by Claude Opus 5.5
Apply a Rawlsian veil of ignorance: if you did not know whether you would be complainant, respondent or bystander, what rules would you choose?
John Rawls, in A Theory of Justice (1971), proposed a thought experiment for identifying fair principles. Imagine choosing the basic rules of society from behind a “veil of ignorance”, not knowing what position you will occupy: rich or poor, of whatever sex, race or talents. Because you cannot tailor the rules to your own advantage, you will choose rules that are fair to every position. Applied to the case behind these seminars, the veil asks us to design rules for handling allegations of sexual violence without knowing whether we will be the complainant, the respondent, a bystander, or someone else affected, such as a person wrongly identified.
Who is behind the veil?
First, we must identify the positions. They include: a person who has been sexually assaulted; a person who has not, but who is accused; a person who is accused and did it; a bystander who knew or could have known; a member of an organisation sanctioned collectively; a person wrongly identified in public; and a member of the wider community who relies on safety and fair institutions. A rule that is good for one of these positions may be terrible for another.
Rawls also argued that choosers behind the veil would be risk-averse about the worst outcomes, adopting what he called a maximin strategy for basic principles: choosing rules that make the worst-off position as good as possible. Critics such as John Harsanyi argued instead that rational choosers would maximise average expected well-being. Which approach one takes affects the rules chosen.
Rules about reporting and support
Behind the veil, one would want reporting to be easy and safe, because one might be a victim. Rules would ensure that complainants are taken seriously, given support, protected from retaliation and kept informed. One would also want a full and accurate record of the first account, to protect against misrepresentation. None of these rules seriously burdens any other position, so they would be chosen by maximin and average reasoning alike.
Rules about investigation
One would want thorough investigation, including interviews with all relevant parties, because one might be the complainant whose case collapses for lack of evidence, or the innocent respondent whose account is never heard. Investigation that seeks all relevant evidence benefits both.
Rules about the standard of proof
This is where positions diverge. A lower standard of proof helps a genuine victim but increases the risk of punishing an innocent respondent. A higher standard does the reverse. Maximin reasoning asks which worst case is worse: being assaulted and seeing no consequence, or being punished for something one did not do. Many people think wrongful punishment, especially imprisonment, is the graver worst case, which is one reason criminal law uses proof beyond reasonable doubt. For non-criminal sanctions with less severe consequences, the balance may shift, supporting a lower standard for interim protections and a higher one for serious sanctions like expulsion. Behind the veil, one might choose a graduated system.
Rules about publicity and naming
Behind the veil, one might be the person wrongly identified online, or the accused who is later cleared. One might also be a complainant whose case has been ignored until publicity forces action. Maximin reasoning would probably choose strong protection against pre-charge naming, combined with mechanisms that make public pressure unnecessary for complainants to be heard, such as independent review of decisions not to charge.
Rules about bystanders
One might be the victim whom bystanders failed to help, or a bystander who could have helped at little cost. One would want norms, and perhaps legal duties, requiring easy rescue, because the cost to a bystander of a phone call is small compared with the cost of harm to a victim. Rawls’s principles for individuals included a natural duty of mutual aid when it can be given without excessive risk or loss. Behind the veil, one would choose such a duty.
Rules about collective sanctions
One might be a member of a fraternity who was not present and did nothing wrong. Maximin reasoning would resist rules that impose serious penalties on such members. But one might also be a future guest harmed at a house whose organisation was allowed to continue despite misconduct. A rule permitting closure of chapters, while protecting individual members from personal sanctions, might satisfy both.
Assessing the result
The veil produces a set of rules broadly similar to those in many reform proposals: easy and safe reporting, accurate records, thorough investigation, graduated standards of proof, protection against premature naming, independent review, duties of easy rescue, and organisational accountability without individual collective punishment. Its value lies less in generating novel rules than in testing proposals for partiality. Rules that seem attractive only from one position, such as treating all allegations as proven, or treating the presumption of innocence as barring any institutional response, fail the test.
Conclusion
Behind a Rawlsian veil, one would choose rules that protect complainants’ access and dignity, respondents’ fair hearing and protection from premature condemnation, bystanders’ modest duties of rescue, and the community’s safety. Where positions conflict, as over the standard of proof, the veil supports graduated rules that match the risk of error to the severity of the consequence.