Wednesday, May 9, 2012

Barbaric: It is 'worth the risk' to punish innocent college men in order to nab more sex offenders

The University of Maryland's student newspaper is running a story today about how the university lowered its standards for finding students guilty of sexual misconduct earlier this semester, in compliance with new federal "Dear Colleague" mandate. The story includes this stunning quotation: "[F]reshman electrical engineering major Steph Winter said letting someone guilty of a serious crime go unpunished would be more harmful than finding an innocent person guilty. It’s obviously one of the big side effects, if it could result in an innocent person being found guilty,” she said. “But I think sexual assault is such a big issue that it’s worth the risk.”

This sentiment flips on its head a long-settled principle of law famously expressed by the celebrated English jurist William Blackstone: it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.)

In fact, the debate about whether it is just to punish the innocent in order to insure that the guilty are punished has been settled since the time of the Book of Genesis. The Bible recounts that when God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put this question to him: "Are you really going to sweep away the innocent with the guilty?" After repeated probing by Abraham, God made it clear he would not destroy the guilty if it meant destroying the innocent with them.

In modern times, "Blackstone's formulation," or as it is sometimes called "The Blackstone ratio," has been imprinted on the DNA of our jurisprudence.  Our Supreme Court, in various ways, has underscored that it is one of the pillars undergirding our jurisprudence.

Justice William O. Douglas, a liberal icon for much of the 20th Century, stated: "It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest." Henry v. United States, 361 U.S. 98, 104, 80 S. Ct. 168, 172 (1959).


Justice Harlan once wrote: "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)(Harlan, J. concurring).

Somehow, this formulation has been cavalierly turned on its head in the current debate over the "Dear Colleague" letter.


Is the pain of a rape survivor in seeing his or her rapist go free in any sense comparable to the injustice inflicted when the state deprives an innocent person of his liberty? The question scarcely survives its statement.

"Terrible as it is for a victim to see a rapist escape punishment, it is far, far worse for an innocent person to be convicted of a sex crime." Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, S. Taylor, K.C. Johnson (2007).

Take, for example, Dwayne Dail, who was convicted of a rape he did not commit as a teenager and spent the next 18 years in prison. While in prison Mr. Dail was repeatedly and brutally victimized by the same crime that he, himself, did not commit. His life was shattered, and it is fair to assume he will never be whole after his unspeakable ordeal.  Can anyone seriously assert that the pain of the rape victim in Mr. Dail's case was in any sense lessened by having this innocent man destroyed?

Rape victims whose misidentification of their perpetrators lead to wrongful convictions often develop deep psychological trauma when they learn what they've done.  Actual rape victims have no interest in punishing the innocent and are often among the most vocal critics of false rape accusers because they know that every rape lie diminishes the integrity of every legitimate rape claim. I have put the question to one of the nation's most prominent victims of clergy sex abuse, and his unhesitating answer was that he hates false accusers because of what they do to real victims.

While an individual is capable of doing terrible things to another individual, including rape, neither the state, nor an institution of higher learning acting at the behest of the state, should ever fall to the level of a criminal and reasonably risk doing a terrible thing to another human being. Convicting an innocent man of rape, or expelling an innocent man for rape, is not an acceptable risk in the name of nabbing more offenders. 


Beyond that, punishing the innocent undermines public confidence in the way rape claims are prosecuted. This not only works an injustice to the wrongly accused, it does no favors for rape victims. When juries and the people who decide college disciplinary hearings believe that the system allows the innocent to be punished, they are all the more wary about punishing men and boys for rape charges, even those who deserve to be punished.

A wrongful acquittal is a terrible thing, of course. But a wrongful acquittal is never, ever the equivalent of a wrongful conviction, and to suggest otherwise is morally grotesque.

Dictators throughout history have justified the ruthless imprisonment, torture, and murder of the innocent to insure that the "guilty" (who always happen to be their enemies) are vanquished. It is a monstrously barbaric -- and, we might add, singularly un-American -- practice.

The reason Blackstone's formulation retains its validity is self-evident. It is the very hallmark of a civilized society.