner had inside knowledge that his neck would be safe. Too much conspiracy for me! 😉

      • Three Wickets says:

        The alleged victim wants a trial, the alleged attacker does not. They should take it to trial. You make it sound like a conspiracy that Geithner calling for DSK to be replaced. NYPD arrested him for rape, and DSK was sitting in Rikers. What is Geithner going to say…let’s all wait till after Dominique’s trial to figure out what to do in Europe?

        • Doesn’t need to be a conspiracy. “Shall we leave this big shot alone like we usually do?” — “Hm. There are other big shots who might like him damaged. Let’s let it look big and see what happens.”

          Geithner reads the papers. No one has to send him a secret message that now’s a good chance to get rid of that pesky Socialist. If not Giethner, plenty of other vultures to swarm around a wounded liberal.

        • Three Wickets says:

          I’m going to say that Geithner and DSK basically come from the same political gene pool, so to speak.

        • Geithner was in the Clinton admin but he works for Obama now.

      • Three Wickets says:

        The evidence for rape is strong. The evidence for a conspiracy that stretches from Sarkozy to the alleged rape victim hatching some plan to entrap DSK as far back as 2004 in her native Guinea…that evidence is nonexistent. But let’s not let that stop us from speculating.

  3. Dario says:

    I believe that it’s women, the true victims, that are hurt the most when a woman falsely accuses a man of rape. For that reason, and because I consider rape one of the most heinous crimes (too often dismissed when it shouldn’t), it’s in the best interest of women to dismiss false accusers. Look at all the evidence that is public, and decide based on those facts if the man were your brother, or another male friend whether her word is more valuable than your kin’s.

    That’s all I’m going to say here.

    • myiq2xu says:

      when a woman falsely accuses a man of rape

      What about her presumption of innocence? Do you think there is enough evidence to convict her of making a false accusation? (as opposed to lying to the cops or perjury)

      BTW – I think if a woman is found guilty of making a false rape accusation she should receive the same punishment he would have received.

      • Imo “the same punishment” is too strong. The woman can too easily be mistaken on some points, without intending to make a false accusation.

        Issues of consent, what constitutes consent, whether the man understood her lack of consent, etc etc are just too hazy to punish the woman for getting something wrong. Or (absent physical threat) to sentence the man for getting something wrong. Even the charge, and (for the man) legal fees and imprisonment awaiting trial, and the scandal — are already strong punishment for both parties.

        • myiq2xu says:

          I’m not talking about a mistaken ID – I’m talking about a deliberate false allegation.

          In California during the 80’s we had lots of child molest allegations arising in custody proceedings. It was an instant trump card.

          Then they passed a law that said if one parent makes false child molest allegations against the other parent it it presumed that that parent is unfit to have sole or primary custody.

          The number of molest allegations dropped off dramatically.

        • ralphb says:

          Oh Jeez, I just remembered the McMartin PreSchool case from LA. That was flippin horrendous.

    • Three Wickets says:

      And you’ve already made up your mind that this alleged victim is a falsely accusing lying bitch before they go to trial and all the evidence is made available to a jury. I’m sure victims of rape everywhere thank you for your generous perspective.

    • angienc says:

      . . .because I consider rape one of the most heinous crimes (too often dismissed when it shouldn’t),

      But bjs are not & never can be rape, right? (rolls eyes)

      I don’t know whether to laugh or cry. I seriously am dumbfounded that you have the nerve to write the above sentence after all the posts I’ve read from you these last 2 days — IMO you have done everything you can to ensure that NO woman comes forward with allegations of rape EVER.

      You’ve got it exactly backwards — women need to not jump to the conclusion that another woman is lying about rape without evidence beyond a reasonable doubt that she is, in fact, lying about it. (hint: newspaper accounts are NOT evidence beyond a reasonable doubt that anyone is lying about anything).

    • Valhalla says:

      The level of false rape reports is about the same, or less, than it is for other crimes. And most perpetrators of sexual assault have multiple victims.

      So this false dichotomy you’re trying to draw here is logical crap. Most of the men anyone here knows are not, in fact, perpetrators of sexual assault. So casting around imagining what you’d think if someone accused them of assault is in no way parallel to myiq’s suggestion to think of 10 women you know. He’s citing a tragic fact, while you’re trying destroy the credibility of sexual assault victims based on an illogical, ill-founded hypothetical.

      But extra points for putting the burden not only on the victims, but on mansplaining how women in general need to feel about rape accusations!

  4. yttik says:

    From the thread below:

    “The woman was allegedly purposely assigned to the Midtown hotel by her union because it knew she would bring in big bucks.”

    Hmm, so unions are now in the business of pimping??! This should give the anti-union people some ammo.

    Actually the misogyny and victim blaming is so predictable it’s rather boring. Sad, unfair, but repetitive and boring.There’s half a dozen other things I’d really like to know more about, but they’re never going to ask. Like, why did the head of the sex crimes unit really resign? What is the union’s real role? Why was Kahn so desperate to find his cell phone?

    • WMCB says:

      Yeah, I noticed that union line as well, and went “Huh? What is that supposed to mean?” I’d like to know about that.

    • It’s been suggested that the record of calls on the cell phone would give clues to what financial negotiations were in works — useful for speculators. Hell, if I lost my cell phone, I’d try to get it back too.

      Head of the sex crimes unit resigned? When? That could be interesting.

  5. sandress says:

    I’m officially done here. I’ll be back tomorrow. See y’all.

  6. Nell says:

    Good post, myiq.

    I’ll add that the notion of a presumption of innocence applies only within the confines of the courtroom. Right or wrong, criminal defendants, especially in high profile cases, are tried in the court of public opinion all the time.

