Author: Danya Shakfeh

Arbitration and Mediation- Alternative Dispute Resolution For Addressing Claims of Spiritual Abuse

Arbitration and Mediation- Alternative Dispute Resolution For Addressing Claims of Spiritual Abuse

Introduction

Over the past couple of years, claims involving spiritual abuse such as secret marriages, sexual abuse, bullying, and financial fraud have come to surface in the Muslim community.  Community members have attempted to address these claims in varying ways from ‘outing’ alleged perpetrators to lawsuits to communal redress.  One method of communal redress some members and leaders have taken are what appear to be arbitration or mediation.  Unfortunately, the execution of these attempts at redress, though well-intentioned – and sometimes ill-intentioned—have been disasters.  Even worse, some of these disasters have been viewed by the community as successes due to them not knowing how these situations were actually handled behind the scenes.  I like to call these instances ’faux-arbitration‘ because those heading it only appear to be addressing the victims’ claims but the methods employed are for show only, as described in “Who Will Mind the Minders.” Here, I will explain the proper way of handling internal redress of claims involving spiritual abuse by explaining Alternative Dispute Resolution (ADR), abuse of ADR by our community leaders, and rules and principles communities should follow going forward.

What is Alternative Dispute Resolution?

There are two main ways disputes can be handled within the legal system: 1) litigation (aka lawsuits) or be Alternative Dispute Resolution (ADR).

In the context of a lawsuit, there are two ways a case can be filed: 1) as a civil claim or 2) as a criminal case.  Whether a case is criminal or civil, they essentially start with a ‘complaint’ which is the legal document that is submitted to a court and lays out all the legal claims and requested remedies.  It is also important to understand that in the criminal context, the ’client‘ is the State and not the victim. In other words, the State is concerned with its own interest and not the victims in pursuing a criminal case.  Another key distinction between civil and criminal cases is the evidentiary standard.  Civil cases have a standard of ’preponderance of the evidence‘ which means that the evidence presented must demonstrate the plaintiff’s claim is ’more likely than not‘ to be true.  This is in contrast to criminal claims which have a ’beyond a reasonable doubt’ standard, which means that the prosecutor must demonstrate there is no reasonable doubt as to the defendant’s guilt.

In sum, it is much more difficult to criminally convict a defendant in a criminal case versus proving the equivalent claim in a civil case.  Depending on the claims, a claim can be filed as both civil and criminal claims as separate actions.  Lastly, a practical difference between civil and criminal cases is attorneys’ fees.  Because criminal cases are prosecuted by the state, a victim does not need to hire an attorney to have his or claims prosecuted.  However, because that victim is not the client, the remedy often does not center around the victim.  Rather, the focus is punishing the perpetrator. If a victim wants his or her remedies, an attorney would have to be hired to file a civil claim and this can be cost-prohibitive for most people.

The other option is self-regulation by the community through Alternative Dispute Resolution (ADR).  The two types of ADR’s are mediation and arbitration.  ADR, regardless of the type, entail the parties having their dispute resolved by an impartial third person or panel.  The difference between mediation and arbitration is the goal of the process.  The terms of the ADR are through contract and depending on what the parties agree to; the ADR can be binding or non-binding.

In mediation, the goal is for the parties to reach a compromise.  Mediation is typically used in marital and business disputes.  This is in contrast to arbitration, where the parties essentially put on their ’cases’ in a less formal setting than a trial before a panel of arbitrators and the arbitrators come to finding a proposed remedy, which the parties may be required to accept, depending on the agreed upon terms of the arbitration.  Given the nature of abuse claims, mediation is not a useful option as the two parties are not in a dispute in which a compromise can be reached.  In other words, this is not a custody battle nor a dispute over business assets.  Rather, because there is a claim against one party by another, a factual inquiry needs to be undertaken and this could be accomplished through arbitration.  However, it is notable that though the process is much more expedited and less expensive, the discovery process is also less formal and witnesses cannot be compelled by the parties to appear for an arbitration.  Rather, it is the arbitrator(s) who compel parties to appear to produce evidence.  Because the discovery scope of arbitration tends to be much more limited due to the parties having less power to seek information from third parties, arbitration may not be the best option.

A key difference between ADR and litigation is that litigation can be legally imposed on a party whereas ADR cannot typically be imposed. In other words, absent a contract, a party is not required to submit to an ADR (but can voluntarily do so). With that said, the ADR contract can require that all parties submit to the arbitrator’s findings if both parties agree to do so beforehand.  However, once a lawsuit is filed and a party is served, he or she must submit to the lawsuit.

