Guilty Until Proven Innocent

A landlord sues a tenant for not paying rent four months in a row.  The tenant says the rent was paid on time each of those months.  The landlord's lawyer asks the tenant for some proof that the rent was paid.  The tenant, who is representing herself, says she was not given receipts when she paid the rent, and it was paid in cash, so there are no bank records of the transaction aside from withdrawals for amounts that represent rent as well as some bills.  Because there is no proof the rent was paid, the judge rules that the tenant has to pay the landlord the value of four months rent.

An employee blows the whistle on an OSHA violation where he works.  A week later, he is fired without cause.  He knows that there are anti-retribution laws specifically intended to protect whistle blowers, but he cannot afford a lawyer, so he walks away.  He ends up unemployed for over 6 months, because his previous employer lies about his character when called for references.  He knows he could sue for slander, but again, he cannot afford legal representation, so he just deals with it.

A small video game company comes up with an awesome new game idea.  Partway through public beta testing, a major game company files a lawsuit against them for patent infringement.  The lead designer knows the element in question has been used before, and that it was in a game much older than the large company's patent, but he cannot recall what that game was.  Settling out of court would destroy the company, essentially turning it into a slave of the larger company, so they opt to hire a lawyer.  When the lead designer still cannot remember the name of the game that used the element in question, the judge rules that the small company infringed on the larger company's patent.  Ultimately, the legal costs cause the small company to go bankrupt.


These three stories have several things in common.  The first is that the rich prey on the poor.  In the first story, the landlord uses the legal system to rob the tenant.  In the second, the employer sends a message to its employees, that retribution will be served for reporting labor law violations.  In the third, the big company destroys potential competition using a patent that is not technically valid.  The second thing they have in common is that none of the defending parties have adequate legal representation.  The first two have no representation, and the third does not have sufficient legal representation to do the necessary research to find the prior art that would invalidate the patent.  The third thing they have in common is that the defending parties are all assumed to be guilty unless they can prove their own innocence.  In short, justice is not met, fair legal representation is not available, and the principle of innocence until guilt is proven is violated.

In criminal trials, the U.S. Constitution mandates a legal right to legal council for the defendant.  U.S. criminal courts provide court appointed lawyers for defendants that cannot afford to pay for their own.  This is protected as a legal right.  This right is not extended to civil law though.  This is a problem.  In the above three situations, sufficient legal council was a necessary part of a just outcome, and without that, justice was not served.  In the first, a lawyer might have been able to gain access to the landlords financial records to search for evidence that the rent was paid.  In the second, the lack of legal council was the pivotal factor that ultimately prevented the victim from even pursuing the issue.  In the third, better legal council might have been able to find the prior art that the lead designer could not.  Even in civil cases, fair legal representation is necessary to ensure justice, but in the U.S., only criminal defendants are provided with legal representation.

U.S. law does not actually mandate the idea of innocence until guilt is proven.  Taken together, several Constitutional amendments are interpreted to mean that this principle should be followed, but this really comes down to ambiguous phrases like "fair trial."  Further, these amendments apply only to criminal cases, not to civil cases.  This is also a problem.  Many civil cases place the burden of proof on the defendant.  In other words, the defendant is assumed guilty unless she can prove innocence.  Typically this is a matter of convenience, and it has nothing to do with justice.  It is more convenient for a defendant to produce proof of payment than it is for a prosecutor to prove that payment was not rendered.  It is more convenient to ask the defendant to provide proof of prior art or proof that an idea is common knowledge or otherwise not novel or unique than it is for the prosecutor to prove that no one has ever had the idea before or that the idea is particularly ingenious.  The fact, however, is that doing these things places the burden of proof on the defendant, making the defendant legally guilty unless she can provide proof that she is not.  Not only is this common in civil cases, it is a problem in a majority of civil cases involving wealthy prosecutors suing poor defendants, who cannot afford legal representation.

In the recent past, these two things have been established all over the world as fundamental human rights.  It is widely recognized that trying someone without adequate representation is unfair and morally wrong.  Likewise, it is also widely recognized that the accuser bears the burden of proof, not the accused.  In fact, this was well understood even in some ancient cultures, where an accuser could be put to death, if proof of the accusation could not be established.


The fact is that there is little difference between criminal and civil law.  Both are intended to prevent or mitigate harm.  The only difference is classification and penalty.  In criminal law, the state acts against the suspect.  The suspect is judged by a jury based on codified legal standards.  If the suspect is found guilty, a penalty is selected based on a set of codified standards.  The punishments all restrict the freedom of the convict.  In civil law, an individual or organization acts against the suspect.  The suspect is judged by a judge based on personal opinion and legal precedent.  If the suspect is found guilty, the judge determines a penalty based on the request of the prosecutor and the cost of the damage.  The penalties typically take the form of fines paid to the state and remunerations given to the prosecutor.  The actions prompting a lawsuit can be nearly identical in many cases, with only minor differences.  For example, if you accuse me of stealing money from your pocket, I will go to criminal court.  If I live in your apartment building, and you accuse me of not paying my rent, I will go to civil court, despite the fact that the harm caused may be identical.  Both cases amount to theft.  The circumstances of the theft are different, and this is used as justification to provide counsel for one and not the other and to assume initial innocence in one and initial guilt in the other.  The differences between criminal and civil cases do not justify refusing to provide fair counsel or assuming initial guilt.

