I have been following the news about the current US administration reversing the Obama administration's policies on campus sexual assault.

The two opposing positions can be summed as following:

  • (A) The Obama administration's policies are necessary given the nature of sexual assault crimes and the fact that previous policies failed to protect women and to sufficiently punish (or failed to punish at all) guilty perpetrators.

  • (B) The Obama administrations policies overreach, and fail to provide the accused with their constitutional right to due process.

I personally agree with (A), however the fact that some innocents have been harmed by universities interpretation of the Obama directives bothers me, especially after reading about this case, and this case.

In particular, the Obama admins directives on enforcement of title IX with regards to camps assault require the lowest possible burden of proof, a “preponderance of evidence”—often described as just over a 50 percent likelihood of guilt, as opposed to criminal courts requirement of proof “beyond a reasonable doubt”.

After thinking about the topic, I feel that the debate boils down to the following question:

  • In most cases, the rule should be "innocent until proven guilty", however when universities deal with sexual assault cases, given that the victims belong to an oppressed minority while the accused belong to a privileged group, and given that victims of sexual assault suffer harm that continues and extends beyond the initial crime committed, and thus require additional protective measures, is it acceptable to operate instead on the rule of "guilty until proven innocent"?

So my question is then:

From an ethics and philosophy of law point of view, are there ever any situations where "guilty until proven innocent" is justified? And if so, does protecting members of an oppressed minority constitute such a situation? From a Kantian perspective, the answer would be no, but is the Kantian approach the right one in this case?

This question has been put on hold as opinion based. Let me clarify: I am not asking anyone how they feel about the question "is it OK to assume guilt until proven innocent" - I am asking for what philosophers who have worked on questions of law, questions of rights, and questions of minorities have to say on the topic.

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    "...victims belong to an oppressed minority while the accused belong to a privileged group" - Oppressed, perhaps. Minority, not true. Especially on campuses. Sep 13, 2017 at 17:29
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    I think the bigger issue here is that civil cases require only the "preponderance of evidence", even when the harm to the parties is disproportionate. Using civil cases to usurp someone's right to a fair trial and finding "guilt beyond a reasonable doubt" seems wrong to me. I don't know if the Supreme Court has ruled on such an issue, however.
    – user935
    Sep 13, 2017 at 18:48
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    This seems overbroad to me, one can come up with a plausible ethical position which would produce any desired answer in this case (yes, no, yes/no with additional caveats). On what basis are we to judge Kantian position as right or wrong (as opposed to judging something according to his position)? Are you looking for a position under which the answer is yes? You pretty much sketch a pragmatic case for it under utilitarianism in your answer, feminist ethics would be another option. Legal prejudice is reflected even in law, against former convicts, sex offenders especially, non-citizens, etc.
    – Conifold
    Sep 13, 2017 at 23:35
  • Isn't this a college administrative type hearing? A "charge" is made, and there would be a hearing to decide whether to throw the student out, or suspend them? I'm trying to get straight in my mind what kind of proceeding this is.
    – Gordon
    Sep 14, 2017 at 0:20
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    @Alexander For some inexplicable reason this question is still on hold so I can't provide you with an answer summarising the issues, but you might want to look up papers by R.A Duff, Piers Rawling, Victor Tadros and Patrick Tomlin, all of whom have written on the exact topic you're interested in. The paper by Tadros particularly I think is called something like 'Re-thinking the presumption of innocence'. I will try and look it up.
    – user22791
    Sep 16, 2017 at 6:56

1 Answer 1


In order to answer this question as stated in the penultimate paragraph, we must first show how a lowering of the burden of proof to a preponderance of evidence constitutes an infringement of the presumption of innocence. Paul Roberts argues that there are three reasons for this (but I only see two and will present them as such for ease). The first is that in cases of doubt the void where evidence is lacking must be filled by a presumption. This means that in cases which require the defendant to prove innocence they must 'convince' a judge/jury which necessitates, so Roberts argues, a presumption of guilt prior to such an argument being made. The second (and third) basically both argue that because the resources of the state/official body are so much greater than those of the defendant, the burden of proof should rest with them as they are the most likely to be able to find it, any other situation would allow that the defendant were less well equipped and so amount to a presumption of some wrong-doing that would justify such otherwise unfair treatment.

I think it might also help to briefly outline the way in which philosophers of law talk about guilt and innocence as there has been some confusion in the other answers. To be guilty of an offence legally obviously means that one has done something which the law prohibits, but in order to justify that law morally, it is necessary that one has committed some moral wrong. The problem then is how to define moral wrong, separate to legal wrong, in any objective sense. The way this is done is by saying that the moral wrong (as opposed to the legal one) is that which transgresses the type of activity the law intended to avoid by its enactment. For example, the speed limit is not intended to control the speed of cars for their own sake, it is intended to avoid dangerous driving, someone driving over the speed limit but (perhaps by reason of their superior skill) doing so entirely safely will have committed a legal wrong but be morally innocent.