Abuse of ADR and the “Faux-Arbitration”

Leaders who have good intentions, but are inept in this area, often simply ignored these claims due to not knowing how to handle them.  This is still inexcusable because one must seek counsel of those who do know when presented with a problem or step aside.  However, we have many cases of corrupt leaders who are creative in purposefully ignoring these situations.  Without pressure for redress, corrupt leaders also suppressed, sabotaged, and ignored these claims.  However, now that more people are demanding accountability for abusers, corrupt leaders (who’s corruption is expertly hidden) have learned how to manipulate the situation to make it appear as though they are addressing victims’ claims involving spiritual abuse through “faux-arbitration.”  Here are two examples:

  1. A shaykh purportedly sought to address a victim’s complaint against another shaykh for fraudulent inducement of marriage (i.e., lying to the sister in order for her to agree to the marriage). In this real-life example, the mediating “shaykh” told the victim he would push for remedies for her situation but turned around and told the abusing shaykh’s Muslim employer that no abuse took place and this was a “private matter” between spouses.  In reality, this mediating shaykh was seeking to only silence the victim through appeasement by presenting remedies that could and would not ultimately be enforced.  The problem here is that the mediating shaykh was not truly interested in addressing the sister’s claims and was playing both sides by engaging in manipulation and delay tactics in order to ultimately avoid accountability.  The mediating shaykh was able to accomplish this double-play through lack of transparency.
  2. Another real-life example is an arbitrator who sought to ’arbitrate‘ his own personal conflicts in the same proceeding as the spiritual abuse complaint. This arbitrator had a financial conflict with an accused imam and the arbitrator’s choice in exposing the accused imam publicly was more of an act of revenge against the accused given that the victims’ grievances were never actually addressed and the arbitrator was aware of the accused’s imam’s tactics long before the complaints, yet only stopped endorsing the accused imam after their financial conflict arose.

The above examples ultimately did not help the victims and even caused more distress, not only for the victims, but the community at large.  On their face, those who lead arbitrations appeared to have engaged in some sort of ADR but if you scratch the surface, their processes were riddled with conflicts of interest, or lack of transparency, and no defining of terms whatsoever. This ultimately creates more harm than good as abuse of ADR is further perpetuation of spiritual abuse while convincing victims they are being made whole.

Alternative Dispute Resolution Done Right

As stated above, ADR is typically based in a contract.  The parties, specifically the accuser and the accused, will agree to the terms of the arbitration (or mediation where it may be appropriate).  Terms included will be scope of the claims, scope of discovery, paying for expenses related to the arbitration, whether the arbitration will be binding or non-binding, and who should serve as the arbitrators and whether the arbitrators should have specific expertise (e.g., an accountant in a claim involving stolen money).

I recommend that the role of the arbitrators be to gather evidence, hear testimony from both parties and their witnesses, decide the specific issues based on the accuser’s claim, and provide a written analysis of the bases of their findings. This should be done with the assistance of an attorney or someone with a legal background equipped with these skills.  Although arbitrations are not always this detailed and intense, given the community’s interest at large and the dire need for good precedence on handling these situations, I highly recommend this level of thoroughness. This does not suggest each arbitration be publicized, but just that a record be available and not subject to legal confidentiality.

Another important aspect is transparency.  The ADR process should be clearly laid out as well as the specific issues being addressed, and which and how the facts are applied to the conclusion that the arbitrators ultimately reach. For example, when claiming that an abuser perpetrated ’spiritual abuse,’ the specific offenses need to be mentioned at the outset and the findings should clearly detail which facts speak for or against this claim.  It is not enough to simply list terms and claims without clearly listing the elements for each claim. Additionally, the arbitrators should list all the evidence and testimony that was taken into consideration. Further, while settlements arising out of disputes are often subject to confidentiality clauses, given that our community at large has an interest regarding claims involving spiritual abuse, I generally recommend against subjecting such arbitrations to confidentiality.

Lastly, it is important to decide who should serve as the arbitrator or arbitrating panel.  Under no circumstance should a member of the institution serve as the arbitrator as this would be a conflict of interest between the institution’s interests and the victim’s interests.  Further, anyone with a personal conflict or interest with any of the parties should also not serve as an arbitrator.

Conclusion

Arbitration done correctly is a powerful tool for addressing cases of spiritual abuse. Creating a system for arbitration is a powerful tool that allows victims to petition, or pressure at a social level, and compel Islamic institutions to investigate harms which require alleged abusers to submit to the process and remedies.  Though arbitration is limiting, it may be a good alternative to a cost-prohibitive and lengthy process of litigation.  Lastly, in addition to involving those with Islamic training and who understand spiritual abuse, a local attorney should be consulted because arbitration clauses can be complicated proper wording is key to enforcement.

The method of addressing claims of spiritual abuse should be handled on a case-by-case basis.  In some instances, going straight to the community may be warranted.  In other cases, arbitration or mediation is the best method.  Arbitration is a service that In Shaykh’s Clothing offers. We have a team of scholars, lawyers, and subject-matter experts who can use their expertise to properly evaluate evidence presented before them in order to make sound and informed findings.  Further, when ADR is necessary, we know which third-party expertise are necessary for a mediation or arbitration panel.  We are happy to walk the victims and parties involved through our method, including coming to an agreement on which people to involve, as needed in order to make the victims whole while protecting our community from further abuse.

