Preponderance Standard to Possibility Standard and Judge Roy Moore

Beverly Young Nelson and lawyer Gloria Allred

If you have never been inside the eye of a smear storm by the groups that are now trying to destroy Roy Moore, I hope that you can take the time to watch some of the videos I’ve been recording, in which I try to break down the controversy about Moore. We have two crimes presented before us, both of which could be deemed conspiracy theories.

Moore is accused of abusing children and using a vast network of power and Christian complicity to keep victims silent for 40 years. His accusers stand accused of massive defamation, racketeering, and fraud, using a vast network of power and political influence to convince millions of Americans of something that isn’t true.

Instead of examining this controversy as a case for or against Moore, you have to think of this as an examination of a case against Moore versus a case against a conspiracy of accusers. Why?

Because it is impossible to disprove something that did not happen but it is sometimes possible to prove something that did happen. The accusation of child molestation against Moore and the accusation of racketeering against his accusers are both charges that will never be fully disproved, if they did not happen. There will always be a hypothetical piece of evidence that we can imagine existing that we couldn’t find.

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But you cannot conclude guilt against someone based on something you do not find or cannot prove.

In this case, to exonerate one of these two parties, the best you can do is prove the guilt of the other. And I am certain that if people investigate the people accusing Moore with as much gusto as they have investigated Moore, they will find mountains of evidence to show that well-funded political operatives found, recruited, coached, and platformed these accusers, leaving behind a long trail of traces.

I am certain that people will not find mountains of evidence indicating that Moore and his defenders have spent large amounts of money, time, or resources tracking down past victims, threatening them, or trying to bribe them (as we had in the case of Harvey Weinstein).

Title 9 cases functioned based on the notion of the preponderance of evidence.

Thankfully that system on college campuses is gone, because “preponderance of evidence” was disastrous in evaluating accusations of sexual assault where there are usually only 2 witnesses, and much of the paper trail is generally generated by the person who is also accusing someone else of something. Part of the reason for this system’s failure was also that the accused did not have the right to solicit information or speak to others about the charges, so the accused could easily fail the preponderance test, particularly with a biased investigator.

We should all be glad that Betsy DeVos revoked the Dear Colleague letter that allowed for the preponderance standard, and Jerry Brown vetoed the California bill that would have re-instated the standard in California.

But what is happening now?

We have moved from a preponderance of evidence standard to a “credibility” standard, another word for “possibility.” We don’t need any evidence to convict if something really bad is at least possible.

I have no illusion I can fix this problem. But I do think we can manage the discourse in order to use the “credibility” standard to better effect: apply it to the person being accused but also apply it to the person accused of leveling a false accusation.

Then we can address this in this fashion, imagining Y accuses X of a serious crime in the public square:

  • Are the charges against X by Y possible?
    • Are there enough details in the charges that are conceivable that we could imagine these events happening?
  • Are the charges of slander against Y by X possible?
    • Are there enough details in the charges that are conceivable that we could imagine Y making up the charges?

The thing about this new “credibility” standard is we don’t have to look at motive, likelihood, evidence, or anything. We just have to see whether we think the story makes sense to us. We also do not have to question our own fitness to make a judgment because we are all snowflakes in a postmodern narcissist cesspool of a once-great nation.

But let’s work with what we have here. If the story that X did something makes sense to us, we need to ask if the story that Y made up a lie about X also makes sense to us.

Because the charge against Y is that Y lied about X, and the charge against X cannot be true if the charge against Y is true, then we have a much easier way to get through this. We just have to ask, which charge makes more sense to me?

So now let’s get to Roy Moore and his accusers.

I have already recorded many short videos explaining why I cannot believe the charge that Roy Moore was, and is, a child molester who not only courted teenage girls when he was single, but also molested children and falsely presented himself as a moral man. Not because I like Roy Moore (which I do), but because none of the details of these stories is remotely likely given the context.

But do I think it is possible that a bunch of people could get together and make up a bunch of stories about Roy Moore that conveniently discredit him right before an election?

Let’s see. Gloria Allred, the Washington Post, and the NeverTrumpers are all involved. The week before these charges broke, I was following the NeverTrumpers in the SBC who were threatening to denounce the Family Research Council for having Roy Moore address the Values Voter Summit.

And the morning that the Roy Moore scandal broke, there were a bunch of new exposés revealing that a network of spies tied to Clinton, Harvey Weinstein, the gay marriage equality lawyer David Boies, and the New York Times had a way of smearing people they viewed as obstacles. Roy Moore is a major obstacle to one very important constituency that sides with that very network of spies. Because Roy Moore opposes gay marriage.

And the week before the accusations against Moore broke, the gay community was being exposed for child molestation with their ranks.

Do I think that Roy Moore at the age of 32 found a way to establish contact with a 14-year-old girl, get her alone, and molest her, then get away with that as he worked his way from a low-level job in the local DA office to becoming a judge and then a nominee for the Senate?

No, I don’t think that happened.

Do I think that people I know have engaged in many hoaxes and who I know hate Roy Moore used their proven network of funding and spies to hunt down people who might be coached to denounce Roy Moore publicly?

Yes, I think that happened.

I don’t think anybody looking at this could think that it’s more likely Moore accosted a little girl in 1977, rather than more likely that a bunch of very malicious people with a long track record of smearing innocent Americans did what they have done consistently since the 1990s.

If I believe there was a smear, then by default I do not believe Roy Moore molested little kids.

Roy Moore is a sinner like all of us who had lust in his heart before he was married and learned to tamp that down once he was married.

But by the terrible standards of proof given to me by my contemporaries, I have to say he is not a child molestor and the people saying he is are terrible liars and racketeers who should be fined into oblivion.

Robert Oscar Lopez Facebook Video Channel

The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

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