A few days ago the question came up, “why is it rape culture when we bring up the burden of proof?” The person remarked that we expect people making allegations anywhere else to bear the burden of proof, so why is this any different? Why is this rape culture? I hear the phrase thrown around a lot when it comes to community action about accusations of rape, harassment, or other bad behavior. People drop the term like it’s obvious what they’re talking about, but it’s actually incredibly complicated!
Let’s start by defining our terms. “Burden of proof,” for all its common use, is an incredibly ambiguous term. It’s used rhetorically, sure, but the context many people are most familiar with (at least in my corner of the world) is legal-as in “innocent until proven guilty.” I’m gonna run through both, because I think they’re both illustrative of some broader issues.
Rhetorically, the burden of proof really just means that the onus is on the party making a truth claim to present positive evidence. Put a little differently, it means that the absence of contradictory evidence is not sufficient proof something is true. Once some evidence for the truth claim is presented, the burden then shifts to critics/detractors. It’s their job to either disprove the proffered evidence or demonstrate why it was insufficient or lacking in some way. The game of ping-pong continues until both parties are satisfied or throw up their hands in disgust. Neat!
Legally, burden of proof is a little more complicated. I want to be very clear, I’m not a legal scholar, just a gal with some strong opinions, the internet, and a few years of mock trial under her belt. My knowledge is specific to the United States, so those are the definitions I’ll be working with. Within the court system the burden of proof is broken into eight levels of obligation, ranging from “reasonable suspicion” to “beyond reasonable doubt.” Each has its own uses and case law, and application even varies from court to court (or judge to judge).
So, things are getting a little more complicated, right? I consider it absurd on face to hold any kind of claims about rape or calls for community action (be it warnings, exclusion, blacklisting, etc.) to legal standards, so I won’t devote much time to it. The short version: we aren’t a court system. Trials, the presumption of innocence, the burden of proof, are all so darn important because the courts deal in stripping your rights as punishment for wrongdoing. Life, liberty, pursuit of property, all that jazz. We’re doing none of that (hopefully) as a community. Admission to munches/parties/conventions isn’t a right, and shouldn’t be treated as such. Heck, being liked isn’t a right.
What I hear implicit in criticisms that invoke the burden of proof is an appeal to Rational Thought, or the idea that we must objectively weigh all the facts presented to us and take the most logical course of action. Which is great, except that people are not particularly rational. Put a little differently, we can pretend we’re acting purely on an evaluation of the facts in front of us, but we are always making decisions with insufficient facts & they are heavily filtered through our emotions.
Brains are complicated. And all of this is fine! It’s just sort of how things are! But we need to be aware of it an act accordingly. What this means, then, is that our (dis)belief of people who tell us they have been raped is heavily colored by our emotions, ranging from empathy and identification to a fear the someday we could be accused this way, in ways we are conscious and entirely unaware of. The “burden of proof” required to convince you shifts from person to person-it’s not a static thing.
Once someone has presented evidence (namely, “X raped me,” because I’m pretty sure first hand accounts still count as evidence), they’ve met their burden of proof. “I got nerve damage in a suspension with X” isn’t met with calls for REAL EVIDENCE, “X ignored my safeword” isn’t generally met with WHERE’S THE PROOF (although it sure as fuck gets met with some derailing victim blaming), so why is “X raped me” so different? It is a person sharing their experiences and feelings, just like any of these other examples.
Knowing these things, I think people overwhelmingly say “but you bear the burden of proof” when what they actually mean is “but you bear the burden of convincing me you aren’t lying.” It doesn’t sound quite as nice and eminently rational when you put it like that, does it? And, knowing what I know about false reports (which is to say, the actual risk someone is lying) this seems like an exceedingly poor reason to poo-poo people or communities taking actions to make themselves safer.
The bottom line is that nobody bears the burden of convincing you their rape “really happened.” It is beyond noxious to think that as second or third parties we could sit back and judge the veracity of those claims, or that we should. When someone speaks about their experiences we listen. Period.