Wednesday, December 14, 2011

The central question posed by this blog that is routinely ignored by our detractors

The vast majority of criticisms leveled against this blog are smug, often profane, attributions of misogyny by extremists whose PC metanarrative finds a peculiar correlation between evil and gender. They invariably support their censure of us with evidence that makes gossamer look like armor plate, and the absence of sophistication in their rants underscores the reasonableness of both our positions and our advocacy.

Our detractors studiously avoid answering -- because, frankly, they don't know enough about the area to answer -- the central question posed by this blog. It is the question that Professor Richard Klein astutely posed: ". . . have the reforms that were designed to counter . . . inequities [in rape law] gone too far? Have the Due Process rights that must be afforded any individual charged with a crime been sacrificed when the charge is rape? Has the pendulum swung so far as to create a system of policies and laws that are fundamentally unfair?" An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 Akron L.Rev. 981, 1052 (2008).

Professor Klein gives a clue about the approach that should be employed to answer this question: "To fully answer that question, one must look at the reforms in their totality. It might well be the case that any single legislative reform was justifiable, but have the odds against the defendant become inappropriate and unjust in a criminal justice system that champions its unique place in the world because of its protections for those charged with crime?"  Id. at 1053. Professor Klein singles out several examples where the pendulum has swung too far, including the fact that in some jurisdictions, an accused can be convicted even if he had a reasonable belief that the woman consented, and even if there was no indication whatsoever of the lack of desire for the intercourse. Id. at 1053. By any measure, to imprison a man for many years because he was not a mind reader is absurd.  (A hint to our detractors about effective advocacy: you'd have far more credibility if you'd at least attack applications of the law that are manifestly unjust, even if they happen to favor the accused.)


In Scotland right now, the debate about this pendulum -- the balance between nabbing rapists and insuring that the innocent aren't punished for crimes they didn't commit -- is being played out over the question of corroboration. See here. Bill McVicar, convener of the criminal law committee at the Law Society of Scotland, told MSPs he has ''concerns'' about proposals to abolish Scotland's centuries-old requirement for corroboration. The corroboration rule, which has been abolished in the United States, ensures at least two separate sources of evidence are required for a successful prosecution. Mr McVicar said he fears scrapping the rule will lead to more miscarriages of justice. Read the following carefully, because it frames the issue in a way that we rarely hear in this country: Mr McVicar said: ''This seems to be moving to a society where we are prepared to countenance that the innocent be convicted, just so that we can make sure we get the ones that are guilty."

In contrast, Fiona Raitt, professor of evidence and social justice at Dundee University, wants to scrap the corroboration rule -- because it would help convict sex offenders. Elsewhere Raitt has said that abolishing corroboration would address "a long-standing deficiency in Scots law, namely the lack of a satisfactory response to women and children who bear the brunt of sexual offences."  See here. Raitt doesn't address the potential harm to innocent men and boys posed by the change in law.

In the United States, the abolition of corroboration came about as part of a concerted effort of women's advocates in the early 1970s to convince the public that rape law was male oriented, and that men's fears of false rape claims were unfairly trumping women's rights to be safe from rapists. One reform after the next was then adopted to keep women safe from rapists and to encourage more women to report their rapes. We are constantly told that none of these reforms have worked, but we keep funding the same victims' advocates who have never been successful.

We are not singling out the abolition of the requirement of corroboration as a measure that was necessarily improper. It must be conceded that it does seem unjust on its face that just one crime, rape, required evidence beyond the accuser's word.  But we also appreciate that rape is different from other crimes.  (Often the only residue of it is the same residue as an act of love performed somewhere every second of every day since the world began. Put it this way: women do not, as a matter of course, consensually hand over their purses to robbers. Women do, however, as a matter of course, consensually sleep with men.)  Moreover, since the elimination of corroboration in the U.S., we have seen far too many trials over "he said, she said" rape claims where the prosecutor could not possibly have been convinced of the accused's guilt to "a moral certainty," as Prof. Bennett L. Gershman put it. Justice should not have a "roll the dice and hope you get lucky with a conviction" flavor.

The cumulative effect of these reforms, or the combination of some, warrants both concern and adult discussion that goes far beyond puerile accusations of "rape apologists." Take, as but one example, the combination of the effort to engorge or eliminate statutes of limitations combined with the "no corroboration" rule. Again, in Prof. Klein's words: ". . . since corroboration is no longer required, a conviction could result from the unsubstantiated claim of the alleged victim that a rape had occurred in the distant past." Klein, supra at 1033.

And if none of this gives you pause about the dangers of eliminating the requirement of corroboration, ask yourself what might have happened in this case if there was not video to clear the innocent man: http://www.youtube.com/watch?v=KgxwPU0W-Wg. And then ask yourself this: by eliminating the requirement of corroboration, haven't we just flipped the law--now, in a "he said, she said" rape claim, for a man to have the charges against him dropped, doesn't he need corroborating evidence, such as a video? And is that just on any level?