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“Believe Survivors” vs. “Due Process”

[CW: discussions of sexual assault and questioning survivors’ veracity]

By Andy Piltser-Cowan and Jade Piltser-Cowan

This is a topic that we have been wanting to write on for a while.  It’s something Andy has grappled with over the years as an attorney of conscience whose job is sometimes to represent the accused, and other times the victim, and of course is also a member of society free to have his own opinions when not representing a client.

What do we mean when we say “believe women” or “believe survivors?”  Some folks say, “when you report a robbery, or a theft, or some other crime, nobody starts by asking how you fought back, what you were wearing, or whether you made it up.”  This is mostly true,  although if the case goes to trial, a defense attorney might ask any one or more of those things to try to poke holes.  
On the other hand, imagine that a member of the community comes to you and says they were mugged on the street last night, at knife-point, and relieved of their cell phone.  They have no injuries, because they yielded the phone when the attacker displayed a knife.  They are shaken up, and not sure what to do, but they can identify the assailant as a man they met at a cocktail party earlier in the night.  They had a few drinks at the party.  Our first reaction to this person is not “did you fight back?” Or “are you sure you remembered it right?” or “was it really robbery if they didn’t hurt you?  Did they actually pull the knife, or just say they had a knife?”  Or “maybe you just had a lot to drink and forgot what you did with your phone.”
The police identify the assailant based on the description.  He is carrying a knife and the victim’s phone.  It’s a 4″ folding knife, where the victim described a 6″ straight knife.  The victim described him as having a celtic knot tattoo on his neck, but it’s actually a Celtics shamrock.  When questioned, he says that he carries the knife for work, he found the phone on the street, and he was trying to get it back to its rightful owner as soon as he could get it charged up to turn it on and identify them.  He’s had a busy day, he says, and just didn’t have the chance.
Now I can tell you with near-absolute certainty, as a criminal attorney for ten years, that any police officer in Massachusetts would make an arrest based on the strength of that evidence.  They would not shrug and say “it’s a he said/she said.”  A judge would deny a motion to dismiss.  The case would go to trial, unless the defendant entered a guilty plea.  He would have an absolute right to say his piece before a jury of his peers, who would decide if he was guilty or not.  Would you consider this case difficult to resolve?  Would you question the victim’s veracity after learning the discrepancies in the story and the suspect’s excuse?  Most of us would not.  
“Believe survivors,” at least to us, does not mean that every allegation must be taken as categorically true and beyond question, or that an accused may not have the chance to say their piece and have it taken into account.  It means that somebody who comes to the community for support after being sexually assaulted should get at least the same baseline credence as the person above, who was mugged.  It’s not a presumption of guilt or a lack of openness to hear the other side, it’s a baseline willingness to treat somebody who has been sexually assaulted with the same dignity and respect as somebody who has suffered any other violation of their person or property.

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