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Roy Moore And Standards Of Proof

Gavel And Scales Of Judtice

In the wake of the charges against Roy Moore that now amount to nine women coming forward to say that he made inappropriate or unwanted advances, some of which clearly amount to the level of sexual assault, a debate of sorts has arisen in some quarters regarding how claims made by women about accusations of inappropriate conduct in the past. To some extent, we’ve also seen this argument raised in some quarters in response to similar charges that have been made in the wake of the movement spawned by the social media hashtag #MeToo against people such as Harvey WeinsteinKevin Spacey, filmmaker Bruce Ratner and George Takei, along with politicians such as Minnesota Senator Al Frankenformer President George H.W. Bush, and at least two as-yet-unnamed Members of Congress. Generally speaking, the argument boils down to the idea that we shouldn’t “rush to judgment” regarding such charges because people are “innocent until proven guilty.” In the case of many of Roy Moore’s defenders, this is often accompanied by an argument that we should comply with the “Rule Of Law” and withhold judgment until the matter is ruled upon by a court of law. These arguments involve a fundamental misunderstanding of standards of proof, and how they ought to apply outside of the courtroom.

Strictly speaking, the concept of “innocent until proven guilty” only applies in a criminal case in a court of law. Due to the passage of time, these matters are never going to see the inside of a criminal courtroom due to the fact that the applicable statute(s) of limitation expired long ago. As this article from Al.com explains, the applicable statute of limitations for the charges that could have been brought against Moore at the time the offenses alleged were committed was three years. This means that the statute of limitations for even the most recent alleged assault would have expired in the early 1980s at the latest. The article goes on to explain that Alabama law was changed to provide that the statute of limitations with respect to sexual offenses against a victim who was under 16 years old, but that change only applied to offenses committed after January 7, 1985, nearly a decade after the offenses that Moore could have conceivably been charged with. Therefore, there could be no criminal charges against Moore and thus no criminal trial

These charges are also unlikely to see the inside of a civil courtroom since any civil claims these women may have against Moore would similarly be time-barred. As is the case in most states, the statute of limitation for a civil claim of assault or some similar charge is two years from the date of the incident. Like most states, Alabama also provides that civil statutes of limitation do not start running for claims that occurred when a Plaintiff was a minor until they reach a certain age. In Alabama, that age is 19, meaning that any civil claim would have had to have been brought against Moore no later than approximately some point in the mid-1980s. It’s also worth noting that in a civil case the standard of proof is not “innocent until proven guilty beyond a reasonable doubt,” it is whether one party’s claims are more likely to be true than not true, or what is legally referred to as a preponderance of the evidence. This is a much lower threshold of proof than what is required in a criminal trial.

The only way that could change would be if Moore were to sue one or all of them or the corresponding media outlets that reported on their claims, for defamation, libel, or slander. That would be very unwise on his part, though, because it would open him up to depositions and other forms of discovery that would allow defense attorneys to ask wide-ranging questions about his past and the many reports about him seeking relationships with girls under 18 when he was a man in his mid-30s. These depositions would be matters of public record and would likely be politically damaging and highly embarrassing, Additionally, any such suit would require, thanks to the Supreme Court decision in New York Times v. Sullivan, that he plead and prove that the defendants acted with “actual malice” in making and reporting on these accusations. As Sarah Palin recently found in her lawsuit against the New York Times, that is an incredibly high standard to meet. Palin’s lawsuit, of course, was dismissed before it ever went to trial because her attorneys could provide no evidence of “actual malice” on the part of the Times. Despite calls from some quarters of the conservative blogosphere, it does not appear that Palin appealed that decision, and the applicable deadlines for a Notice of Appeal have since expired.

In addition to these arguments regarding the applicable standard of proof, there’s another question that comes to mind when this defense, or some version of it, is raised by Moore’s supporters or the supporters of any other public figure who stands accused of something that happened in the past. Namely, what further proof do you want? We aren’t going to get anything beyond what we already have. Even if charges had been brought when the statutes of limitation for either criminal charges or civil claims had not expired, there likely would not by any additional evidence, and certainly nothing definitive such as DNA evidence. Then as now we would have the testimony of the women involved, plus any corroborating evidence that would be admissible such as the people who have been quoted in the various reports about Moore as saying that they were told about what happened at a time contemporaneous to the events in question. In the end, it would be a “he said she said” case even in the late 1970s, so demands for additional proof are asking for something that in all likelihood does not exist.

Given this, it is up to voters and members of the general public to reach their own conclusions based on the available evidence. Based on the accusers’ accounts themselves and the corroborating witnesses, I find the accusers to be highly credible and Moore’s denials and evasions to be not credible. Others may disagree, and that is their right, but this is the choice that voters in Alabama and Americans are left with.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Stormy Dragon says:

    For me, the big deciding factor was that when the accusations came out, Moore didn’t actually deny the accusations. He attacked their motives for bringing it up. He said they couldn’t prove he did it. He said he didn’t remember it happening. But he never actually said it didn’t happen until a week or so later.