To contact Danya Shakfeh email  danya@inshaykhsclothing.com

 

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Threats of Defamation to Silence Those who Speak Out Against Spiritual Abuse

Threats of Defamation to Silence Those who Speak Out Against Spiritual Abuse

Joint Post by Shaykh Rami Nsour and Attorney Danya Shakfeh

Rami Nsour:

I was threatened with a defamation lawsuit after calling out the behavior of a shaykh.  I uncovered a series of aggressive proposals with female students of his, trying to coerce them into secret marriages. He would urge them not to tell their parents, and not inform his wife, or anyone else in the community or her family. I reviewed text messages, voicemails and spoke to a number of the students he tried to coerce.  He used a whole host of spiritual abuse manipulation tactics including telling them that he is their “spiritual father,” that he could be both the wali (guardian) and the groom, and other abusive tactics.

As I proceeded to speak with people, including community leaders with about what was going on, a few of his closest supporters and the teacher became enraged at me, especially since donors and supporters withdrew their funds and support of the shaykh.  One of the shaykh’s supporters threatened a defamation lawsuit but did not do so directly; he instead went to one of the female students and told her that he would be taking legal action against me.  What did this do?  This caused the sister to doubt herself for bringing this to my attention and worried her that she caused this harm to come to me.  I told her not to worry. Also he said ‘you should know because you may be called in to testify and that Rami is ruining your good name.’

I began trying to figure out the nuts and bolts of what a defamation lawsuit might look like and how that would impact me and my family.  I reached out to Danya Shakfeh, the author of the article below and an attorney, and asked her advice and what she said did two things; it eased my concerns and it empowered me to keep speaking.  I was not planning to stop telling people the truth, but it was either continue under the stress of an impending lawsuit or continue without worry.  Danya’s advice allowed me to continue without worry.

She told me that there were a number of problems with their threat.  The first was that the supporter could not bring the lawsuit himself as a defamation case can only be brought by the person who was being spoken about.  Second, defamation is only about things that were false; what I was saying was true.  Thirdly, if they brought a case to court, the best case scenario for them would be that it would be dismissed and thrown out of court as the fact that they would have to bring up the issue of bigamy (which the teacher and the supporters did not deny) would put him under the scrutiny of whether any bigamy laws were broken.  With these points in mind, my stress was over.  I was ready for whatever lawsuit they would like to bring. And I am still waiting.

Here are a few thoughts I had about the whole ordeal.  This teacher and his supporters were essentially trying to threaten me into silence.  They did not place the needed focus on the issue of the prohibited (haram), unethical and illegal behavior of the teacher, but rather focused on my problems with how I chose to handle things and what effect my speaking out had on monetary donations to the work of the teacher.  The issue became how I handled the matter, and not the matter itself.   I also learned that attempting to communicate my concerns to community leaders and his supporters would not guarantee a remedy and can actually backfire against me.

It also showed me the true colors of the teacher and his supporters.  They were more concerned with the “honor of the shaykh” and donations than anything else.  I asked them, “Why are you not speaking up for the honor of the sisters he hurt?”  I thought about all the sisters in similar situations who may be bullied into silence through the threat of defamation and the misuse and manipulation of religious texts to prevent them from speaking the truth and addressing spiritual abuse.  Teaching our community how to recognize abuse (in all its forms), how to speak up and reach out to people who will help, helping those who reach out and protecting those who speak out from defamation bullying tactics should be a staple part of our discourse.  These messages should ring loud from the minbars of our masajid, the classrooms of Sunday schools, the assembly halls of Islamic schools and the youth halaqas wherever they may be held.

Danya Shakfeh:

Defamation Explained

Several weeks ago, Shaykh Rami Nsour came to me with the concerns he had described above.  His account made me realize that as an attorney in the United States, people generally have a lot of misconceptions about the legal claim of defamation.  In the context of spiritual abuse, knowing what constitutes defamation is important.  All too often, a religious figure being accused of inappropriate or illegal behavior will respond with threats of suing for defamation.  I will explain exactly what this claim is, its defenses, and break down why such a threat is often nothing but an empty and meaningless threat.

The legal claim of defamation is defined as a defamatory statement that is a “false statement of fact that is negligently or intentionally communicated or published to a third party.”  More simply, defamation is a defamatory statement communicated by one party to another, whether intentionally or due to carelessness in communication.  There are also two types of defamation: 1) defamation per se and 2) defamation per quod.  The difference between these types of defamation is the defamatory content that is being communicated.

Defamation per se are categories of defamation that are actionable regardless of damages resulting from the statements.  More simply, even if the one claiming defamation does not lose money or suffer another loss, he or she can still succeed on a legal claim of defamation.  These categories are: 1) words that accuse someone of a crime, 2) words that accuse someone of having a loathsome contagious disease, 3) words that accuse someone of being dishonest in the context of his office or employment, or 4) words that state that someone is incompetent in their job or profession.  Many jurisdictions have expanded the categories of defamation per se and some, if not all most jurisdictions also include a woman’s chastity.

An example of defamation per se is a surgeon being accused of consistently having poor outcomes in her surgeries when in reality the physician has a record of excellent outcomes.  The physician does not have to demonstrate she is losing business as a result of these defamatory statements to succeed in her case. Defamation per quod, on the other hand, is a defamatory statement by which a plaintiff (the one suing for defamation) must prove damages that resulted from the statements. An example of defamation per quod is if a person is accused of believing she is a unicorn and people refuse to be her friend or hire her for a job, but the person does not, in fact, believe she is a unicorn. She is damaged from these accusations and she would have to demonstrate damages.  The person’s belief that she is a unicorn is not (legally) inherently defamatory and thus, she must demonstrate damages to succeed on a claim for defamation.

