The Artifice of the Rule of Law

It will not have escaped the notice of many that men and women tend to differ in their opinions on many matters, for example on the jurisprudence of rape. Women, however liberal or lenient they may be in their attitude to other crimes, however much they disbelieve in principle in retributive justice, tend to be not only punitive with regard to rape but (at least nowadays) to favor the relaxation of the rules of evidence in cases of rape and other sexual crimes. Men, on the other hand, believe that rape must be proved in the same way as any other allegation must be proved.

The subject came up at a dinner party that I was at last night. This was because there have recently been several well-publicized cases in Britain of minor celebrities charged with sexual crimes, up to but not all including rape, some of them allegedly committed four decades ago or more. A disc jockey had just been acquitted on twelve such charges, and the jury had been unable to agree about two others. He has been ruined financially, subjected to horrible publicity for eighteen months, and still faces the possibility of retrial on the two charges on which the jury was unable to come to a verdict. He has, of course, no redress, in the event of total acquittal: that is to say de jure acquittal. His reputation is de facto ruined whatever happens.

I remarked on the intrinsic difficulty of proving allegations so long in the past in the absence of forensic or other evidence. I had rather supposed that my remark was self-evident, banal rather than controversial, but it proved not so. The women said that the fact that there were so many allegations all at once against the man, all of a similar nature, made it highly likely that he was guilty, and indeed went to establish that he was. Needless to say a discussion ensued.

The arguments in favor of a relaxation of the rules of evidence in such cases were several. First there was the nature of the crimes themselves. They were so uniquely serious that they affected their victims adversely for the rest of their lives. Second there was the extreme reluctance, for psychological reasons, of victims to come forward with their allegations, such that if they did come forward, even many years later, there must be a presumption of their truthfulness. Third there was the historical indifference (or worse) of the police and criminal justice system towards sexual crime, so that some kind of compensatory severity was now due. All these arguments seemed to me false and even dangerous if turned into doctrine.

No one can doubt the potential severity of the effects of serious sexual crimes, but other crimes may have effects just as grave. Vicious but unpredictable attacks for reasons other than sexual may profoundly affect their victims’ attitude to life and render them intensely fearful for the rest of their days, to say nothing of the physical consequences of such attacks. There is no reason on this basis, then, to treat sexual crimes differently from others. That rape is a crime so serious that it ought, when proved, to be punished severely is so obvious that it hardly needs argument; but that is not to say that it is so serious that it need not be proved by the normal criminal standard; that the civil standard of proof, for example, more likely than not, should apply to it, or even that there should be a presumption of guilt in such cases.

The reluctance of people to bring allegations cannot count as evidence of their truth, nor can the fact that many similar allegations are made simultaneously, or at least within a short period, often many years later. Similarity of allegations may make them more likely to be true, but cannot in itself prove them true or be made a presumption of truth. Conspiracies do exist and people can, quite innocently, be induced to remember what did not happen, or misinterpret what did happen. I remember the case of a man charged with the rape of two women, who was not only not proved beyond reasonable doubt to have committed them, but was proved beyond reasonable doubt not to have committed them. Two false allegations, however similar, do not equal one true allegation. And system in crime, that is to say the proof of culpability by similarity of repeated crimes, can only be used where the guilt of the culprit has been proved in the first place. System is proof of guilt only where guilt has otherwise been established.

The no smoke without fire argument is extremely primitive jurisprudence, returning us to the middle ages; and I have often been frustrated in murder trials by the inability to introduce evidence that the accused is a nasty, violent man, precisely of the kind to commit the offense, that would undoubtedly influence the jury in its determinations. But the man in the dock is accused of specific acts, not of being a bad man in general of the kind whom we all love to hate. It is, therefore, right that he should be protected against the introduction of prejudicial information (or unsubstantiated rumor) at the trial, for bad constructions can be placed upon almost any behavior and none of us would be free of imputation if accused of something.

Increased severity of punishment of wrongdoers cannot be used to atone or make up for past unjustified leniency. It is my opinion that burglars have long been dealt with too leniently by the English law, but I do not advocate them being now dealt with twice as severely as they deserve in order to compensate for those dealt with too leniently in the past. They are responsible for what they did, not for what the criminal justice system did.

Needless to say, my arguments were not persuasive, at least not in the sense of having persuaded those who disagreed with them in the first place. But they persuaded me of one thing: that the rule of law does not come naturally to the human mind, and that we are all susceptible to abandon it when our passions are engaged. Burning witches at stakes is much more natural.