Briefly, On The Presumption Of Innocence

There are extremely graphic details of multiple sexual assaults in this post.

In 1992, Erika Davis alleges that she approached Michigan State University’s Police Department to report that Larry Nassar had drugged her, then raped her, and had filmed himself doing so. The MSUPD told her that, because she was an athlete, she needed to report the incident to the school’s Athletic Department. She explained that she had already done so and that the allegation had been internally dismissed. The MSUPD insisted that there was nothing that it could do, as it had no jurisdictional authority over the school’s Athletic Department.

Nassar was not investigated. Nassar kept his job. It would be 24 more years until Nassar was arrested. Nassar would eventually assault more than 400 more women.

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The presumption of innocence exists in the bedrock of American justice. No matter how occasionally that rule has been applied throughout this nation’s history, some of its loudest advocates not only insist upon its self-evident superiority, but weaponize its goodness as a trump card against anybody who would question some of its extremely obvious shortcomings. Those shortcomings are currently boiling over culturally.

And chief among those shortcomings is what the presumption of innocence ends up enabling and who suffers as a result of it. Whenever accusations are made, a coterie of men and women are ready to rush into the fold to insist that the accused is owed the presumption of innocence, especially in cases where evidence is lacking. There is no attempt to grapple with the grim reality of abuse – that sufficient evidence is rarely available, and that even when it is, it is often not seen as convincing. Nor is there any acknowledging that, fairly regularly, men’s reputations are considered more important than victims’ well-being. It should come as no surprise that this particular group of individuals affords no such presumption to accusers; if the accused are to be presumed innocent, accusers are to be presumed guilty. Of maliciousness. Of dishonesty. Of something.

Nowhere is this divide more immediately obvious than in Nassar’s case. He was an abuser who thrived because of all of the leeway that he was voluntarily afforded by those tasked to know and do better. Abusers understand this advantage, and if they do not, they are often taught it by the same justice system that allegedly exists to stop them. They learn that their crimes can be difficult, if not impossible, to prove. They learn that the legal system is fundamentally hobbled when it comes to dealing with their crimes. And they thrive knowing the advantage they enjoy over their accusers.

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In 1997, five years after Davis first says she approached MSU and the MSUPD, Larissa Boyce injured her back at a gymnastics event being held at the university. Nassar provided treatment. He scheduled weekly visits. At those visits, he repeatedly digitally penetrated Boyce, all while assuring her that such treatment was both standard and cutting edge. One of her coaches happened to ask how the treatments were going and Boyce explained what was happening; the coach told her that she needed to tell Kathie Klages, MSU’s gymnastics coach. Klages gathered Boyce and other athletes to ask them about Nassar. At least one other athlete reported experiencing treatment similar to what Boyce endured. Klages told the athletes that although she was in a position to file a report about what they told her Nassar was doing, it would risk both of the athletes themselves facing “serious consequences.” Klages probably was not wrong about that. Accusers are often put through the second hell of enduring disbelief. But Klages was not seeking to protect her athletes.

Before Davis came forward, it was believed that Boyce was the first person to have reported Nassar’s behavior to anybody with authority. But Klages never reported the abuse to Boyce’s parents, nor to anybody further up the line. She did tell Nassar though. Klages, who spent almost two decades insisting that Nassar had done nothing wrong, turned herself in last month; she is facing charges for having repeatedly sought to protect Nassar from scrutiny.

Nassar was not investigated. Nassar kept his job. It would be 19 more years until Nassar was arrested. Nassar would eventually assault more than 400 more women.

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The obvious appeal of the presumption of innocence is that it puts the burden of proof upon the other party. That the state has to prove its claims against individuals is far better than scenarios in which individuals are presumed guilty; the nation’s history is, after all, littered with examples of what it looks like when guilt is assumed. It would seem then that this leaves us stuck in a forever stalemate, with our only options being either the presumption of innocence or the presumption of guilt. These choices are thoroughly polarized, with the implication being that we either can have one, or we can have the other, but that we absolutely cannot have both.