Lastly, there is also a lot of confusion regarding slander versus libel.  The only difference between these two is the method of communication of defamatory statements. Slander is conveyed orally whereas libel is written defamation.

Defense Against Claim of Defamation

The main substantive defense for defamation is the truth of the statements.  Note that the definition of defamation involves false statements. If a statement is true, it is not defamation, no matter how injurious the statements are to the plaintiff. I cannot stress this enough.

With respect to our context of allegations of some form of spiritual abuse, if an accused, for example, in fact, engages in “secret marriages” and a victim wants or needs to communicate this to third parties, the accused will not have a claim of defamation against the victim.  Note that the plaintiff (the one suing for defamation) must prove all of the elements of defamation.  This includes proving that the statements conveyed by the defendant (the one accused of defamation) are false. As a practical matter, depending on the nature of the statements, that particular burden may shift between the parties, but the bottom line is that whether the statements are true are false will be up to the court to decide and may be public record.  This is bad news for a plaintiff (the one suing for defamation) if he does not want a court to investigate and make public whether he engages in inappropriate or illegal behavior.

To make defamation claims more complicated, public figures, as defined by the courts in the United States, have an additional element to prove when making a claim for defamation.  A public figure must prove that the defamatory statements were made with “actual malice.”  Despite the verbiage, “actual malice” is not about ill-will or intent, but rather not caring whether the information is true or false and spreading unchecked information.  This standard exists to protect First Amendment rights and journalists (in the United States). Many of our scholars and community leaders may fall into the “public figure” category.

Another point regarding defamation lawsuits (and lawsuits in general) is that not anyone can sue on a claim.  For defamation, for example, generally speaking only a party who is directly a subject of the statements may sue.  This concept is known as “standing.”  In our context, if a student of a shaykh, for example, is offended by a victim’s allegation against a shaykh, the student cannot sue on the shaykh’s behalf, because the student has no standing.

A Message to Victims and Survivors

If you are a victim, there are two takeaways from this.

  1.               If you have evidence of your allegations, keep them.  It is common and understandable for victims to want to erase this part of their lives by deleting emails, texts, and letters as a way of coping, but please find a way to hold on to that evidence so you can use it to the protect yourself if the allegations become public (whether through a lawsuit or not).
  2.               The second point is that it is not as easy for a perpetrator to sue for defamation as he may think. A perpetrator may be shooting himself in the foot by dragging certain aspects of his life to the public so take such threats for what they are.

The bottom line is that threats of lawsuits by a perpetrator of abuse for defamation may ultimately prove more harmful to the perpetrator. A victim of abuse should try her best to not be swayed by such callous threats.  However, in the event that a situation does take this unfortunate turn, a victim should hold on to as much evidence as possible to protect her or himself from such allegations.

Danya Shakfeh is an attorney who practices litigation, contracts, and business law.  She can be reached out at danya@inshaykhsclothing.com.

 

(The above post should not substitute for legal advice.  If you are ever in such a situation, please seek the advice of local counsel).

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Who Will Mind the Minders?

Who Will Mind the Minders?

A minder is someone whose job is to look after and protect others.  They are respected authorities and seen as gatekeepers in a community.  But how do we ensure that the minders are doing their jobs? What mechanism can we employ to ensure they are working in the interest of their beneficiaries versus their own personal interest? The mechanism is full transparency and transparency is the key to accountability. When we think of holding those in authority accountable for their misdeeds, we tend to think of ‘calling them out’ or other forms of public redress.  While there is certainly a time and place for public accountability, this method will fail on two fronts: 1) where covert abuse is taking place and 2) prevention of abuse by others. There are two forms of transparency: 1) transparency of process and 2) transparency of conflicts of interest. In the context of spiritual abuse where covert abuse is frequent, both of these forms of transparencies are rarely demanded and incredibly underutilized.  

Transparency of process entails that clear standards  are in place before addressing claims of spiritual abuse.  Mentioning the specific offenses, setting the boundaries of, and defining spiritual abuse is only the first step. The process and evidentiary methods should also be laid out. This should entail a method for complaints, redress, evidence-gathering, and applying the facts to the definition and analyses of spiritual abuse in a clear way. There should be no clouds of secrecy.  Instead what our Western Muslim community has engaged in is call-outs without clear definitions and analyses. Our community is only given vague statements regarding allegations of abuse that the community is expected to believe. The problem with this is not necessarily (though sometimes is) that the perpetrator is innocent, but rather that this allows community leaders to use allegations against a perpetrator to bring down the perpetrator for their own personal benefits and to promote themselves as heroes.  Another problem that arises out of lack of transparency is when a perpetrator is found to have engaged in illicit or abusive behavior and then quietly or even celebratory departs from an organization. This allows the abuser to easily work for other organizations because his previous send-off was positive or neutral.