    I don’t hear anyone yelling from the rooftops that poor benighted Casey Anthony is “innocent until proven guilty.” There are thousands upon thousands of upstanding, law-abiding American citizens who would gleefully volunteer to administer the lethal injection right now before any jury has rendered a verdict.

    • myiq2xu says:

      OJ was acquitted but many people still think he’s guilty of a double murder.

      (including me – I think LAPD tried to frame a guilty man)

    • yttik says:

      Nell, I’ve been yelling from the rooftops about Casey Anthony. I get it, she’s an bad woman, didn’t like motherhood, wanted to party, lies a lot, is too composed, is not composed enough. Not one of those damn pieces of evidence tells me anything about whether or not she killed her kid.

      • Nell says:

        LOL. This is what I get for making such an absolute statement (and I should know better!). Anyway, good for you, yttik, for advocating for Casey Anthony.

        Truth be told, I haven’t followed the case all that closely, but the comments I’ve seen all over the internet have overwhelmingly proclaimed her guilty, many calling for her death.

        From what I have read of the evidence presented, I would agree that the prosecution’s case is a far cry from a slam-dunk.

    • 1539days says:

      Geraldo has been advocating for a fair trial for Casey Anthony. He thinks the prosecution case is weak. She may not be “innocent” but she could very well be not guilty.

  7. yttik says:

    It’s really a ridiculous double standard, I mean Kahn has been actually charged with corruption, he has been accused of rape before, and he lied several times about this particular incident. Those are all documented facts. Just the same, his character, his lying, has no bearing on this case at all. In S/A cases it’s always all about the victim, almost always a woman. Not so in any other crime. We don’t care if a male mugging victim was promiscuous, we don’t care if he once lied on his taxes. All we care about in most crimes was whether or not the defendant was the one who did it. When it comes to rape you first have to prove that you are a worthy enough human being to deserve justice. Since most women are viewed as evil in some way, good luck with that one.

    • So did Bill Clinton.

    • angienc says:

      When it comes to rape you first have to prove that you are a worthy enough human being to deserve justice.

      You are so right about this. I once heard a judge say (in chambers, not in open court & only to other judges with a few of us law clerks within hearing — and no, I’m not naming him) re: a civil action case after criminal conviction in a rape case “But what are her damages? It isn’t like she was a virigin.”

      Yes, that is an EXACT quote — I’ll remember it until the day I die.

      • WMCB says:

        Some of our judges are so neanderthal as to boggle the mind. I remember a family court judge saying in open court to my husband, when he was fighting to get custody from his abusive, batshit crazy, pill-popping ex, who had just tried to kill herself and sat the children down and made them watch her do it:

        “Men have no business raising children, especially girls” (one of the children was his 10 year old daughter.) My jaw dropped. We did eventually end up with both his children, thank God.

        I have no idea how lunatics like these stay on the bench.

    • djmm says:

      Good post about the presumption of innocence, myiq, and good point, yttik. If her credibility is at issue, what about his? We know he has lied about this particular incident.

      Frankly, I think many people who would not lie about being raped would lie to get the chance to immigrate to the US. I have not heard that she named individuals who she wrote gang raped her in her native country and tried to prosecute them. In other words, that false accusation would not hurt any innocent people.

      I would not say her credibility is damaged, myiq, (if I might respectfully quibble with your post), simply that it may be at issue — it would be for a jury who would hear her story and see her demeanor on the stand to assess whether she was telling the truth about the alleged rape, and see if her story or his matches with the physical evidence.

      I hope that they do bring him to trial so we can actually hear all the evidence.


  8. myiq2xu says:

    From the comments at Legal Insurrection:

    Some things are missing in this situation, like a scream or evidence that the woman put up a fight.

    Fortunately for women that isn’t the legal standard.

  9. 1539days says:

    DSK is considered as innocent as possible. He’s been granted freedom of movement, granted he doesn’t leave the area. It doesn’t mean he is innocent.

    My uninformed opinion is that the NY DA’s office is loathed to prosecute this case now. Almost any prosecutor tries to avoid trials where reasonable doubt is likely. One possibility that I don’t hear a lot yet is that DSK may plead guilty to a very reduced charge to save face for the state.

    The physical evidence is certainly a lock, but it meaningless if the defense argues that he was paying for sex. Previous lies, criminal activity and prostitution are all valid ways to impeach the witness’ testimony.

  10. Pips says:

    Now what if … the maid had had the same means as Strauss-Kahn to engage a company like TD International. a Washington-based PR firm founded by former CIA officers, to dig up slander, dirt … whatever, to make him look shady?

    It’s the same firm he hired back in 2007 to help him push for the IMF post which also back then payed off pretty well. Must be nice to have a wealthy, loving, forgiving spouse at/on your side.

  11. ralphb says:

    OT or is it? Noisy penis that sings

    A team of biologists and engineers told the Society for Experimental Biology Annual Conference in Glasgow that they had found the 2mm long insect is capable of making a din measuring 99.2 decibels – the same level as a full orchestra playing at its loudest.

    That makes the bug, or Micronecta scholtzi, the noisiest animal on the planet relative to its body size,.

    The male water boatman generates the sound by rubbing its penis against its abdomen while underwater, as it attempts to attract mates.

  12. Lola-at-Large says:

    In some alternate universe this woman is the Manhattan DA and Hillary Clinton is POTUS.

  13. angienc says:

    BTW — something I just remembered. In France, the accused is presumed guilty until proven innocent — so those asshats who are already hailing DSK as a “saint” and “wronged victim” can really KMA.

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