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“Are we allowed to sing? I imagine that at times it might improve the tone of the debate.”
–Canadian opposition leader Jack Layton on the House of Commons floor two months ago.
Layton, the head of the progressive New Democratic Party, died of cancer this morning at the age of 61. As I noted on this site at the time, Layton’s NDP won astonishing gains in this spring’s Canadian elections, transforming the country’s political landscape while electing six – yes, six – activist undergraduate students to the country’s parliament.
Charlie Webster, the state chair of the Maine Republican party, has produced documents claiming to show that over two hundred of the state’s college students have committed fraud by voting in Maine while paying out-of-state tuition.
This is a lie. It’s an evil lie. It’s just … jeez.
Here’s the deal. If you move to Maine for college, you have to pay out-of-state tution your first year. And your second. And your third. And your fourth. And your fifth. You have to pay out-of-state tuition forever, in fact, until you demonstrate that you have “established a Maine domicile for other than educational purposes.”
And as long as you’re attending college full-time, you’ll be “presumed to be in Maine for educational purposes and not to establish a domicile.” Again: Forever.
You can arrive in Maine fresh out of high school, move into your own place, live there 365 days a year. Work there, spend summers there, get married there. Finish your undergraduate degree, go on to grad school. But as long as you’re still a student, you’re “presumed to be in Maine for educational purposes and not to establish a domicile,” and the burden of proof is on you to show otherwise. (“No one factor can be used to establish domicile,” by the way. “All factors and circumstances must be considered on a case-by-case basis.”)
Paying out-of-state tuition isn’t evidence that you don’t live in Maine, in other words. It’s not evidence of anything at all. Out-of-state tuition is a revenue stream for the university and the state, and as such, it’s designed to put every possible burden on the student who’s looking to get out from under it.
Which brings us back to Charlie Webster.
What Webster is doing here is deploying a state regulation designed to deprive Maine’s college students of their money as a mechanism to deprive them of their votes. There’s no other way to describe it. Take their money, take their votes. Justice, fairness, and the Supreme Court of the United States be damned.
It’s really that simple.
A few months ago I was out at a fancy ice cream place with my eight-year-old daughter. She got chocolate chip, and on a lark I asked for a taste of tarragon and pink peppercorn. It was delicious, and I wound up buying a cup.
I offered her a taste. She declined. I thought she’d really like it, and I thought she’d be chuffed to have tried such a weird flavor, so I offered again. She declined again. “Just one taste,” I said.
“No,” she said. “My body, my choice.”
I’ve used that phrase with her and her sister since they were toddlers, trying to drum it into them. Don’t want to hug your grandma? Don’t want your sister tickling you? Don’t want to wear the mask from your Halloween costume when you trick-or-treat? Your body, your choice.
But this was the first time she’d used it on me. She was right. And I apologized.
Her body, her choice. Period.
The Department of Education recently issued new guidelines on campus policies on sexual assault, including a directive that judicial bodies investigating sexual assault allegations employ the “preponderance of the evidence” standard in their deliberations.
“Preponderance of the evidence” is the standard commonly used in resolving civil cases — lawsuits — in the United States. It basically means that the question at hand will be resolved by a determination of which party’s version of events is more likely to be true. (“Beyond a reasonable doubt” is the standard of guilt used in criminal cases in the US, and there are other standards used in other circumstances, too.)
I don’t yet have an opinion on the DOE’s directive, and I think it’s an important question, so I’ve been reading up on it. And I just noticed something really weird.
As I noted above, “preponderance of the evidence” basically means that the judicial body will determine which side of the case, based on the evidence, is more likely to be in the right. If they come down on the side of the complainant, even hesitantly, the defendant is found guilty. It makes no difference, in other words, whether they’re completely convinced or have major doubts — whichever side they think is more likely to be in the right is the side that wins.
A common way of explaining this is to say that preponderance of the evidence means that if even 51% of the evidence presented supports one party, that party gets the decision. It’s an arbitrary number, of course — there’s nothing magical about 51% as opposed to 55% or 50.623% — but it gets the concept across. Whoever has the stronger evidence wins. Period.
So you see the 51% thing a lot. It’s all over the place — the number 51 appears in about a quarter of all web hits for the phrase “preponderance of the evidence.” But occasionally you see other numbers, like 50.1%, or even 50.000001%. And here’s where it gets interesting.
