Believe the victim is a term so commonly uttered in the context of sexual assault prosecutions that it’s approaching a cliche. But “one of the fundamental tenets of our criminal justice system requires that we start by believing, not the accuser, but the accused—a concept more commonly known as the presumption of innocence.” Colonel Daniel J. Higgins and Major Shad R. Kidd, USAF, Start by believing – the Accused, The Reporter Volume 41, Issue 2, at 16 (2014) (available here).
Using psychology as an example, the authors highlight the different between care-giving and truth-seeking:
“The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support. However, in forensic psychology the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee.” The goal is to develop evidence and work toward truth—whether that is easy for the patient to experience or not. Both roles are important. Both roles are necessary. But they are distinctly different roles.
Higgins & Kidd, supra at 18 (quoting Irving B. Weiner, ed. Handbook of Psychology, 4 (2003)) (emphasis in original). Applying these principles to military justice, the authors conclude that:
Air Force leaders, and those tasked to advise them, should first look to context. If the context is justice (e.g., determining disposition of allegations, trial matters), “starting by believing the victim” should have absolutely no place in their decision-making or advice. If, on the other hand, the context relates to Special Victim Capability (e.g., humanitarian moves, VA services), “starting by believing the victim” may be appropriate.
Higgins & Kidd, supra at 18. An anecdote highlights the danger of conflating criminal justice with :
The pressure felt by the special court-martial convening authority was evinced in the push note that accompanied his referral recommendation. He clearly recognized the weakness of the case (late reporting, no forensic evidence, alleged victim with a very poor character for truthfulness, etc.) and the likelihood of acquittal, but he wrote that the Air Force “owed” her a court-martial. His thinking, as should be obvious to anyone familiar with the basic precepts of criminal law, was completely off-base. The military justice system owes society justice and the accused due process; it does not “owe” an accuser a court-martial. This convening authority’s statement is nonsensical from a military justice perspective but understandable from a services or treatment perspective—the problem is that the note was written in a military justice context.
Higgins & Kidd, supra at 19.
The article concludes with a powerful call to action:
As the guardians of the military justice system, it is our duty to ensure we provide America’s Airmen a fundamentally fair and impartial process. Doing so requires that we ensure all Air Force members are properly trained that in the criminal justice context, we must all start by believing the accused and never vary from that presumption unless and until his or her guilt has been proven by legally competent evidence beyond a reasonable doubt. Permitting any training to undermine these guarantees would constitute a failure of our most fundamental duty as judge advocates.
Higgins & Kidd, supra at 19.