Transparency is key because it is essential for manipulators to control the flow and content of information to different people. One of the tactics that manipulators use, for example, is misinforming different people about others and creating suspicion among people.  So John may privately tell Mary and Maria that one is jealous of the other and anything John does is for their protection. He can then justify any abusive behavior under this guise. But once Mary and Maria speak to each other, they will realize that it was John who is instigating this misinformation.  But if everyone is in the same room at the same time (literally and figuratively), the manipulating party has less control of his or her victims.  This is why transparency is key. The best way to explain this is by way of example as follows:

TRANSPARENCY OF PROCESS

Below are two cases where transparency of process was lacking resulting in further abuse:

Case One: A well known Muslim scholar, who also sat on the board of a well-known nationally known Islamic organization, was accused of engaging in secret marriages by several women.  One of the women went to the organization to complain and the founder of the organization, who is a close friend of the shaykh, readily sympathized with the women, asked for evidence, and promised he would discuss it with the founder of the organization.  Shortly after the woman sent her multiple written exchanges between the Shaykh and herself, the organization unexpectedly announced the termination of the abusing Shaykh from the organization. The official statement from the organization stated that the organization would greatly miss the Shaykh but the Shaykh now has decided to relocate for personal reasons.  The woman attempted to contact the organization’s founder for some type of explanation, but the founder ignored her. Finally, adding insult to injury, the woman learned from others’ that the founder was calling her mentally unstable and warning the community to stay away from her.

CASE ONE ANALYSIS: In this case, the organization did not have, nor did not abide by a transparent grievance process. There was no opportunity for either side to be truly heard and ultimately the issue was swept under the rug.  The victims never got redress and the larger community does not have an inkling of the Shaykh’s abuse, which allows him to continue his abuse in other communities. The organization’s founder lied to the woman by expressing concern and pretending that she would be heard, then turning around and suddenly terminating the abusing Shaykh with a positive send-off.  It became clear afterwards that the organization’s founder’s ultimate goal to hearing the complaints was not redress, regardless of how that takes place, but to learn what would appease the woman into silence. The silence-through-appeasement is more effective than threatening the woman into silence because threatening the woman into silence may cause her seek redress elsewhere and making the organization’s actions cover-up known publicly.

Case Two: A famous Shaykh sponsors and affiliates with an international humanitarian organization.  Unexpectedly (to most people at least), the Shaykh announces his withdrawal of support from the humanitarian organization by a one-page letter published on the internet.  In the letter, the Shaykh states that he has named certain members of the organization who he claims have engaged in financial impropriety. The Shaykh does not mention any formal investigation, any experts consulted, or methods cited as to how to he reached this conclusion.  Based on the letter, it appears that this was a unilateral decision and investigation, even though the humanitarian organization has a board. The organization and its members named denied the Shaykh’s allegations.

CASE TWO ANALYSIS: In this case, our community is expected to only take the Shaykh’s word regarding his accusations against these individuals.  Putting aside whether the individuals are guilty of the accusations, the community has no clue as to how the Shaykh arrived to his conclusion.  Even if we assume that the Shaykh had the best of intentions, we do not know if he has the expertise to make such a determination. Simply put, the community should demand a higher standard and clear process and basis when conclusions, especially of this magnitude, be made.

TRANSPARENCY OF CONFLICT

This may make many people uncomfortable, but we need to always be cognizant of the fact that our scholars are human subject to their own faults and vices.  Such faults include having personal enmity, jealousy, and conflicts with other people, including other scholars. In such cases, scholars who have such conflicts should disclose or recuse themselves from any process of holding their enemies accountable. It may be the case that two scholars have done business together (whether within or outside of their religious organizations) and have had a fallout and would not mind seeking revenge.  Another type of conflict of interest is when a scholar was potentially involved (whether unwittingly or not) in the allegations and would like to handle victims’ claims in order to protect his (or her) reputation rather than addressing the claims.

 Here is a scenario, which is frankly, quite common and based on several reports we have received:

Case of Conflict of Interest: Imam Imad and Ustadh Isa have collaborated on many Islamic projects together including teaching courses together.  Within a few years of their relationship, things started to sour and they had a fallout rooted in financial disputes. At some point, members of their shared community approached Imam Imad with complaints regarding Ustadh Isa bullying them and privately approaching female students for secret marriages.  Imam Imad found this to be an excellent opportunity to ‘take down’ Ustadh Isa and gain an upper hand in their financial dispute by spearheading a committee to ‘investigate’ these claims. Imam Imad also wanted to protect himself since he frequently publicly endorsed Ustadh Isa knowing that students were complaining about Ustadh Isa’s bullying.  Ultimately, Imam Imad issued an open letter  regarding his ‘investigation’ and advised the community to stay away from Ustadh Isa. Ustadh Isa denied that he was given an opportunity to address the claims of the investigation and was not physically present during said investigation. Additionally, there were whisperings of other well known scholars working nobly “behind the scenes” to address the community’s concerns. Ultimately, Imam Imad appeared to be the hero while Ustadh Isa was exposed an abuser.