  2. Gustopher says:

    Your first sentence stops abruptly, and has so many different verb tenses going on that it would be hard to understand in any case.

    Anyhoo, the only people who believe that Roy Moore didn’t pursue teenaged girls in his 30s are people who are either willfully ignorant, or are paid to believe this. As accusations pile up, any doubts that the accuser is lying or that there was some kind of misunderstanding (she was a very mature 14 year old, and he thought she said she was 40) evaporates.

    And the accusers are ordinary people, from across the political spectrum, who don’t appear to have an axe to grind. They are credible.

    I want to contrast these accusers with the dozens(?) of women who have made claims that Bill Clinton raped them. The Clinton accusers have been found, coached and encouraged by far right organizations, and they have lost their credibility in the process. The only well documented accusations are people like Monica Lewinsky and Gennifer Flowers, who were consensual flings. Paula Jones is semi-credible and the rest are basically not.

    The right wing saw that Clinton would mount any willing woman within 50 feet of him, and used that and insinuations to muddy the waters so people would think he was more than just a serial cheater. And there were a million other crazy accusations — how many people did they have killed? After they muddied the waters, they my have then discovered that he was a rapist, but no one can tell because they already muddied the waters to the point where fact and fiction are indistinguishable. In the end, we know that Clinton is scummy, we know that the far right makes all sorts of ridiculous claims about Vince Foster being murdered, and we know that these accusers have attached themselves to the far right — there is no reason the believe them.

    Back to Moore, none of this happened. There is no special reason to assume the accusers are lying.

  3. charon says:

    @Gustopher:

    Paula Jones is semi-credible and the rest are basically not.

    I do not know why you think that. Paula had a very right-wing husband egging her on in addition to a handler who attached to her early.

    Paula herself is obviously way below normal intelligence and easily manipulated.

    You could read the deposition she gave when she was claiming Clinton had damaged her employment, where she makes a lot of statements that contradict known facts.

  4. Scott says:

    When it comes to these kinds of things, I don’t think a legal basis of guilt or innocence is at all necessary. One, everyone needs to understand is that no one is indispensable, whether he or she is a candidate, a senator, or even a President. That is why I’ve changed my mind on Nixon (should have been charged), Clinton (should have quit), or Moore.

    I recall what Gen LeMay supposedly said when firing one of his commanders: “I don’t have time to differentiate between the guilty or the merely unfortunate.”

  5. george says:

    @Scott:

    I agree, and it should be applied to any accusation, whether drunk driving, or theft, or fraud, or murder, or influence pedaling, or buying votes or you name it.

  6. Todd says:

    Taking out the partisan aspect, this is just another example of American’s ignorance for how the law (and out constitution) work … along the same lines of so many people’s confusion about what types of speech the 1st Amendment does and doesn’t protect.

    In the case of innocent until proven guilty, we likely don’t take the concept even far enough in our courts, where it is supposed to apply. There are too many people sitting in prison (or worse, on death row) who were convicted because the jury thought they “probably” did it. In the realm of public or business life, the standard is (and should be) much, much lower. Often, it doesn’t even matter whether you did it or not, if it looks bad there are likely to be consequences … or at least that’s how it used to work. In today’s world, those on the left who have any hint of impropriety come out are probably in big trouble. Those on the right (at least for the time being) simply deny the allegations and question the motives of their accusers (and those reporting the story) …. this a direct consequence of 3 decades of undermining the credibility of the mainstream press by the right. Once you convince people that they can’t trust mainstream sources of information, it’s not all that difficult to get them to believe that up is down and red is blue.

  7. Kari Q says:

    I remember screaming at the tv during the Clarence Thomas hearing as Senator after Senator said they had a “reasonable doubt” about whether or not Anita Hill’s claims were true, and therefore they had to vote to confirm Thomas to the Supreme Court. That was exactly backwards. If you have a reasonable doubt, it means you think the charges might be true. If they might be true, that person should not be confirmed to a lifetime position on the Supreme Court.

    Similarly, if you think the charges that Moore sexually assaulted a 14 year old might be true but you aren’t sure, that man should not be voted into the Senate.

  8. Gustopher says:

    @Kari Q: In the case of Thomas, I absolutely agree with you — George H.W. Bush could have then found another nominee who hadn’t likely sexually harassed women. There were probably dozens of equally qualified candidates who were cut from the same (poor) ideological cloth.

    It would have sucked for Thomas, if he was innocent, but being a Supreme Court Justice isn’t a right. It wouldn’t, however, have sucked for voters who had elected a Republican President to nominate Supreme Court justices.

    I don’t think it is fair to the voters of Alabama to have to choose between a child molester with the politics they want, and a candidate they would never have accepted were it not for this. That said, they did nominate a freak who was kicked off the State Supreme Court twice, so… screw Alabama voters?

  9. Gustopher says:

    @charon: Paula Jones was the only Clinton accuser to be taken seriously by the mainstream media, so she passed at least that minimum bar. Clinton also paid out a six figure settlement.

