What Happened to the Presumption of Innocence?

Due process protections have been stripped away, evidentiary requirements reduced, and definitions expanded. For persons accused of sexual assault or domestic violence, the presumption of innocence is now little more than a faint memory from a high school civics class. Here’s why:

  • The “Education Department ‘Dear Colleague’ letter shreds the presumption of innocence.” — Hans Bader,, 2011
  • “[E]videntiary standards for proving abuse have been so relaxed that any man who stands accused is considered guilty.” — Cheryl Hanna, William and Mary Law Review, Vol. 39, 1998
  • “[I]n light of state and federal changes in pretrial practice, as well as Supreme Court precendent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial.” — Shima Baradaran, Ohio State Law Journal, Vol. 72:4. 2011

And see the SAVE sumary, How Rape Laws Remove the Presumption of Innocence.

The Violence Against Women Act reauthorization bills (S. 1925 and H.R. 4970) propose a seismic change to the current definition of sexual assault:

SEXUAL ASSAULT.–The term ‘sexual assault’ means any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent.

Defining sexual assault this way would have the effect of shifting the burden of proof to the defendant. So an innocent man falsely accused of rape would find it even harder to escape a wrongful conviction.