Thursday, September 26, 2013

Newspaper wants prosecutors to roll the dice and charge questionable rape cases

The Casper Star-Tribune wants police to charge he said-she said rape cases where no one know can possibly know with reasonable certainty what happened except the parties involved. The paper says it doesn't matter if the prosecution thinks it can win, or whether the prosecution wins or loses after the charge is  brought, "the more cases that get covered in the media, win or lose, the better the message to the public that this is an issue that needs serious attention."

The Casper Star-Tribune is advocating nothing less than a morally grotesque witch hunt. It is Salem, 1692 in Wyoming. But don't believe us, read it for yourself here.

A prosecutor's job is to do justice, and that means more than just getting convictions. The prosecutor is the gatekeeper of justice who should only bring charges, as Prof. Bennett L. Gershman 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, but invites miscarriages and the possible conviction of an innocent defendant.

The Casper Star-Tribune's advice, if followed, likely would nab more rapists. But it also runs the unacceptable risk of nabbing more innocent men and boys. It is likely that the paper is not familiar with Blackstone's Formulation, and every member of its editorial team should be required to study it.

Beyond that, the paper should be excoriated for fanning a public outcry. Prof. Mark A Godsey of the Innocence Project has said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."

And, of course, by pandering to base law and order sensibilities, the newspaper does no favor to rape victims. When the public believes that the system is not adequately safeguarding the innocent, when the public believes that prosecutors are intent on "rounding up the usual suspects" just to say they did, jurors are all the more wary about convicting men and boys accused of rape even when the evidence supporting guilt is compelling. While the public insists on harsh punishment for rapists, it does not tolerate a system that blithely allows the innocent to be destroyed. If we want to take sexual assault seriously, we need to take seriously our obligation to protect the innocent.