Civil law needs two things desperately: Fair representation and innocence until guilt is proven.  These two things are essential parts of a fair justice system, and without them, justice cannot be served, regardless of whether it is criminal or civil court.

Her Choice

This is about domestic abuse, but it is also about economic abuse.  "It was her choice," is a common phrase applied to domestic violence victims.  "She chose to stay with him," and "After last time, what did she expect?" are also common.  If you seriously thought that she got up one morning and said to herself, "I think I want to get beat up by my boyfriend," you are an idiot.  Yes, her choices might have lead to the situation.  This does not mean that she knew it would turn out this way.  In fact, every relationship is a risk.  It might last for a lifetime, but it might end with being dumped in an especially cruel manner.  It might end with some "Community Property" law that results in one party walking away with far more than he or she put into the relationship.  Every relationship carries risk.  This does not make it fault of the victim when that risk is realized.  Violence in a relationship is never appropriate, and it is never the fault of the victim.  Maybe she chose the relationship, but she did not choose the abuse, no matter how many time it happens.

The is a problem with rape as well.  Even judges, who should know better, frequently assume that the woman was "asking for it."  I can agree that she should have dressed more modestly, but that should have no bearing on the result of the case.  The rapist is the one who committed rape, not the victim.  The rapist is the one at fault for the crime, not the victim.  The victim could have been walking around town naked, and the crime would still be the rapists fault (though, indecent exposure laws do apply here, but they do not apply to the rape case).  How the woman dressed or acted has no bearing on whether rape is a crime or not.  If she did not consent, nothing else about her behavior and dress matters.

Victim blaming is a major problem in the U.S., especially with regards to domestic violence and rape.  Let me make it very plain what victim blaming is: Victim blaming is claiming that the behavior of the victim justified the crime.  Is dressing in skanky clothing really such an awful crime that it justifies the emotional harm and tearing away of personal freedom associated with rape?  Further, does wearing immodest clothing exempt a person from the legal right to representation, trial by a jury of peers, and freedom from cruel and unusual punishment?  Likewise, does making a error in judgment of the character of a person justify physical and emotional abuse, again, without legal representation and the rest of due process?  Even if it was the victims fault, vigilantism at this level is illegal, regardless of the supposed crime committed by the victim.  The fact is, in neither case has the victim broken the law, and in both, the abuser has.  Legally, it makes no difference whether the victim somehow "asked for it."  The behavior of the abuser was illegal.  Rape and domestic violence are both wrong, regardless of the situation.  Any person committing these crimes is a threat to society, and they should be treated as such.  When individuals or courts accept arguments about the victim "asking for it," they reinforce the bad behavior of the criminal.  This makes the abuser a bigger threat to society.  Victim blaming only makes the situation worse, and it punishes the person who deserves it the least.

Now, this also applies to economic abuse.  When I have discussed economic abuse with other conservatives, the most common reaction I get is, "Well, the employees agreed to those conditions, so there must be nothing wrong with it."  This is seriously wrong.  This is equivalent to saying that the abused woman agreed to the abuse by sticking around, so the abuser is not doing anything wrong.  Claiming that paying minimum wage is ethical, even though no one can survive on it, because the employees agreed to it is just another face of victim blaming.  This applies equally to those who are unemployed because they cannot find a job, or who are in poverty because they are not paid enough by their current job.  In case you are rich and have never had to find a job all on your own, giving up a job to look for another is not an option when you do not have any money, and many poor people work 40 hours a week at minimum wage (and statistically, they are working harder at their job than you have ever had to work in your entire life).  Most poor people do not have time to find a new job, when they already have one.

The point here is that being victimized is not the fault of the victim.  When another person chooses to act violently or unfairly, that person is the abuser, not the victim.  The fault of abuse belongs entirely to the abuser.  A victim that is forced or otherwise coerced into an abusive situation does not bear any fault for the abuse.  Our legal system is about protecting the innocent.  A rapist, a wife beater, and an unfair employer all harm the innocent.  We don't even bother protecting against the last one, but rapists and domestic abusers who are allowed to remain free frequently cause additional harm.  It does not matter how the victim was dressed, and in domestic abuse cases, it frequently does not even matter of the victim abandons the relationship.  Blaming the victim never helps protect society from additional harm.  Instead it makes the blamer look incompetent, it does further harm to the victim, and it reinforces the bad behavior in the abuser.