    There are lots of reasons to pay out a settlement, but generally one will only do so if the claims are at the least plausible. There were special circumstances here, of course.

    Mostly I grow weary of everything going back to Bill Clinton though. He’s not that important, and what happened twenty years ago doesn’t nothing to inform how we should treat tangentially similar behavior now. Society has changed, and what was acceptable or stomachable two decades ago is unacceptable now — and that’s even assuming we knew what happened, which we don’t because clearly all a precursor to PizzaGate.

  10. grumpy realist says:

    @Todd: I especially love the people screaming at SCOTUS decisions for “being unconstitutional.”

    It’s as if they have this Platonic ideal of constitutionalism in their brains, and all SCOTUS (and lower court) decisions must be held up to the ideal and judged. They have no knowledge of law, Common Law, or the Constitution itself. Quite aggravating.

  11. Kari Q says:

    @Gustopher:

    While I understand your point about Alabama voters, but I disagree. If they can’t vote for Jones, that’s fine. Write in a name, vote for a third party if that’s possible, or stay home and don’t vote. But don’t vote for the man who you think may have sexually assaulted a minor.

  12. gVOR08 says:

    @grumpy realist:
    Our finest news source has this covered.
    https://www.theonion.com/area-man-passionate-defender-of-what-he-imagines-consti-1819571149
    This is why I’ve often made reference to “the bright shiny Constitution in their heads as opposed to the one at the National Archives”.

  13. Just 'nutha ig'nint cracker says:

    @Kari Q: While I agree with your conclusion, having a reasonable doubt means that you are able to see circumstances where the accusation may be false and you no longer have an obligation to believe it true.

  14. OzarkHillbilly says:

    We all judge people every day, and we rarely use the “beyond a reasonable doubt” standard. If somebody comes across as creepy we excise them from our lives or at the very least are never alone with them. Would anyone here, having heard what we have heard, leave their teenaged daughter/granddaughter alone with him?

    Idon’t think so.

  15. dmichael says:

    For those who really wish to revisit issues regarding Bill Clinton and Clarence Thomas, I recommend reading “The Death of American Virtue – Clinton v. Starr” by Ken Gormley and “Strange Justice” by Jane Meyer. Both are still in print. Spoiler Alert: Clinton was a jerk but both he and Hillary were the subject of years of right-wing vicious propaganda. Clarence Thomas loved his porno and sexually harassed Anita Hill along with other women who were his subordinates. I also don’t see where any of this is relevant to Roy Moore. He is merely yet another right wing nut job hypocrite.

  16. Kari Q says:

    @dmichael:

    I brought up Thomas in relation to the topic of the post: standard of proof. Reasonable doubt is a good standard in criminal court. Voting someone into a powerful position, however, a lower standard of proof is all that’s required to decide they are not suited for the job.

  17. Bob The Arqubusier says:

    Let me simplify the position being posited here:

    We have differing standards for people based on whether or not we like them.

    During the last campaign, every time Hillary’s secret email server was brought up, there were repeated demands to know “what laws were broken — be precise,” with the implication that unless a specific law could be cited, Hillary’s grossly negligent breach of national security was not to be discussed.

    Anthony Weiner was caught out, fair and square, but given another chance — which he blew, even worse than the first time.

    In Moore’s case, there are several unseemly allegations that don’t cross the line into illegal. There’s one that would be illegal, but it’s well past the statute of limitations AND unlikely ever to be substantiated.

    On the other hand, there’s Al Franken who was literally caught on film sexually assaulting a sleeping woman, who says that he also sexually assaulted her several times during the tour. And Franken has kinda sorta admitted that.

    On the Bill Clinton/Monica Lewinsky thing, it seems incredibly convenient to omit that that affair came to light as part of the trial over Clinton’s sexually harassing of Paula Jones. And in that case, let’s not lose focus of two things: 1) Clinton was willing to commit perjury in his defense of that case, and 2) he paid a substantial settlement AND forfeited his law license to end it. That is not a legally-binding admission of wrongdoing, but — as noted above — we need not hold ourselves to such standards.

    So, why not hold Moore to the same standard as Bill Clinton? Because you don’t like Moore.

    And let’s not forget Creepy Joe Biden.

    As someone who has little interest in Moore, I don’t feel particularly inclined to defend him. And in the big picture, if he loses over this, but in the process we also get rid of Al Franken, finish off Joe Biden, drive the final nail in the political coffins of the Clintons, and make a whole bunch of Clinton apologists to finally own up to their decades of defending the indefensible, that’s a pretty small price to pay.

    Even if Moore is innocent (which, legally, he is, just like Hillary).

  18. DrDaveT says:

    @Bob The Arqubusier:

    So, why not hold Moore to the same standard as Bill Clinton?

    The long answer is (demonstrably) too complicated for you.

    A sufficient short answer is “Because Clinton did not run on a platform consisting entirely of I alone stand for morality.”