We can believe survivors and presume innocence

March 28, 2019

Don Lash argues that competent investigations into sexual assault are capable of following both of these important principles.

THE ISO was less than the sum of its parts. Comrades in the ISO did fantastic work in labor and social justice struggles and helped to build important institutions distinct from yet linked to the ISO, like Haymarket Books, WeAreMany.org and the International Socialist Review.

Yet the ISO itself, as an organization, seemed not to register any discernible progress politically. Its version of Leninist democratic centralism seemed shopworn, and its branch routines seemed stale. Neither seemed terribly relevant to the context in which members did their organizing.

There was, moreover, a top-down leadership style that mocked its professed allegiance to the adjective in democratic centralism. We now know there were hidden horrors that most of us were unaware of, and others were only vaguely aware of.

At this point, it’s clear that the ISO as it existed is now gone, and there are discussions about what can and can’t be salvaged from it.

But aside from that, there needs to be a reckoning: a forensic examination of what happened in 2013, what other horrors and abuses may have been covered up, and how members of the leadership were able to maintain a culture of silence.

Even if nothing of the ISO is to survive, comrades who have spent years or decades within the organization deserve to know what was happening, and what destroyed the organization they had contributed to.

Those who have left or will leave deserve not to have a cloud hanging over their association with the ISO because of a mysterious mess of undisclosed secrets. If there is an entity built to replace what’s worth salvaging from the old ISO, the larger left needs to know that it does not contain any toxic elements of what went before.

We should remember that the world is full of other organizations and entities that have tolerated and encouraged rape culture, shielded and promoted rapists and abusers, bullied less powerful individuals within their ranks and maintained massive cover-ups. Even on the left, the ISO is far from the only organization to be rocked by such a scandal.

So there is an opportunity to demonstrate how a group of comrades can purge itself of corrupt and bankrupt leadership, expose the misdeeds, mistakes and compromises, and still maintain a measure of continuity with what they have been working for.

Incompetent, opportunistic and reckless

This accounting is related to, but distinct from, a restorative justice approach to allow healing and reconciliation, and should precede any attempt at restorative justice.

I make the distinction because my sense is that because of the spectacular failure of the 2013 disciplinary process that has come to light, there has been a loss of confidence in the ability to undertake some kind of fact-finding process.

The Steering Committee members who manipulated and bullied the members participating in the process did so by making a fetish of due process, which some have characterized as “bourgeois legalism.” This is actually giving it too much credit.

The Steering Committee members who dictated due process standards to the 2013 Disciplinary and Appeals committees were incompetent, opportunistic and reckless.

Incompetent in that they spouted rules of evidence and procedure they didn’t really understand, in a context in which they were unnecessary or unduly restrictive.

Concepts like the inadmissibility of hearsay evidence, the right to confront all witnesses and the need to prove guilt beyond reasonable doubt all developed in the context of a criminal trial, in order to restrain the power of the state to deprive someone of their liberty. The ISO never had such power.

The only power the ISO had was to tell one of its members that it chose not to have him associated with its political project, and that it no longer chose to allow him to exercise power at any level over members and contacts.

There was no reason for the Disciplinary committee not to make a determination that it found the written statement of the complainant more credible than the testimony of the respondent, and the former member who revealed the process gave a well-reasoned rationale for doing so.

Similarly, the statement that the Disciplinary committee could not make findings about any breach of the code of conduct other than the core allegation of rape was absurd and arbitrary.

Even more absurd was the assertion that a hearing had not been held, culminating in a forced admission by the people who had conducted the hearing that they had not in fact conducted a hearing. It is still unclear what the leaders thought a hearing consisted of, but by any measure appropriate to the context, the respondent had received a hearing, and had been given the opportunity to be heard and to advance his arguments.

Beyond their ignorance of what due process actually means, the leaders were opportunistic in that it served their interest in protecting a younger comrade, in whom they no doubt recognized the hubris they had come to see as indistinguishable from leadership potential.

Placing an incorrect definition on the term “preponderance of evidence,” claiming that written statements were not evidence, and falsely denying that the respondent had received a hearing were all consistent with the outcomes they desired: bullying the Disciplinary committee into declaring a “mistrial” and then essentially directing a verdict of unsubstantiated from the Appeals committee.