ANALYSIS: This scenario is incredibly problematic on several levels. Firstly, as is obvious, Imam Imad was in no position, given his personal conflict, to be in any role in holding his adversary accountable, even if the allegations against Ustadh Isa are true. This taints the integrity of the process and may result in findings and punishments harsher than what may be truly warranted.  Additionally, it falsely presented Imam Imad as a hero when his behavior is no better. He used his position as a community leader to address his personal conflict with Ustadh Isa.

Another problem is the community’s treatment of other scholars working ‘behind the scenes’ as if this is some sort of benevolent form of accountability.  There is nothing noble or laudable about this approach. The proper way is to document the claims as specifically as possible, document the process, take meeting minutes to ensure that all parties are present and heard, and document the testimony and evidence.  

CONCLUSION

We will never get past scandals of spiritual abuse if the manner in addressing the incidents are equally scandalous.  This takes away from the credibility of addressing the claims and the community will never truly benefit from the lessons that could have otherwise been learned.  We will just continue the same cycle of a victim coming out, the community marginalizing the victim, fake accountability, and opportunists taking advantage of the situation for their personal gain while being hailed as heroes.

If you or your community is experiencing this problem, you can learn more about our training and consulting services or email us to info@inshaykhsclothing.com.

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Innocent Until Proven Guilty is More Than a Formality

Innocent Until Proven Guilty is More Than a Formality

Introduction

 Following a few recent allegations of sexual abuse, many are debating the meaning and application of the maxim “innocent until proven guilty.” As we have discussed before, believing victims and upholding the “innocent until proven guilty” standard are not mutually exclusive.

First, “innocent until proven guilty” is not a simply legal formality that only exists in the (United States) courtroom.  In the United States, the foundations of this maxim are based on the constitutional and fundamental right of due process in the Fifth and Fourteenth Amendments to the U.S. Constitution. The Fifth Amendment states, in relevant part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, […] nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law [emphasis added]

The maxim is also part of the United Nations Declarations of Human Rights, Article 11, which states “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” Finally, the maxim also has roots in the general principle that the “burden of proof is on a claimant.”

However, we, the public, cannot act as judge, jury, and executioner regarding cases of spiritual or sexual abuse.  We cannot say “there is no question as to the facts, now we just have to wait for the legal system to find same.”  This legal presumption upholds an accused’s right to defend himself or herself.  And despite what we believe about the facts of a particular case as presented to the public, perceptions are often misleading.  Consider instances in which guns and knives are planted on dead people at the scene of a crime to give the appearance that the killers in those instances killed their victims in acts of self-defense. It is tempting to say that everything is clear, as the weapons were found on the victims’ bodies. But if a defense is never heard and only a claimant’s claims receive the spotlight, there is no opportunity for a defense to, for example, demonstrate that guns or knives were planted. We do not know what we do not know. We cannot learn what we are ignorant of (here, the defense’s version of the story) until we allow ourselves to listen to it. The presumption of innocence has a practical purpose in ensuring that everyone has their day in court.

Innocent Until Proven Guilty Explained

“Innocent until proven guilty” is not a question of fact.  On both ends of the spectrum—those who insist the accused is innocent and those who have decided he or she is guilty—are misusing the maxim. Both groups are treating this concept as applying to whether an accused is guilty or innocent. One side insists an accused is innocent until proven guilty in the factual sense while the other side is fixated on the likelihood of guilt despite the legal process not having run its course.

We often speak of “burden of proof” when it comes to legal claims, but this only scratches the surface of what courts look for when determining the veracity of claims.

To better understand the evidentiary process in the legal system, one should be familiar with both “burden of proof” and “burden of production.” Burden of production is the process of actually providing factual evidence in order to meet the burden of proof. The burden of proof always remains on the accuser but the burden of persuasion can shift from the accuser and accused depending on the nature of claims and defenses. By way of example,[1] which is overly simplified for the sake of this article, an accuser claims that the accused “beat up” the accuser, resulting in the legal claim of criminal battery. The defendant must introduce evidence as to the following elements for criminal battery: 1) touching which is harmful or offensive, 2) contact with the victim, and 3) intent to cause harm.

In this case, the only parties that were present were accuser and the accused. The accused is “innocent until proven guilty” and the accuser must prove his case “beyond a reasonable doubt”—the criminal standard of proof.[2]

In using the legal presumption of “innocent until proven guilty” (which, again, is a practical and real concept), courts—and society—should use it as a baseline. Because only the accused and accuser were present, the accuser can only prove his case through circumstantial evidence rather than using direct evidence.

In order to prove the first element of “touching which is harmful or offensive,” the accused enters into evidence camera footage of both parties entering a hotel room, both parties leaving the hotel room, and the accuser appearing to be in pain upon exiting the hotel room. The accuser also introduces evidence of text messages from the accused arranging for a meeting at the same time as the time-stamped footage. To demonstrate the second element of contact to the victim, the accuser relies also on the camera footage in addition to medical records dated the day after the battery demonstrating the afflicted wounds. Finally, the accuser introduces evidence of intent to cause harm in the form of text messages from the accuser apologizing, and the accuser calls an expert witness to demonstrate that the types of wounds inflicted had to be deliberate and not accidental. The accuser testifies to his version of the events as to all elements of the claim.

