Thursday, January 1, 2009

It is better that ten rapists escape punishment than for one innocent man to be imprisoned for a rape he did not commit

As our readers know, this is among the few sites on the internet devoted exclusively to giving voice to the persons wrongly accused of sexual assaults and their unique interests. While this site is not intended to concentrate on victims of rape, that does not mean we minimize their experience in any manner. We do not.

But we need to be clear about one of our premises: As the celebrated English jurist William Blackstone said, it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, published in the 1760s.) This principle so fundamental to our criminal jurisprudence that it is rarely challenged -- except when it comes to rape. Some rape victims' advocates question centuries of accepted wisdom by wondering aloud why this formulation should have any validity in the rape milieu. I respectfully suggest that these persons are often speaking from the understandable pain of victimhood or from an ideological zeal that has no place in our jurisprudence.

Our Supreme Court has, in various ways, underscored that Blackstone's formulation is one of the pillars undergirding our jurisprudence. Justice Douglas, a titan and icon of liberals 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). 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).

Is the pain of a rape survivor in seeing a rapist go free in any sense comparable to the pain of an innocent man or boy deprived of his liberty for years or even decades? The question scarcely survives its statement. Take, for example, Dwayne Dail, who was convicted of a rape he did not commit as a teenager and spent 18 years in prison. While in prison Mr. Dail was 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 this ordeal. Anyone who thinks it is unusual for a man or a boy to be wrongly jailed for a rape he did not commit (and often a rape that did not occur) should spend several hours reviewing the accounts on this Web site.

While an individual is capable of doing terrible things to another individual, the state itself should never risk of doing a terrible thing to another human being . Putting a man on trial for a rape the evidence shows he did not commit is one such terrible thing.

A wrongful acquittal is a terrible thing, too, of course. And, yes, convictions for allegations of rape are lower than convictions of other crimes, but there are two principal reasons for this:

(1) As FBI statistics show, false reporting of sexual assault is fourfold greater than the average for all crimes. The Politics of Sexuality, Barry M. Dank, Editor in Chief, Vol. 3 at 36, n. 8.

(2) Most rape claims are of the acquaintance variety where there is no evidence as to what occurred except from the mouths of the accuser and the accused, and they often have diametrically opposing stories.

"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). A wrongful acquittal is never, 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. But an innocent man imprisoned for a rape he did not commit, like Dwayne Dail, is usually destroyed by the experience, as are the lives of his loved ones -- including the women and children who depend on him.

Accordingly, we reject, and cannot engage in discourse with persons who suggest, that a wrongful acquittal is the moral equivalent of a wrongful conviction. Dictators throughout history have asserted such moral equivalency as a pretext to ruthlessly imprison, torture and murder the innocent to insure their enemies are also snared. It is a monstrously barbaric -- and singularly un-American -- practice. The reason the Blackstone formulation retains its validity is self-evident. It is the very hallmark of a civilized society.