The number 50.1 appears only rarely in Google hits on “preponderance of the evidence” — a few times per thousand. But in pages in which the word “rape” or one of its variants appear as well, 50.1 shows up almost three times as often. You see a similar bump for 50.01, 50.001, etc.
Those numbers aren’t that big. It doesn’t seem to be a complete glitch — the numbers go in the opposite direction when you add “civil law” to the search instead of “rape,” for instance — but the magnitude isn’t huge.
Check out what happens when you substitute “campus sexual assault” for rape, though. The number 50.01 shows up three times as often as you’d expect, and 50.0001 shows up nearly seven times as often. Plug in “Title IX,” the campus sex-discrimination law on which the ruling was based, and 50.0001 shows up more than fifteen times as often as it should.
What does all this mean?
Well, one thing it doesn’t mean is that a campus assault case in which 50.0001% of the evidence supports the complainant is going to result in a conviction. The very concept of “50.0001% of the evidence” is meaningless — the idea that you could quantify the evidence in a sexual assault case to a precision of two parts in a million is absurd.
And that, of course, is why “50.0001%” is a figure of speech that you hardly ever see in discussions of this legal standard. It’s not coherent. It’s not meaningful. It’s not illuminating of the issues at stake.
And that is precisely why it keeps coming up in discussions of Title IX and campus sexual assault. Because “preponderance of the evidence means the side with 50.0001% of the evidence wins” is a lot scarier than “preponderance of the evidence means that the relevant body looks at all the evidence and rules for the party it thinks has the stronger case.”
Wednesday Update | A representative of the Swedish prosecution team is forcefully rebutting the Assange defense’s definition of consent in today’s hearing. Click here for ongoing coverage.
• • •
Wikileaks founder Julian Assange is in a London court today, contesting an order that he be extradited to Sweden to face allegations that he raped two women there last year.
Assange’s attorneys are contending that the extradition order is invalid because the actions alleged are not criminal under English law. In doing so, they appear to be conceding the sincerity of at least some of those allegations. “Nothing I say,” Assange lawyer Ben Emmerson told the court this morning, “should be taken as denigrating the complainants” or to “trivialize their experience.” His arguments should not be construed as disputing that they honestly consider Assange’s behavior “disrespectful” or “disturbing,” he said, or that Assange “push[ed] at the boundaries of what they felt comfortable with.”
Emmerson went on to provide accounts of the two encounters in question which granted — for the purposes of today’s hearing — the validity of Assange’s accusers’ central claims. He described Assange as penetrating one woman while she slept without a condom, in defiance of her previously expressed wishes, before arguing that because she subsequently “consented to … continuation” of the act of intercourse, the incident as a whole must be taken as consensual.
In the other incident, in which Assange is alleged to have held a woman down against her will during a sexual encounter, Emmerson provided this summary of the allegations: “[The complainant] was lying on her back and Assange was on top of her … [she] felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom … she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration … [she] tried several times to reach for a condom, which Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without using a condom. [She] says that she felt about to cry since she was held down and could not reach a condom and felt this could end badly.”
As in the case of the first incident, Emmerson argues that subsequent consent renders the entire encounter consensual, and legal.
While Emmerson was not vouching for the accuracy of these accounts but merely offering them as summaries of the charges against his client, his introductory statement, excerpted above, was striking in its tone and approach:
“Nothing I say should be taken as denigrating the complainants, the genuineness of their feelings of regret, to trivialise their experience or to challenge whether they felt Assange’s conduct was disrespectful, discourteous, disturbing or even pushing at the boundaries of what they felt comfortable with.”
At a minimum, such language would seem to preclude two of the defenses that have previously been offered by Assange defenders — that the complainants were merely spurned lovers or government plants concocting fantastical stories for their own purposes.
• • •
Selected previous Assange coverage:
- Guilt, Innocence, and Justice in the Julian Assange Case
- Assange Accuser’s Only Interview Mostly Ignored By US/UK Media
- First Thoughts on Naomi Wolf’s BBC Interview
- Why Naming Names is a Problem Even When the Names Have Been Named
- Naomi Wolf Still Peddling Falsehoods About Assange Assault Case
Note | This post has been edited to further clarify the distinction between Emmerson’s own descriptions of Assange’s behavior and his summaries of the allegations against his client. The core arguments of the piece remain unchanged.
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