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In 1999, an MSU softball player named Tiffany Lopez reported chronic back pain to the school’s training staff. She too was sent to Nassar for treatment. While there, he inserted his hand into her vagina. Lopez immediately reported what had happened to MSU’s training staff, including Destiny Teachnor-Hauk. Lopez was told that she should feel grateful for having received treatment from one of the nation’s pre-eminent doctors. Lopez was told not to make unsubstantiated accusations, she was told that reporting Nassar risked causing him and his family unnecessary heartache, and she would later be told that her refusal to continue attending her appointments with Nassar was among the reasons she should stop playing softball for the school.

Nassar was not investigated. Nassar kept his job. It would be 17 more years until Nassar was arrested. Nassar would eventually assault more than 400 more women

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It might be the case that those defending accused abusers are genuinely concerned with the possibility that women everywhere, emboldened by seeing multiple women come forward to report abusive behavior, will weaponize accusations against men everywhere in an attempt to achieve…well, something, although nobody is making it particularly clear what that something might be, nor why anybody would risk everything that comes along with making accusations: the abuse, the disbelief, the relentless brutality of those who seek to deny the obvious humanity of victims.

That the blowback is always the same is, perhaps, a giveaway that what we are witnessing is a deeper bit of cultural rot than simply a well-meaning concern for accused individuals themselves.

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In 2004, Brianne Randall-Gay, a 17-year-old with scoliosis, was sent to Nassar for treatment. In the aftermath of her visit, both she and her family visited the Meridian Township Police Department to report that Nassar had digitally penetrated her and grabbed her breasts. Police investigated Randall-Gay’s claims, which included visiting Nassar himself. The doctor insisted that what he had provided were ground-breaking medical treatments. Nassar showed the police a PowerPoint presentation justifying what he had done.  Andrew McCready, the investigating officer, sought no additional clarification from anybody else; Nassar’s word was good. The case was never turned over to a prosecutor.

This time, Nassar was investigated. But he was allowed to clear himself. Nassar kept his job. It would be 12 more years until Nassar was arrested. Nassar would eventually assault more than 400 women.

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Again and again and again, Nassar enjoyed not only the presumption of cultural innocence but of legal innocence too. Again and again and again, his accusers were simultaneously told that they simply did not understand what they had experienced and that they risked severe consequences for coming forward. Again and again and again, the mechanisms that were allegedly in place to stop Nassar instead enabled him while punishing his victims a second time. Again and again and again, the same person mattered, and the same people did not.

Is this evidence of the system working? Is this evidence of the system failing? It turns out that it matters very much who gets asked.

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In 2014, Amanda Thomashow approached Dr. Jeff Kovan, the director of MSU’s Sports Medicine Clinic, about Nassar. She reported that Nassar had abused her while treating her hip pain. Thomashow also approached the MSUPD, the same organization that had 22 years earlier refused to investigate the earliest known report of Nassar’s abuse.

Thomashow reported that Nassar had massaged her breast and then put his hands into her sweatpants; he massaged her vaginal area with three fingers. She tried to stop him but could not. She reported the abuse to Dr. Brooke Lemmen, Dr. Lisa DeStefano, and Dr. Jennifer Gilmore, as well as the aforementioned Teachnor-Hauk.  All of them told Thomashow that what Nassar was doing was medically appropriate. Thomashow, like so many women before her, was told that her understanding of what had happened was wrong.

Thomashow refused to accept this explanation and pushed for additional investigations, one for possible Title IX violations and one for criminal violations. The Title IX investigation, which automatically alerted administrators throughout MSU that Nassar had been accused of abusing a patient, was eventually finished, 16 months after it had begun. It concluded that Thomashow had misunderstood what had happened to her. The school’s Title IX investigator had concluded that Nassar’s methods were a “liability” but this information was not conveyed to Thomashow; she was given an altered version of the investigator’s report that omitted this finding. The report also declared of Thomashow’s report:

We cannot find that the conduct was of a sexual nature. Thus, it did not violate the sexual harassment policy. However, we find the claim helpful in that it allows us to examine certain practices at the MSU Sports Medicine Clinic.

Meanwhile, the MSUPD’s investigation occurred concurrently. Officers visited Nassar. He predictably insisted upon his innocence, copping only to have done a poor job of explaining his methods to the patient. He claimed that he was an expert in treating a patient’s pelvic floor. He produced, as he had done before, a PowerPoint presentation that he claimed exonerated him; this one was Star Trek themed, and was titled, “Pelvic Floor: Where no man has gone before.” The MSUPD sent Nassar’s case to the Ingram County Prosecutors Office. That office decided not to bring charges against Nassar. Steve Kwasnik, one of the county’s prosecutors, declared that Nassar was performing a “very innovative and helpful manipulation of ligament,” before noting that Nassar needed to “do a much better job of explaining what he is doing to the patient who rightfully might feel violated by his technique.”