In the example above, the speed limit is a practical way of reducing dangerous driving, it does not interfere with the presumption of innocence, however, because there is not room for doubt (as explained above). Some laws, however, called divergent offences (after Tadros) can be argued to interfere with presumption of innocence and the example in the OP is just such a rule. So, these offences are ones where the offence is in the form "committing X without having sufficient proof of Y", here 'sufficient' proof might be only more than 50%. It is still required that the offence must be proven beyond all reasonable doubt (satisfying Roberts), but the offence itself is that of 'not possessing sufficient proof'. In some cases this have been justified;

  1. Where the intention of the law is to provide assurances. For example in workplace safety an employer could be prosecuted for failing to have checked a safety item merely on a preponderance of evidence, thus the employer might actually be innocent of 'causing harm to an employee' in the sense that they did not intend to do so (49% chance), but "The employer’s duty is not just to provide, but to ‘ensure’ that she provides, a workplace that is, as far as is reasonably practicable, safe" (Duff 'Strict Liability, Legal Presumptions, and the Presumption of Innocence').

  2. Where it would be so incumbent on the accused to have secured proof that they were morally in the right, that such proof should be easily to hand (thus reversing the second of Roberts' reasons not to shift the burden of proof). This is the argument used in sexual offences such as in the OP. If one intended to have intercourse with someone who was inebriated or even semi-concious, the reasonable efforts one could be expected to take to ensure consent had been given would be so evident that they (rather than the prosecution) would have the easier burden proving consent.

  3. Where proof of some activity p implies (without cause for rebuttal) some intent q. Here, technically the accused is being 'presumed guilty' of the offence simply by virtue of having engaged in some related activity. This is usually justified where q is difficult to prove, but p always leads to q in all circumstances. An example is murder, which necessarily requires intent to kill (or reckless lack of concern). This can be simply 'presumed' from the activity of waiving a knife at someone's throat, as it is clear that such an action might lead to their death. The accused can be 'presumed guilty' of intent without any evidence at all of their intention, simply by inference from their action.

  4. Where we might have reason to criminalise something on the grounds that it regularly causes harm, but for practical reasons we only criminalise the actual harm. In such cases the person carrying out the activity might justifiably be 'presumed guilty' of doing so recklessly and so guilty of harm with intent. This might also pertain to the example in the OP, where one might reasonably criminalise all sexual activity without clear consent, it would be impractical to do so, but it would not be unfair in those cases where harm has been caused, to presume recklessness on the part of the person who does not have ready proof of consent to hand.

To summarise;

  • Issues of legal guilt can be issues of moral guilt where one examines the intent of the law.
  • Placing a lower burden of proof of the accused can constitute a shift in the presumption of innocence because it can put the accused at an unfair disadvantage which would not be justified unless they were presumed first to be likely guilty.
  • Such shifts in presumption can be morally justified in cases where, for various reasons, the activity the law intends to prohibit is one of "doing X without possessing a preponderance of evidence of Y"

Justification therefore rests on whether a greater harm is done to society by people engaging in X without proof Y, than the burden on the individual of having to obtain Y before every X. In this we must remember that most moral justifications for the interference in personal freedoms are that doing so is necessary to secure the rights of others, so the question is essentially, could the rights of the potential victims here be protected by any other means? If they could, then the shift in presumption is not justified, if they could not, then it is.

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    As I understand, these policies apply not only when consent is disputed, but also when the accused flatly denies the encounter (it is also hard to see what "proof of consent" can be in practice). The OP rationale of "oppressed minority" vs "privileged group" overlooks that the accused may well belong to an "oppressed minority" too. Should the presumption apply only to white males then? It seems to me that reasoning behind these policies leads into moral morass that will make them politically unsustainable long term. Arguably, there is already severe backlash in the US.
    – Conifold
    Sep 20, 2017 at 19:54
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    @Conifold Yes, I don't think the 'oppressed minority' rationale works at all. I'm not aware of any principle in legal ethics which justifies shifting the burden of proof purely on the basis of minority status. The closest would be something like inciting prejudice, where the burden is on the accused to prove their language was misconstrued, but again, this is entirely to do with who would have the easier task of proof, not the social status of the accuser.
    – user22791
    Sep 21, 2017 at 6:06
  • Such cases as in the OP do satisfy a lot of the requirements for a lowering of the level of proof; they are civil cases (in theory no one party has a greater access to investigatory facilities), the punishment is not inflicted in the name of a population (just an institution) and the punishments are supposedly non-restrictive. Personally I agree that there will be a backlash, but I think the falsely accused would have a stronger case arguing that the punishment (the social stigma of being found guilty of assault) is in excess of the burden of proof used to arrive at it.
    – user22791
    Sep 21, 2017 at 6:11
  • @Conifold and Issacson The reason why I mentioned the oppressed minority angle is that one common theme in feminist defenses of the Obama policies on campus rape has been that misogynistic stereotypes about women (as untrustworthy, shrill, sluts, whores, devious, "if you weren't asking for it, why were you wearing a miniskirt?", etc...) have made it hard for women to obtain justice in rape cases, and so erring on the side of women (or what they call a "victim centric" approach) is necessary to compensate for the traditional misogynistic biases of a male dominant society. Sep 21, 2017 at 22:02
  • @Alexander I understand. A common approach to protecting minority groups in philosophy of law has been to afford them rights which reflect how their needs might be different from those of the dominant society. Rape victims not having to testify in front of the accused would be an example of this. I can see an argument that in a male dominated society it is easier for the man to present evidence, and so justify his bearing the burden of proof on the grounds Roberts outlines, but I just don't have any reference to such an argument in the literature I'm afraid.
    – user22791
    Sep 22, 2017 at 6:42

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