Sunday, November 23, 2014

Rape, Witchcraft, and Civil Liberties

Fredrik deBoer:
Is “should there be less rape” a question of particular moral difficulty? Are people walking around saying “we probably shouldn’t try to reduce the amount of rapes happening”? No. Nobody is saying that. What some of us are saying is that in a country of hideous over-incarceration, with a ravenous police state and prison industrial complex, where we know the laws are never enforced equally, but are instead deeply unequal along lines of race and class, and where many police departments and prosecutors offices have routinely shown themselves to be racist, corrupt, or incompetent, attacking due process and contributing to the rush to prosecute and imprison is a terrible idea. That’s a debate we can have. That’s a debate with stakes. It’s an active moral question. “Should we reduce rape? Circle ‘Yes’ or ‘No'” is not. So which one do you want to spend your effort on?

I cannot understand smart liberal people who are so enamored with their own good intentions that they seem not to care at all about the potential for unforeseen negative consequences. I cannot understand adults who think that meaningful moral questions have black-and-white, simplistic, right-or-wrong answers. I just will never understand that.
This, to me, is the troubling thing about cries for tougher laws on sexual assault. I gather that many universities have a history of not taking accusations of rape seriously enough; that is a problem that should be fixed. But every time somebody argues that this or that crime is so terrible that we need to relax our standards of evidence and throw out protections for the accused or deny offenders any sort of second chance I think about witchcraft. In the 1400s European judges crafted the doctrine that witchcraft was a crimen exceptum, an exceptional crime, so diabolical and so difficult to prove by normal methods that ordinary rules of evidence had to be suspended to fight it. Many courts accepted much harsher rules for accused witches than others, allowing them to be jailed on the basis on anonymous accusations, held indefinitely without any evidence, tortured without limit, and so on -- for how else could Satan's assault on Christendom be repelled? Before it was over, at least 150,000 innocent people had been judicially murdered, most of them poor women.

To me the lesson is clear: we can never allow any more "exceptional" crimes. Not terrorism; not treason; not child abuse; not rape. Every person accused of anything is entitled to a fair trial; every thug no matter how vicious is innocent until proven guilty. For nothing a criminal can do compares to the horror that can be unleashed by the uncontrolled power of the state.

1 comment:

G. Verloren said...

Aside from the moral complications, there's also the simple practical logistics of it all.

A system that presumes guilt instead of innocence naturally favors those who can make the best show of innocence, regardless of anything else. This means those with the greatest resources to divert toward that cause, as well as those with the greatest incentive to prepare a defense in advance, are those most likely to be found "innocent".

Yet in the natural course of things, don't those who are truly innocent tend to be flustered and to respond poorly to accusations of extraordinary crimes, while those who are genuinely guilty of such cro,es tend have to have prepared alibis which they can recite cleanly and accurately, because they commit the crimes with the intention of being able to evade punishment?

I'm reminded of the Costa-Gavras film "Amen.", in which an honest German scientist who follows his conscience and attempts to expose the racial extermination programs from the inside meets with a terrible fate because he tells the truth poorly, while his ruthlessly amoral counterpart who cares only about self profit escapes all justice into a life of comfort provided by the "enemy" simply by lying convincingly.

Humans are terrible judges - hence the requirements of physical evidence, and a presumption of innocence which requires certainty beyond reasonable doubt. Justice cannot exist when courts reach decisions based on appearances and passions instead of logic and facts.