Finally, they were reckless in disregarding the risk to the organization and the members participating in the process.

Some, like the former member who later revealed the process, were driven out by their own disgust at how the process was manipulated. Others maintained an uneasy silence because of dictates about confidentiality, meaning that today, they struggle with feelings of complicity over having been silent regarding a cover-up designed to protect a rapist, supposedly justified by a concern for the privacy of his victim. They are damaged as well.

All in all, the seemingly inevitable exposure of the cover-up has effectively destroyed the organization the leaders purported to serve.

Believe survivors AND presume innocence

While we don’t yet know everything that occurred in 2013, it’s clear that the members who sat on the Disciplinary and Appeals committees were fully prepared to do the jobs they had taken on. In the case of the Disciplinary committee, despite a lack of clear, simple guidance as to the process, they actually did the job, only to be undermined and manipulated by the Steering Committee.

So rather than conclude that a forensic examination is discredited because the 2013 process proved that investigative measures are ineffective and don’t support real justice, we should conclude that we have among us individuals capable of completing the necessary fact-finding, provided they are given fair, relatively straightforward and clear guidelines by people not wedded to a particular outcome.

We can also protect the confidentiality of anyone who feels vulnerable to retaliation, intimidation or worse without giving anyone else a reasonable basis to complain about unfairness.

Perhaps most troubling about the 2013 process was the proposition put forth by some Steering Committee members that the principle of believing survivors is not consistent with the presumption of innocence. These SC members appear to have been successful in creating some confusion on this point among the membership of the Disciplinary and Appeals committees. This needs to be addressed before any type of forensic examination begins.

Each of us is entitled to the presumption of innocence until the point that evidence that we are not innocent is deemed more credible than the evidence and arguments we produce to the contrary. Especially in a forum where the standard of proof is a preponderance of the evidence, the statement or testimony of a complainant, if it is credible, may well be enough to overcome the presumption.

Believing survivors is not a rule of evidence. It is a political recognition that because sexist normative assumptions are pervasive in our society, the testimony of women regarding sexual harassment and violence are not credited if their behavior does not conform in every respect to those assumptions.

Applying that political recognition in an investigative context means adopting operating principles that caution the fact-finder to reject inferences based on how women are “supposed” to act before or after sexual harassment or violence.

Rejecting those inferences, and shutting down questioning and arguments intended to advance those inferences, does not deny any accused individual of the presumption of innocence. It simply says that the complainant’s testimony will be evaluated on its merits and not on the basis of sexist prejudices and unwarranted assumptions.

By the account of one SC member, the argument that believing survivors is inconsistent with the presumption of innocence came in its most dramatic form from another SC member, who scribbled an accusation of rape against a comrade on a paper, signed his name and proclaimed that this would be sufficient to prove guilt in future cases if the findings of the Disciplinary Committee were not overturned.

The stunt was as ridiculous as it was obnoxious. What he produced was a bald accusation, not evidence, and would not overcome the presumption of innocence in any rational proceeding. The statement of the complainant that the Disciplinary Committee considered, on the other hand, specified the location, circumstances and timing of the assault and seems to have had other indicia of reliability.

What is important about this is that we need to refute the false argument that by adopting the principle of believing survivors we are somehow agreeing to abandon the presumption of innocence in cases of sexual violence or harassment, or to affording a lesser standard of due process in this category of cases than we do in others. The principle of believing survivors demands no such compromise.

My hope is that, before making any final decisions about what ultimately happens with the ISO, we designate an inclusive, representative fact-finding body to organize all the documentation that has come out or will come out, solicit testimony and statements, and develop and summarize findings.

Such an investigative body should have the benefit of clear guidelines as to acceptable, appropriate investigative measures and practices and should have ongoing assistance in applying the guidelines, from individuals who have no authority to participate in developing the findings. With appropriate attention to confidentiality, the findings should be published to the membership and the wider audience on the left.

Once in possession of the findings, the membership will be in a better position to assess what happened in the past and what it means for the future. Next steps, if any, such as reformation or a restorative justice process can then be undertaken with the assurance that there has been full disclosure and a factual framework for accountability.