Nassar had been investigated again and was again allowed to clear himself with claims that what he was doing was designed to help; he was also permitted to see patients again in the aftermath of his clearance. Those patients were not warned in advance about what Nassar had been accused of. Nassar kept his job. It would be another 16 months before Nassar was arrested. At least a dozen women have come forward to report having been abused during this period. Nassar would eventually assault more than 400 women.

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A system that could repeatedly find in Larry Nassar’s favor is simply not equipped to deal substantively and meaningfully with abuse. It is too tilted, overwhelmingly so, in favor of abusers and against victims. It is possible to imagine administrative fixes – including mandatory reporting with criminal consequence for those that do not, mandatory investigations of reported abuse with criminal consequence for those that abstain, and exposure to financial liability of everybody involved – but what can be done about the deep cultural cancer that leads to the wholesale dismissal of victims? What fix is there for a persistent belief that men’s reputations matter more than the well-being of victims?

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Everybody mentioned so far has been an official of some sort or another: school officials, legal officials, whatever. But read long enough about Nassar’s abuse and the parents who disbelieved their children start to appear, at least on the margins. Kyle Stephen’s parents accused her of lying to them about Nassar. They looked their own daughter in the eye and decided that what she was saying – that he had abused her over a period of six years, from when she was six years old to when she was twelve years old and first came forward, during her family’s Sunday dinners with the Nassars – was less credible than Nassar’s denials. Stephens’ parents demanded that she apologize to Nassar. Stephens eventually forgave her parents for how they had treated her. It would have been understandable if she had not.

There is no fixing the bone-deep cultural assumption that accusers are lying.

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It took Rachel Denhollander taking what she described as a shot in the dark. She approached the Indianapolis Star with her story about Nassar’s abuse after the newspaper had reported on USA Gymnastic’s abysmal handling of abuse allegations against its coaches (handling that mirrored similar strategies employed at other institutions throughout the United States). Denhollander wanted the newspaper to know to look out for accusations about Nassar specifically. She had been abused, she reported, and unlike so many others, the newspaper’s reporters believed her.

It appears to have been easy for everybody involved to prefer Nassar over his victims when there were only single accusations, no matter how many of them piled up. But Denhollander coming forward, on the record, broke the dam. Nassar tried the same defense that had always worked for him before – Nassar’s lawyer went with, “Dr. Nassar, to the extent the allegations are against him, adamantly denies any misconduct at this or any other time.” – but within a year, more than 100 women had come forward, accusing Nassar of abuse, and within another year, the number had jumped to 200, and then 300, and now stands at more than 400.

Their stories did not change. Their evidence did not change. Their accusations did not change. They said the same things in 1992 that they said in 1997 that they said in 1999 that they said in 2004 that they said in 2014 that they said in 2016. Everything about what they were claiming remained remarkably consistent. It took their sheer numbers before so many could finally grasp that Nassar was the one lying. But those sheer numbers only existed because of the deference that Nassar enjoyed again and again and again. That deference is both legal and cultural, and in both cases, it acts as a shield for abusers, enabling them to continue doing what they have always done.

The popular saying goes that we would rather one hundred guilty men go free than a single innocent man go to jail. Maybe so. There are surely an incredible number of people sacrificed to achieve such an outcome. That sacrifice is worth noting and worth remembering. Their suffering matters as much as any high-minded ideal. Or at least, it ought to.

A Brief Aside On Consequences

The aforementioned Andrew McCready – the detective who investigated Nassar in 2004 and who did not bother to verify Nassar’s claims with any other doctors – is still serving the Meridian Township Police Department. That department was once asked if there will be any consequences for McCready’s half-assed investigation. The department said that McCready feels very badly about the whole thing and that feeling badly is punishment enough:

“I think he’s been held accountable by the simple fact of what he’s gone through, and the sheer torment internally of knowing that he missed this.”

If only Nassar’s victims – the ones who McCready concluded were misunderstood or lying or both – had been lucky enough to endure such torment.