Friday, April 16, 2010

Blackstone's formulation revisited: most important post ever

". . . [T]he law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. Blackstone's Formulation

The great battle that has been raging for the past several decades between the advocates for the presumptively innocent and rape feminists was summed up in a sentence that appeared in a law review publication.  The sentence is so chilling, so thoroughly astonishing, that it should be cut out and pasted onto the refrigerators of every person of good will who cares about justice.  This sentence is not the hyperbole of a rabid men's rights advocate; it is a dispassionate assessment from a serious research paper in a respected law review publication: 

"The essential question is whether the system should be more inclined to protect innocent defendants, sometimes at the expense of women who have been date raped, or whether the system should be designed to ensure that more women's complaints result in convictions at the expense of some innocent men."

Note: Maintaining the Presumption of Innocence in Date Rape Trials Through the Use Of Language Orders: State v. Safi and the Banning of the Word "Rape," 15 Wm. Mary J. of Women & L. 193 (Fall 2008).

The fact that this question, posed in so cold and calculating a manner, is even seriously entertained is astonishing almost beyond description.  The article elucidates the debate: "Those in favor of protecting men accused of date rape tend to desire a fair trial, an even playing field, and the preservation of the 'innocent until proven guilty' standard. These are fundamental principles of our criminal system's traditional treatment of defendants, but in the modern context of rape some feel these principles have been willfully ignored or forgotten. The most surprising aspect of the issue of rape defendants' rights is that some feminists explicitly adhere to a belief that these defendants should not possess the above-mentioned traditional rights." 

In support of that last revelation, the author cites this incredible display of misandry, quoted in Prof. KC Johnson's landmark blog on the Duke Lacrosse non-rape atrocity:  "Wendy Murphy . . . said in reference to the Duke lacrosse rape case: 'Stop with the presumption of innocence. It doesn't apply [at] Duke,' as well as 'I'm really tired of people suggesting that you're somehow un-American if you don't respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you're a liar.' See Durham-in-Wonderland, . . . note 80@, at Dec. 31, 2006, 12:01 EST."  (See it here.)

It is crucial that everyone who advocates for the rights of presumed innocent -- who too often turn out to have been falsely accused -- be prepared to explain that this debate has been settled since the time of Abraham, as chronicled in Book of Genesis. God was deciding what to do about the evil in Sodom and Gomorrah, and Abraham put the question to him: "Are you really going to sweep away the innocent with the guilty?"  After some probing by Abraham, God made it clear he wouldn't destroy the guilty if it meant destroying the innocent with them. 

In modern times, this concept has been engrained in the DNA of our jurisprudence.  Some 350 years ago, 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 circa 1765.) This is called "Blackstone's formulation," or "The Blackstone ratio." Our Supreme Court, in various ways, has underscored that Blackstone's formulation is one of the pillars undergirding our jurisprudence. Justice 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). 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).

"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).

This principle is, in fact, so fundamental to our criminal jurisprudence that it is rarely challenged -- except in recent years, and only 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. These persons are speaking from an ideological zeal that has no place in our jurisprudence.

Is the pain of a rape survivor in seeing his or her rapist go free in any sense comparable to the pain of an innocent person deprived of his liberty for months, 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 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 an innocent man destroyed?  In fact, rape victims whose misidentifications lead to wrongful convictions often develop deep psychological trauma when they learn what they've done.  Actual rape victims have no interest in punishing an innocent male to atone for the perceived past sins of others of his gender. These twisted notions of retributive gender "justice" are hatched by members of the sexual grievance industry, who, incidentally, would have preferred Crystal Gail Mangum to actually have been raped rather than to allow three "privileged" white boys walk free in the Duke lacrosse case.

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 weeks reviewing the accounts on this Web site, because that's how long it will take you.  It is astonishingly common.

While an individual is capable of doing terrible things to another individual, including rape, the state itself should never fall to the level of a criminal and risk doing a terrible thing to another human being. Putting a man on trial for a rape the evidence shows he did not commit is among the most terrible things we, as a society, can do.  And all of us, in a sense, stand on Golgotha as silent witnesses, at least partially responsible for the crucifixion of the innocent.  But those who would sacrifice the innocent to snare the guilty commit the greater sin.  They are the ones pounding the nails in the hands of the lambs.

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 rape is multiple times greater than the average for all crimes; and (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 usually have diametrically opposing stories.

But 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. 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 and love him.

Accordingly, all of us must be prepared to battle even the whiff of a suggestion 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 Blackstone's formulation retains its validity is self-evident. It is the very hallmark of a civilized society.