Monday, November 19, 2012

The 'beyond a reasonable doubt' standard of proof is the reason for the rape problem? Seriously?

The ignorance is appalling, and more than a little tiresome.

Katelyn Sack, a writer for the UK Guardian's blog, has the American college rape problem all figured out, so she thinks. Among her other off-the-mark epiphanies is the following indictment of our criminal jurisprudence: "This 'beyond a reasonable doubt' standard reduces the likelihood to a single-digit percentage chance that a rapist will be convicted and sentenced to prison."

Wait, wait, wait. We see comments like this so frequently that we probably don't even think about what they mean. What Sacks is saying is this: because the standard of proof makes it difficult to get a conviction in a rape case, if you have 100 rapists, less than 10 of those rapists will be found guilty.

Do you see what she does? She assumes they are all rapists to begin with. The "beyond a reasonable doubt" standard of proof is their "get out of jail free" card, a technicality that makes it almost impossible for victims to get justice.

Sack's assertion is beyond appalling. Does the standard of proof allow some rapists to go free? Undoubtedly it does. Blackstone's formulation is a hallmark of our criminal justice system. By the same token, even with the "beyond a reasonable doubt" standard of proof, are some innocent men and boys convicted of rape?  Spend a few weeks reading through this blog if you don't know the answer to that. The standard is "beyond the reasonable doubt" to insure, to the best of our ability, that only the guilty are punished. It must be wonderful to be Sack -- she doesn't need any standard of proof to know who's guilty--in Sack's world, the trial is over before it has begun because an accusation is as good as a conviction.

Sack's other points are scarcely worth responding to. The screwball centerpiece of her argument is this: ". . . universities deny otherwise available legal counsel to students involved in disputes with other students. If you get arrested for drunk-driving, most American universities offer you legal assistance. Not so if you get raped by another student – as in the majority of college rape cases. This policy reinforces survivors' ignorance about civil complaints. Because criminal rape complaints usually fail, civil complaints give survivors an otherwise-absent fighting chance in court."

Sack wants the university to provide to the services of a civil lawyer so that rape accusers can sue their rapists, and she has no concern that this is completely unrealistic. The cost of a civil lawyer to handle a claim of this nature in a major metropolitan area could easily run in the $50,000-$75,000 range, perhaps much more. Moreover, it is likely that most college rapists are essentially judgment-proof. It is for that reason that it is so difficult to attract qualified contingent fee counsel to handle these cases to begin with. If the rapist can't pay the judgment, the entire exercise is a waste of time and self-defeating. Beyond that, Sack doesn't bother to address the issue of whether the accused student is entitled to a free civil attorney to handle his defense and counterclaim. She likely hasn't even considered the possibility that the accused student might actually have a defense and a counterclaim, but if the school is going to pay for the accuser's costs, it should also pay for the accused's costs as well.  So double the legal fees. Oh, and by the way, on his counterclaim -- the accuser is as likely to be judgment-proof as is the accused.

I swear, we are regressing on these issues, and it's because the people who are addressing them in media outlets with big audiences are often ill-equipped to do so.

Sack's unfortunate blog post is here: