Allowing a rapist to go free is never as wrong as punishing a man for a rape he didn't commit

In ways too numerous to mention, members of what can aptly be called the sexual grievance industry seek to chip away at the rights of presumptively innocent men and boys accused of sexual crimes in the interest of waging a "war on rape."  They justify their efforts by minimizing the problem of false rape accusations and trivializing the harm to the falsely accused.

This attitude, expressed with seemingly infinite invention, flips on its head the long-settled principle famously expressed by the celebrated English jurist William Blackstone, who said 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 settled since the time of Abraham, as chronicled in Book of Genesis. When God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put the 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 our jurisprudence.  Our Supreme Court, in various ways, has underscored that it 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). 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).

This principle is, in fact, so fundamental to our criminal jurisprudence that it is rarely even discussed, much less challenged.  Yet, brazen sexual assault advocates have worked tirelessly for decades to undermine it. Some of them openly question centuries of accepted wisdom by wondering aloud why this formulation should have any validity in the rape milieu.

These persons, of course, 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 injustice inflicted when the state deprives an innocent person of his liberty? 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 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 this innocent man destroyed?

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 the innocent and 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.

But the feelings of actual rape victims are in stark contrast to the sentiments of members of the sexual grievance industry who, too often, are motivated by twisted notions of retributive gender justice.  Too many would serenely tolerate the punishment of an innocent male to atone for the perceived sins of others of his gender.  Of course, determining questions of guilt and innocence on the basis of one's birth class has no place in an advanced society.

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 reasonably risk doing a terrible thing to another human being. Charging a man or boy for rape on the basis of doubtful evidence is among the most terrible things that we, as a society, can do.

A wrongful acquittal is a terrible thing, too, of course. But a wrongful acquittal is never, ever the equivalent of a wrongful conviction -- morally, legally, or any other way -- and to suggest otherwise is nothing short of 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 or boy imprisoned for a rape he did not commit, like Dwayne Dail, is often destroyed by the experience, as are the lives of his loved ones, including the women and children who depend on and love him.

Dictators throughout history have justified the ruthless imprisonment, torture, and murder of the innocent to insure that the "guilty" -- who usually happen to be their enemies -- are destroyed.  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.