At this point, the accused could be said to have met the burden of proof and burden of production and the burden of production shifts to the accused. In this criminal case, the defendant must demonstrate reasonable doubt as to the claims by attacking the evidence that establishes any of the elements. In this hypothetical scenario, the identity of the perpetrator is not in question. But that is only one way an accused may demonstrate reasonable doubt. However, the accused presents another version of the facts, testifying that the accuser was heavily drunk and had a terrible fall inside the hotel room and introducing an expert witness that testifies that the injuries could have resulted from a fall. This testimony puts reasonable doubt in the second element of “contact with the victim.” The accused also presents multiple witnesses who testify that the accuser was drinking shortly before the incident in question. The accused also testifies that his text apology was related to another unrelated non-physical dispute that the parties were engaged in and this also speaks to the element of contact with the victim.

Note that generally, testimony is a viable form of evidence. Although it may come down to a “he-said, she-said” scenario, there are various ways to attack a witness’s or party’s credibility. In the above case, the accuser may attack the accused’s testimony and admit that he was drinking prior to the incident, but was not drunk enough to suffer a fall and the fact-finder (whether judge or jury) can review the video footage themselves to determine bodily signs of drunkenness.

Past Acts as Evidence

The accuser may also want to introduce evidence of three other accusers who have made the same or similar accusations. Note that, however, that others accusing the accused of the same or similar accusations have not proven their own claims using the above methodology. Generally, when multiple accusers accuse someone of the same or similar allegations, observers tend to believe the accusers. However, in the legal—and logical—sense, this evidence is weak. It does not prove that the accused is guilty in the particular instance in question. In other words, it may be true that an accused committed criminal battery against another victim but is free from guilt in the case at hand. Moreover, an accused may have valid defenses in the other cases and unless each accusation undergoes a separate analysis and due process, the accusations do not have sufficient merit to establish guilt. In the United States legal system at least, past crimes and other wrong acts can be used for other reasons such as demonstrating motive or modus operandi, but it is both impermissible and illogical to state that “even if an accused committed a past wrongful act one year ago, he is guilty of the same crime today.” Though it makes sense to take preliminary societal measures to protect future victims, to conclude without due process that an accused is guilty of ten crimes because there are ten accusers is both facile and reckless.

This principle is analogous to a woman alleging rape having her past sexual history used to discredit her claim of rape. When a woman claims she is raped, the case must be analyzed as to the specific event in question at the specific time and place, and her past sexual history is not relevant as to her consent in her claim (though it may be relevant to address ancillary issues). Although it is tempting to, for example, assert that a prostitute, who consents to sexual activity multiple times a day, consented to an instance in which she claims otherwise, her past acts do not speak to the specific incident in question. In other words, it is illogical to say “she consented ten times yesterday, therefore she consented today.”  Similarly, while it is tempting to assert that an accused has a propensity to commit a wrong because of past behavior (assuming such bad or illegal behavior is proven), the assertion does not speak to the incident and accusations currently presented. To allow for such evidence and logic leads to a slippery slope of considering evidence that does not speak to question presented.

Believing Victims

What about “believing victims”?  Believing victims should not mean that we should accept their allegations without question.  Rather, it should entail taking care of victims by taking their allegations seriously, investigating the allegations based on the victim’s experiences, and adopting a fair approach to ensure the accusations are not written off because of irrelevant facts, such as whether the accused is a well known or respected person. Believing victims also means not vilifying them and not accusing them of lying, even if their accusations are not proven in the court of law, unless there is evidence of defamation, which must be affirmatively proven.

Conclusion

Fact-finding and evidentiary rules in most legal systems are flawed.  Indeed, any attempt to prove a set of facts of which we do not have personal knowledge will be subject to some margin of error.  There will be some who are guilty who will nonetheless be found innocent, and vice versa.  This does not mean that we treat legal standards as simple formalities because we have already decided the facts. Nor does it mean that a legal finding excludes the possibility of error.  To that end, if our concern is evidentiary, then we should criticize the evidence. Importantly, this will be determine on a case-by-case basis. However, this cannot be done until the full course of due process has run.

 

 

 

[1] This example is based in the United States but the legal principles remain widely used in other legal systems as well.

[2] Civil cases have a lower standard of proof, requiring a “preponderance of evidence” in many situations. A preponderance is a body of evidence that is of greater weight or is more convincing than the evidence offered in opposition, evidence that as a whole shows that the facts asserted by the plaintiff and sought to be proved are more probable than not. By contrast, “beyond a reasonable doubt” is simply the finding that there is no reasonable doubt that the accused is guilty. Requiring a higher standard, such as a “firm belief” standard would likely make nearly every case impossible to prove short of the act committed with dozens of witnesses in broad daylight.

 

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Setting the Record Straight on Handling Allegations of Sexual Misconduct And Spiritual Abuse

Setting the Record Straight on Handling Allegations of Sexual Misconduct And Spiritual Abuse

Over the past few months, women have been more open about sexual advances and aggressions against them by men. Speaking more openly was (arguably) popularized with the #MeToo social media campaign initially started by activist Tarana Burke then popularized by actress Alyssa Milano in October 2017. The Muslim community certainly is not immune to these phenomena. It is important to bring attention to this and do our best to prevent harassment as much as possible, including with Muslims who have been dealing with allegations against religious figures.

