Two specialists in ethics have penned a horrifying piece that calls for the abolition of the "beyond a reasonable doubt" standard of evidence in sexual assault cases. They insist that a preponderance of the evidence standard is sufficient.
You see, it's sometimes difficult to tell if sexual assault occurs because it "is often physically indistinguishable from consensual sex." Most rational people think this is a sound basis for insisting on processes that insure the innocent are not convicted of crimes they did not commit. Not Christopher Wareham and James Vosis. They acknowledge that the harms to the falsely accused can be "severe." They seem think the harms of a false acquittal are worse, so they are willing to allow some innocent men to suffer for the purported greater good. They want to see the standard of proof drastically reduced to "preponderance of the evidence" in sexual assault cases. Their plan literally would invite convictions even where jurors have a reasonable doubt as to guilt. Jurors would be told to convict if there is only a 50.00001 percent likelihood of guilt.
This proposal is morally grotesque on every level, and it 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 long-settled in civilized societies: it is not just. Even the Book of Genesis 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 American jurisprudence. Our Supreme Court has underscored that it is one of the pillars of 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).
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? With all due apologies to the earnest Messrs. Wareham and Vosis, 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 he was wrongly convicted of. His life was shattered. 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 misidentifications 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--none whatsoever--and they 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.
While an individual is capable of doing terrible things to another individual, including rape, the state should never fall to the level of a criminal and encourage jurors to risk doing terrible things to innocent men and boys.
Imagine, for a moment, the cavalcade of horror stories about wrongful convictions that would crop up in the news every day if this were the rule. The innumerable injustices soon would undermine public confidence in the way rape claims are prosecuted. Aside from the blatant, horrifying, unacceptable wrongs to the falsely accused, such a standard would do no favors for rape victims. When juries believe that the system invites the innocent to be punished, they are all the more wary about punishing even those who deserve to be punished.
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, singularly unAmerican--practice. The reason Blackstone's formulation retains its validity is self-evident. It is the very hallmark of a civilized society.
The sexual grievance industry has used our college campuses as laboratories to see if they can get away with branding men "rapists" using the preponderance standard. They got away with it there, now they want to formalize and institutionalize hostility to the wrongly accused in criminal courts. We knew this was coming. Will society allow them to get away with it? We don't know--but thus far, they've gotten pretty much everything they've asked for.