There was a really interesting piece on NPR about Hillary Clinton’s email server. There were a few things I found fascinating, but one that stuck out is “innocent and ‘not guilty’ are not the same thing.” – and this is just such an important subtlety of our justice system that I don’t think you should be allowed to vote unless you can manage this concept. S
Let’s start with the historical perspective of guilt. The phrase “innocent until proven guilty” is quite new in the western legal world (assuming ~2500 years when you go back the legalism of Greece & Rome – and I limited to “western” because I can’t speak on Imperial Chinese or Japanese legalisms…) – it was part of the great American Experiment. A perfect example of how legalism worked pre-revolution is the Salem Witch Trials. IF a case made it to court, it was presumed the accused stood guilty. The burden of proof was then on the accused to prove innocence. Oh, and they didn’t get a lawyer. This is part of what made the Salem witch trials a mess – the accused people had neither the training nor the emotional fortitude (I expect I wouldn’t either!) to represent themselves well, much less how to prove themselves innocent of “she made me feel bad” and “I saw her walking around at night” accusations.
So, the founding fathers, in their bout with insanity from all prior systems, made the phrase “innocent until proven guilty” part of our world. And yes, “reasonable doubt” is a thing that is super important in criminal court! So, I will be mentioning a few times a thought-process on writing laws, but this is not going to be a piece on why/how/when we should change the laws. We’re going to work with the laws as they are written today because the point of this post is “innocence” or “guilt” when going to court. Now Let’s discuss something which is not Clinton’s [stupid] emails: rape.
Ok. Let’s get to the difficult stuff.
I think rape is one of those horrible, difficult topics that really does illustrate the “innocent until proven guilty” phrase. There is a lot of conversation about believing rape victims. There is a lot about justice. But the very first one I put my heels in and say “no. Absolutely not.” is the conversation which I’ve seen recently where people are saying a man should have to prove the woman said yes. Socially – sure, we can hold up this standard. Legally, I will fight it with every fiber of my being. Legally, a [man] is innocent until proven guilty. Now, where this becomes (to me) kind of fascinating is this: that legal definition of innocence is determined by how the law is written.
The Georgia Code defining rape is both very specific and very vague:
A person commits the offense of rape when he has carnal knowledge of
(1) A female forcibly and against her will; or
(2) A female who is less than ten years of age.
Anyone else see problems with this? I do. Several. According to this law, you could make an argument that it is impossible for a woman to rape a man. Now, some of that is a “pronoun problem” – they start with “a person” (non-gendered) but then “he” and “female” which are gendered. And 10. Really? An 11 year old…. eew. So much wrong with the way this… so very, very much… (ok, to be clear GA has a separate law dealing with statutory rape of anyone under 16. Still… it only makes this “under 10 thing” weirder in my world)
…I’m going to leave that little diatribe there because it illustrates how even I, untrained in the law, can immediately begin to pick something apart just because of the language used. It make writing laws damn hard. Without getting too side-tracked, rape has a pretty odd definition under the law.
This does mean that when a prosecutor is bringing someone (We’ll use hypothetical accused-rapist “Tanner”) to trial, they have to prove that Tanner (a) had carnal knowledge and (b) used forced to do so.
Now, I don’t know the precedence for how we define “force” – but I do know there have been a multitude of arguments around it. Does “force” mean the woman must feel her life is in jeopardy or can he threaten her reputation or even just “withholding affection” – does that constitute mental force? So, proving force and proving it then is rape… it’s difficult.
So – legally finding someone guilty… it is hard. Now, when someone is found guilty beyond doubt…. well then I think they deserve all the punishments which the justice system and society can enact to prevent the guilty party from ever doing it again. That is a different blog post.
Where we go:
This is where we [Americans] really have to buckle down into our seats and fight for our beliefs hard: how do we honor, tend & believe the victims of rape while still holding “innocent until proven guilty” as a truth? I don’t have an answer for this – I really wish I did because I struggle with it. A Lot. There is definitely something to be said for re-evaluating our definition of rape (how does a woman commit rape in Georgia?) and fighting to make changes to definitions of “force” and such. That isn’t something I’m prepared to tackle (beyond voting for people smarter than myself).
But I think if someone can’t at least articulate the importance that we don’t assume guilt then they shouldn’t be voting – I’m not sure they understand the difficulty involved in selecting someone to represent everyone (not just themselves). Before this concept, it wasn’t uncommon for the cry of “witch” to be used as a weapon. Since the woman had to prove she wasn’t a witch (which btw was basically impossible…) it was a great way for the powerful to remove “inconveniences” like a stubborn woman or a man who owns lands they wanted. I will fight with every breath in my body for this concept because it defends those for whom their assumed innocence is most valuable: the poor, the minority, the naive – and the powerless.
Do you know why false accusations are rare? Because rapists aren’t witches who have to prove their innocence. They are innocent until they are proven guilty. And it sucks when a slimy piece of filth can escape criminal justice, but that is also where they can receive social censure: just look at a certain lying Olympic swimmer. It’s hard to be an American.