When it comes to the subject of false rape claims, every feminist becomes an actuary. She examines the cooked statistics promulgated by the sexual grievance industry, rejects contrary statistics due to imaginary flaws in “methodology,” and declares that the risk to innocent men and boys is both de minimis and socially acceptable compared to the purported far greater harm of actual rape. This gives her moral license to trivialize the harm to the falsely accused, and to see those victimized by rape lies as less than human.
This attitude, which is manifested with seemingly infinite invention, flips on its head the long-settled principle famously expressed by the celebrated English jurist William Blackstone, who said it is “better that ten guilty persons escape than that one innocent suffer.” (Commentaries on the Laws of England, 1765.)
The debate about whether it is just to punish the innocent in order to insure that the guilty are punished has been settled since the time of Abraham, as chronicled in Book of Genesis. When God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put the question to him: “Are you really going to sweep away the innocent with the guilty?” After repeated probing, God made it clear he would not destroy the guilty if it meant destroying the innocent with them.
In modern times, “Blackstone’s formulation,” or as it is sometimes called “The Blackstone ratio,” has been imprinted on the DNA of our jurisprudence. Our Supreme Court, in various ways, has underscored that it is one of the pillars under-girding our jurisprudence.
Justice Douglas, a liberal icon for much of the 20th Century, stated: “It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.” Henry v. United States, 361 U.S. 98, 104, 80 S. Ct. 168, 172 (1959). Justice Harlan wrote: “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)(Harlan, J. concurring).
This principle is, in fact, so fundamental to our criminal jurisprudence that it is rarely even discussed, much less challenged. Yet, brazen sexual assault advocates have worked tirelessly for decades to undermine it. Some openly question centuries of accepted wisdom by wondering aloud why this formulation should have any validity in the rape milieu.
Is the pain of a rape survivor in seeing his or her rapist go free in any sense comparable to the injustice inflicted on an innocent person deprived of his liberty? The question scarcely survives its statement.
“Terrible as it is for a victim to see a rapist escape punishment, it is far, far worse for an innocent person to be convicted of a sex crime.” Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, S. Taylor, K.C. Johnson (2007).
Take, for example, Dwaye Dail, who was convicted of a rape he did not commit as a teenager and spent the next 18 years in prison. While in prison Mr. Dail was repeatedly and brutally victimized by the same crime that he, himself, did not commit. His life was shattered, and it is fair to assume he will never be whole after his unspeakable ordeal. Can anyone seriously assert that the pain of the alleged rape victim in Mr. Dail’s case was in any sense lessened by having this innocent man destroyed?
Rape victims whose misidentifications lead to wrongful convictions often develop deep psychological trauma when they learn what they’ve done. Many false accusers, such as Biurny Peguero Gonzalez, experience such unbearable guilt for the harm they’ve caused an innocent man or boy that it can only be relieved by recantation. Actual rape victims have no interest in punishing the innocent and are often among the most vocal critics of false rape accusers because they know that every rape lie diminishes the integrity of every legitimate rape claim.
But the feelings of those women are in stark contrast to the sentiments of feminists who dominate the public discourse about rape. Too often, they evince an indifference to the plight of the falsely accused that is motivated by twisted notions of retributive gender justice. Too many would serenely tolerate the punishment of an innocent male to atone for the perceived sins of others of his gender. Of course, determining questions of guilt and innocence on the basis of one’s birth class has no place in an advanced society.
While an individual is capable of doing terrible things to another individual, including rape, the state itself should never fall to the level of a criminal and risk doing a terrible thing to another human being. Charging a man or boy for rape on the basis of doubtful evidence is among the most terrible things that we, as a society, can do, and a jurisprudence that tolerates that is one bordering on pathology.
A wrongful acquittal is a terrible thing, too, of course. But a wrongful acquittal is never, ever the equivalent of a wrongful conviction — morally, legally, or any other way — and to suggest otherwise is nothing short of morally grotesque. Why? The answer is simple: the victim of a rape is not at risk of losing her liberty for decades if her rapist goes free. But innocent men or boys imprisoned for rapes they did not commit, like Dwayne Dail, are often destroyed by the experience, as are their loved ones, including the women and children who depend on and love them.
Dictators throughout history have justified the ruthless imprisonment, torture, and murder of the innocent to insure that the “guilty” — who usually happen to be their enemies — are destroyed. It is a monstrously barbaric, and singularly un-American, practice. The reason Blackstone’s formulation retains its validity, even when it comes to rape claims, is self-evident: it is the very hallmark of a civilized society.
