Frederic D. Bright, the prosecutor who decided that charges were not appropriate in the Roethlisberger case, has been largely commended for doing the right thing under the glare of national publicity.
Prosecutors often have great difficulty in deciding whether to bring, or not bring, charges. It is not always an easy question. A prosecutor is the gatekeeper of justice who should only bring charges, as Prof. Bennett L. Gershman has described it, when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt. To bring charges when there is any less certainty does not fulfill the prosecutor's duty to do justice (a duty that Mr. Bright unequivocally acknoweldged, to his great credit, when he announced he was not bringing charges), but invites miscarriages and the possible conviction of an innocent defendant.
Comments in a Pittsburgh newspaper this past weekend by Ron Freeman, who teaches Forensic Investigations at a Pittsburgh university, are troubling. It does not appear that Mr. Freeman is an attorney; rather, he previously served as commander of the Major Crimes unit for the Pittsburgh Police. Mr. Freeman said: "I was shocked they didn't file charges. I listened to the entire press conference [conducted by Mr. Bright], and just based on that I felt he should have filed charges," said Mr. Freeman. Freeman noted that most of what he knew of the evidence came from Mr. Bright's news conference Monday. (Here is my report of the press conference, quickly prepared while the press conference was progressing. We've also discussed the evidence from the Roethlisberger case here and here.)
Comments of other legal experts do not agree with Mr. Freeman, but rather mirror our take on the evidence, especially about how the accuser lacked credibility because her various statements were a moving target. Al Lindsay, a respected former federal and state prosecutor in Western Pennsylvania, said: "The reason not to seek prosecution, . . . 'is he's stuck with [the accuser's] statements' that were at first unclear, because of her intoxication, about whether she had been raped. You have to have her testimony, and it would have been very marginal. Because of her extreme intoxication she could not recall [initially]. She wouldn't have been a good witness, and what is significant is she's the only witness [to what may have occurred]." Likewise, longtime University of Georgia law professor Ronald L. Carlson explained that a defense attorney "would have had a field day" with the accuser on the witness stand because of her level of intoxication and the varying statements she made.
Mr. Freeman, however, disagreed. Read the article for yourself here. His astounding, and frightening, logic should be troubling to anyone who is concerned for the rights of the presumptively innocent. He said that "oftentimes victims of rape are intoxicated because being in that condition makes them vulnerable to sexual assault. It's understood there's a history of people taking advantage of women who are intoxicated. It's a pattern people use to their advantage."
We could write a small book to demonstrate the misandry, and the injustice, underlying Mr. Freeman's logic. It is well to note, for persons who haven't followed the case, that Mr. Roethlisberger did not use alcohol as a date rape drug. The accuser drank of her own free will, and the accuser and accused engaged in sexual banter before the incident. To implicitly deny the accuser's free moral agency, and to suggest she was an innocent lamb led to slaughter by a predatory male, is an insidious form of misandry that frequently plays a role in fomenting false rape claims.
Worse, to suggest that Mr. Roethlisberger should be charged not on the basis of the evidence but on the presumption that this case mirrors some purported historical "pattern" where "people" (let's be honest, Mr. Freeman, you mean "men and boys") take advantage of women who are intoxicated, is breathtaking. Taken to its logical extreme, any time a male has sex with a female who has had too much to drink (but not too much to be able to consent to sex), he must be presumed to have acted in accordance with this historical male "pattern" whereby intoxicated women are taken advantage of. This generalized historical "pattern," in and of itself, constitutes probable cause to charge a particular male for a particular allegation of rape, the particular evidence be damned
Excuse me, Mr. Freeman, but in this country we're not supposed to charge people for criminality based on historical "patterns," gender stereotypes, or "all males do" whatever. We're supposed to charge on the basis of the evidence specific to the case, and probable cause is supposed to be based on the specific facts at issue.
But wait, Mr. Freeman isn't finished: "He added that even if it is believed she would have had trouble on the witness stand, that shouldn't deter charges because police arrest suspects in child molestation cases even though children often make bad witnesses at trial. 'I think it should have been up to a judge or jury to decide,' he said."
There you have it. We bring charges when we shouldn't with child witnesses, so that justifies doing it with the other class of citizens that lacks free moral agency, women. The prosecutor isn't a gatekeeper; he has no duty to do justice, much less to only bring charges for which he is morally certain. The prosecutor is, in fact, within his rights to play Russian Roulette with the life of any male so long as a bad-witness-child-or-woman points the finger of guilt at him. The way Crystal Gail Mangum did to three young Duke lacrosse players, one of whom was at an ATM far away when he was supposedly raping her. So what if the prosecutor doesn't buy the accuser's story, or finds it incredible? Hey, maybe he'll "get lucky" and find some jury of random people off the street who will convict. And if an innocent man gets convicted -- hey, blame the jury! That's the price we must pay to wage the "more important" war on rape.
The reason this is as wrong, and as barbaric, as can be, Mr. Freeman, is that rape is too unspeakably serious a subject to play Russian roulette with the lives of innocent men and boys. Prosecutors have a responsibility not to jack up rape convictions but to further the cause of justice. Trying a man or boy on a charge that could send him to prison for years or decades on the basis of an untrustworthy witness contorts justice beyond all recognition. But that doesn't seem to concern you, sir.
Lady Justice weeps at your suggestion, Mr. Freeman. Your thinking does a grave disservice to the presumptively innocent everywhere, especially when it comes to rape claims.