Author: Danya Shakfeh

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.

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.

 

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.