A disturbing comment was added to one of our previous posts on this site ('Jon McCay's perilous defense of the 'Dear Colleague' letter: he refuses to acknowledge the risk of getting it wrong'), and it warrants our brief discussion. The post we wrote concerned comments made by Jon McCay, UNC's former Student Attorney General, defending the mandate of the Department of Education's April 4, 2011 "Dear Colleague" letter that lowered the standard of proof for sexual assault cases on campus to "preponderance of the evidence.” Mr. McCay conceded that “the new standard likely will result in more guilty convictions,” but we were dismayed that he seems to take it as a given that the new standard will not subject students to punishments they don't deserve. “That,” we explained, “is a conclusion that is unwarranted because it is only reasonable to conclude that the risk of wrongfully punishing innocent students is enhanced by lowering the standard of proof.”
We were careful to add: “No one disagrees that holding more rapists responsible for their misconduct is a laudatory goal. The problem is that McCay doesn't bother even to consider whether the new standard poses the risk of punishing innocent students. And it does.”
This morning, a comment was added to that post asserting, in the face of clear language to the contrary, that we “blink” at the fact that “[o]ne guy and his family can sleep at night knowing that justice prevailed, when 17 [sexual assault] victims and their families can't get any sleep because there is no justice and you thump your chest and break your arm patting yourself on the back because you stood on the wall for the 1.”
The comment is a grotesque distortion of our post and a dishonest attempt to reduce this blog to caricature. In our post, we neither blinked nor thumped nor broke anything. This blog has been a steadfast defender of rape victims, and we do not tolerate any comments that might trivialize their plight.
But the comment is disturbing on a more fundamental level. It evinces a shocking absence of appreciation for the principles of due process and fairness that have informed Western Civilization's jurisprudence for centuries. We are accustomed to such ham-handed attempts to demonize our defense of the wrongly accused, but, once in a while, it is well to demonstrate how wrong they are.
The comment’s 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 Abraham, as chronicled in Book of Genesis. When God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put the 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?
"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 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.
Punishing the innocent undermines public confidence about the way rape claims are handled. Judges, juries, and the people who decide college disciplinary hearings, would be all the more wary of punishing men for rape charges, even those who deserve to be punished, if they believed that the system allows the innocent to be punished, too.
A wrongful acquittal is a terrible thing, of course. But a wrongful acquittal is never, ever the equivalent of a wrongful conviction -- morally, legally, or any other way -- and to suggest otherwise is nothing short of 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 destroyed. It is a monstrously barbaric, and singularly un-American, practice.
The reason Blackstone's formulation retains its validity is self-evident. It is the very hallmark of a civilized society.