Friday, September 16, 2011

By law, persons accused of sex crimes are afforded fewer rights than persons accused of other crimes

We often mention Federal Rule of Evidence 413 as an example of a grave institutionalized injustice to presumptively innocent men and boys accused of rape (even the very mention of a court rule sounds boring --stay with us, it isn't).  Some would twist our concerns about this rule as the overblown hyperbole of a "rape apologist." It is anything but that, but -- and this is the crucial part -- we don't want you to take our word for it.

There is a report written by the United States Judicial Conference, quoted below, that spells out the possible injustices of this Rule to the presumptively innocent in words so chilling, that we need not characterize it, all we need do is quote it.

First, some background. Rule 413 (and related Rules 414 and 415) allow the prosecution to demonstrate a rape defendant’s alleged propensity to sexually attack women and children by introducing into evidence prior rapes he committed to show that the man on trial acted in conformity with this supposed character trait. This rule is an exception to the general rule: for no other crime is such "propensity" evidence admissible. The prior rape need only be proved by a preponderance of the evidence -- 50.000001%. The prior rape is admissible into evidence even if the man never takes the stand, and even if the man had been criminally acquitted of the prior sexual offense (despite the 5th Amendment right not to testify and prohibition against double jeopardy); and even if the alleged prior rape occurred many years ago, when a middle-aged man was a teenager or a young man in his early 20s (despite the loss, due to the passage of time, of any alibi evidence in his favor). This rule is also applicable to civil matters involving alleged sex torts. The effect of the rule -- indeed, the purpose of the rule -- is to lead the jury to conclude that since he did it before, he likely  must have done it this time, too. The jury might even want to punish him because it figures he must have done it one of the times.

The import of this is lost on a society where advocacy for persons accused of sex crimes is dismissed as "rape apologism."

But again, don't take the word of an advocate. Under the Historical Notes to Rule 413, you will find a report from the Judicial Conference regarding recommendations for amending the Federal Rules of Evidence. The Judicial Conference is a body statutorily authorized by 28 U.S.C. § 331. It is comprised of the Chief Justice of the United States, the chief judge of each court of appeals, a district court judge from each regional judicial circuit, and the chief judge of the Court of International Trade.  The Judicial Conference has five standing advisory committees, made up of judges, representatives of the Department of Justice, legal scholars, and leading practitioners. One of the duties of the Judicial Conference is to recommend changes for the rules of court that govern judicial proceedings, including the Rules of Evidence.

The Report of the Judicial Conference on proposed Rule 413 recommended against passage of the Rule in terms so strong that it should give pause to persons of good will regarding the treatment of presumptively innocent men and boys accused of sex crimes.

Congress enacted the Rule in spite of these strong recommendations.

The Report states, among other things -- and read this carefully:

". . . the new rules, which are not supported by empirical evidence, could diminish significantly the protections that have safeguarded persons accused in criminal cases and parties in civil cases against undue prejudice. These protections form a fundamental part of American jurisprudence and have evolved under long-standing rules and case law. A significant concern identified by the committee was the danger of convicting a criminal defendant for past, as opposed to charged, behavior or for being a bad person."

The Report notes that the Advisory Committee on Evidence Rules, comprised of judges, legal scholars, and well respected members of the bar, "was unanimous except for a dissenting vote by the representative of the Department of Justice" in objecting to the Rule. The Advisory Committee on Evidence Rules "considered the public responses, which included 84 written comments, representing 112 individuals, 8 local and 8 national legal organizations. The overwhelming majority of judges, lawyers, law professors, and legal organizations who responded opposed new Evidence Rules 413, 414, and 415. The principal objections expressed were that the rules would permit the admission of unfairly prejudicial evidence . . . ."

Further, the Report says, "[t]he Advisory Committees on Criminal and Civil Rules unanimously, except for representatives of the Department of Justice, also opposed the new rules. Those committees also concluded that the new rules would permit the introduction of unreliable but highly prejudicial evidence and would complicate trials . . . ."

Again -- Congress ignored all of it. And a number of states have enacted their own version of these rules.

I don't know what scares you, but that scares me.

But if that doesn't give you sufficient pause, then consider this: then-Senator Joseph Biden, found the new Rule repugnant. Biden stated:  "[Under these rules,] the prosecutor, instead of just having to deal with that witness and those facts, is able to go out and find anybody who is willing to say, 'By the way, when he was 21 years old when we were parked in the car he physically molested me,' without any proof of anything. Now, the people who might . . . have been around to prove that that was not the case, the couple you double dated with in the front seat of the car, are dead. But you have a witness, the one person sitting there, who says, 'But that happened to me 25 years ago.'" 140 Cong.Record S12,261 (August 22, 1994). Biden declared that he had "a moral, intellectual, and practical aversion" to this rule. Id.
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The balancing act necessary, on the one hand, to convict rapists, and on the other, to insure that the innocent are not punished for purported crimes they didn't commit, is sufficiently difficult without having shrill extremists, who would ignore the latter half of that equation, dominate the public discourse about rape. But that's exactly what has happened in America. Such extremists routinely dismiss, trivialize, and even mock, serious concerns about the injustices suffered by the presumptively innocent accused of rape by suggesting that such concerns are manufactured by so-called "men's rights advocates" bent on apologizing for rapists.

Nothing, of course, could be further from the truth, and that slander only underscores both the extremism and depravity of their advocacy.  It isn't just Rule 413 where the public discourse on rape has been warped by morally elite extremists unwilling even to consider the needs of the presumptively innocent. Some other examples of the ways men and boys accused of rape are treated differently than persons accused of other crimes:

Despite an avalanche of well-founded concerns, colleges are now required by law to adjudicate sexual assault and similar claims -- but no other offenses -- using the lowest standard of proof (preponderance of the evidence).  If a student is accused of stealing a small sum of money from another student, he or she likely will have a disciplinary claim adjudicated under a clear and convincing evidence standard (which is higher than a preponderance of the evidence standard). If a student is accused of the far more serious crime of rape, the claim against him must be adjudicated under a preponderance of the evidence standard, the lowest standard of proof in our jurisprudence.

The American news media defends publishing the names and photographs of presumptively innocent men merely accused of rape, despite the often terrible harm such publicity does to their reputations, but refuses to engage in any serious discussion about ending anonymity for rape accusers. See, e.g., here and here.  For the harm the media can do to innocent men, see this report in light of these facts.

Yet, advocacy for the men and boys wrongly accused is dismissed as "rape apologism" by the same persons who become apoplectic when they are reminded that Blackstone's Formulation (it is "better that ten guilty persons escape than that one innocent suffer") applies to rape claims as well as every other alleged crime, and who can't understand why anyone would be alarmed when feminists advocate literally making the sex act a presumptive crime whenever a woman cries rape by reversing the burden of proof and making the defendant prove consent. See here and here and here.

There is a vast difference between "rape apologism" and expressing well-founded concerns for the rights of the presumptively innocent. To conflate the two, as extremists are wont to do, is morally grotesque and disqualifies them as serious voices on issues about rape.