With that said, when we are dealing with allegations of sexual violations and spiritual abuse, we need to be nuanced and accurate about the language and process we use. As a legal practitioner, one problem I see consistently, even from other attorneys, is the misuse and confusion of legal language and standards. Many commentators, for example, fail to differentiate between legal procedures and what constitutes, for example, allegations, indictments, [criminal] charges, civil suits, and verdicts. Some people speak of allegations or investigations as if they are indictments or verdicts. Not only does such framing set future claims up for failure, but if an accused is found to be innocent, our community will also be sent into a spiral of fear, hysteria, and cynicism. For example, in regards to Tariq Ramadan many have expressed that, during an accused’s investigation, Muslim organizations should wait until the “charges are dropped” before associating with the speaker again. However, no charges have been filed for that case. Yet the language surrounding the “investigation” by said commentators treated a preliminary investigation as though actual charges were filed and that the allegations were more than what have been presented. The end result is that accusations will be played up to be more than what they are and false information will be spread, such as that Tariq Ramadan was charged with crimes. This also effectively sets the standard once there is an allegation, we treat the accused as guilty through legal language (and misuse of it) and action.

The difference between an investigation and charges is important to understand. An investigation is merely research. The filing of criminal charges implies that there is at least enough evidence to proceed with prosecution. If the government is merely researching claims, then it has not conducted any official actions, particularly filing charges, that indicate there is sufficient evidence to proceed with a claim in connection with the allegations.

By way of example, we can walk through the criminal procedure. Bob accuses John of stealing. This is an allegation and can take place simply with words. Bob does not need to provide evidence for an allegation and allegations alone are not legally actionable in the criminal realm. Bob can formally accuse John by filing a police report, but Bob’s claims are still only allegations. The State will usually then conduct an “investigation” by talking to witnesses and collecting evidence. Again, at this phase there is not necessarily evidence to support Bob’s claim. Once an investigation takes place, the State may determine there is insufficient evidence and choose not to pursue the claim further. If there is sufficient evidence, formal charges by a district attorney may be filed and, depending on the nature of the claim and jurisdiction, John may be arrested and a grand jury may indict Bob. Indictment is the process by which a body of people, known as a grand jury, will determine there is sufficient evidence (“probable cause”) that John stole from Bob. John does not present a defense at this stage so an indictment does not take into account John’s side of the story. After this stage, the parties will enter into negotiations and potential plea deals. If the case goes to trial, the State will present its case and John will present his defense and a judge or jury will ultimately decide whether John is guilty or innocent.

In a civil context, Bob can simply sue John directly without much evidence (or, frankly any) and try to recover his damages. Civil suits require less evidence and has a lower standard of proof and it is very easy to file a lawsuit (the formal allegations) in a civil context.

The above certainly does not mean that everyone needs to be an expert in the legal process. Nor does it mean that the legal process is fool-proof and that we are bound in our decision-making based on a case’s legal status. The real takeaway is understanding the general concepts of what constitutes claims, the variety of ways claims look, and how we should treat accused parties based on what has come to light so far. For example, is it fair to treat an accused party, against whom no evidence has hitherto been presented, the same way as someone who has been indicted or otherwise formally charged? What about the same way as someone who has a verdict of guilty against him?

When people use language that treat investigations, charges, and verdicts as synonymous, we can no longer be clear as to the validity or strength of a claim. For example, if only allegations have been claimed, onlookers need to understand that this is not anything close to a verdict. Accordingly, we need to treat the situation based on how much evidence and the strength of evidence that has been presented thus far (whether we are in a formal legal context or not). As a standard, there is little ground to impose upon all institutions to boycott an accused religious figure simply based on allegations, even if one wants to hold that standard for oneself.

As a community, we understandably are seeking bright lines as to when and how abusers should be held accountable. After all, we just want to protect ourselves and our children from the dangers of this world. Unfortunately, in this matter bright lines do not further the cause and lead to hysteria and confusion. We would be better served by a balancing test. Contrast two cases where an accused has nothing but allegations leveled against him versus and accused whose allegations are accompanied by video evidence of the act in question. While both of the accused parties have a right to due process (again, whether through the legal system or communal mechanisms) and having their defenses presented, it is unjust to treat them equally in front of the community. However, in order to protect our community, we would be more justified in calling upon organizations for ceasing to hosting the latter accused individual because a balancing test would call for weighing the evidence already available with the harm that could result from waiting for presentment of his defense.

Because human behavior is complicated, balancing the interests of victims, accused parties, and our general community is challenging, specifically when dealing with allegations surrounding spiritual abuse and sexual violations. Every case is unique and while there are still pending investigations and processes, the way in which we approach each case will vary in order to balance the above-mentioned interests. We can only successfully maintain this balance by being accurate and consistent in our procedures and terminology.

 

To contact Danya Shakfeh, you can email her at danya@inshaykhsclothing.com.

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