Tuesday, September 23, 2008

Two fundamental criminal law principles that protect the innocent are nowhere questioned - except when it comes to rape claims

Two criminal law principles are so fundamental to our jurisprudence that they are nowhere seriously questioned -- except in one area.

Can you guess which area?

Some radical feminists suggest that these two precepts should be tossed onto a scrapheap of indifference and turned on their head when it comes to rape. And that is incredible to me because the day that we, as a society, stop accepting the validity of these prinicples is the day that we forfeit the right to hold out our jurisprudence as civilized, as just, and as fair.

I would suggest that it is not worth engaging in discourse with anyone who does not accept both of these principles:


The celebrated English jurist William Blackstone said that it is "better that ten guilty persons escape than that one innocent suffer." Commentaries on the Laws of England, published in the 1760s.

Our Supreme Court has, in various ways, underscored that Blackstone's formulation is one of the pillars undergirding our jurisprudence. Justice Douglas 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). Likewise, Justice Harlan stated: "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).

Some radical feminists question centuries of accepted wisdom by wondering aloud why this formulation should have any validity in the rape milieu.

But is the pain of a rape survivor in seeing a rapist go free in any sense comparable to the pain, the deprivation of liberty of an innocent man or boy imprisoned for decades? The question scarcely survives its statement. Of course it is not, not using any reasonable criteria.

While an individual is capable of doing terrible things to another individual, the state itself should never risk doing a terrible thing to another human being -- and being put on trial for a rape the evidence shows a man did not commit is one such horrible thing. Convicting a man of a rape he did not commit is worse. And that is why a wrongful acquittal is never, ever, ever the equivalent of a wrongful conviction, and to suggest otherwise is morally grotesque. The victim of a rape is not at risk of losing her liberty for decades if her rapist goes free. An innocent man imprisoned for a rape he did not commit, on the other hand, is destroyed, and the lives of his loved ones are often desrtoyed. To suggest that the state must be as vigilant in guarding against wrongful acquittals as wrongful convictions is the same kind of logic that dictators have employed throughout history as they ruthlessly imprison and murder the innocent to insure that the guilty are also snared. It is a monstrously barbaric position.

The reason the Blackstone formulation retains its validity is self-evident. It is the very the hallmark of a civilized society. Despite all their twisting and pounding, radical feminists who insist otherwise are to be dismissed out of hand. Their misandry is dangerous.


This one is so fundamental that most people would never suspect it is open to question in any respect: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 454; 15 S. Ct. 394, 403; 39 L. Ed. 481, 491 (1895).

Yet we sometimes see radical feminists suggest that when it comes to rape claims, the presumption should be turned on its head -- the sex act should be presumed to be rape. Not only is this suggestion repugnant to all civilized notions of fairness, it is especially nonsensical when it comes to rape for this reason: as we have seen countless times on this Web site, most rape claims involve acquaintances. It is very easy for a woman to recharacterize (more accurately, mischaracterize) consensual sex as rape. This is so because the very physical act that constitutes the alleged crime is precisely the same act that has been performed countless times every second of every minute of every day of every year since the beginning of time the world over -- as an act of love that is welcomed and often initiated by women, not a crime. But a woman can transmogrify this most fundamental human act of love into rape merely by branding it as nonconsensual, and that lie can, and does, destroy the life of the man or boy with whom she made love.

Thus, everyday experience informs us that consensual love, not rape, is the default mode -- the presumption -- for the sexual act. This, coupled with the fact that there is often no other evidence that a crime has been committed aside from the woman's testimony, and again it is self-evident why the presumption of innocence is crucial to this crime above all others.

P.S. To C.K. -- I have removed the citation to the hate site and will continue my practice of not citing such vile sites. Didn't mean to get you so angry.