Due process can be frustrating and painful, especially in cases of sexual abuse. The alternatives can lead to far worse.
We did not need to hear of accusations of sexual harassment against Judge Roy Moore to consider him unfit for office. When he was the chief justice of Alabama’s Supreme Court, he himself defied court orders. Some judge! He is not a person who respects the law. He is unfit for public office. Judge Moore asks, “why now?” with respect to the allegations of sexual abuse some 40 years ago, just recently leveled against him. Isn’t their timing politically motivated? he asks. Judge Moore, call it politics, if you like; but you have given ample reason for people to oppose you on grounds of character. You are ethically challenged. Your invocation of G-d at every opportunity is an embarrassment to believers.
That said, even those unfit for public office deserve their day in court, even when the alleged crimes are sexual abuse.
People guilty of sexual abuse deserve harsh punishment. That does not mean that in this country, the presumption of innocence is suspended for alleged crimes of sexual abuse. One remains innocent until proven guilty, notwithstanding the fact that this often entails inconvenience at best and profound pain at worst. Due process is the foundation of our legal system. Take that away and the country is in peril. Take that away and one may be left with a dictatorship, or witch hunts, or both. Take that away for egregiously obvious cases of criminal wrongdoing, and the defendants in all of the other, less obvious cases are at risk. Now that long held taboos against speaking up against the perpetrators of sexual abuse are blessedly falling by the wayside, it is critical that due process be upheld. Yes, innocent until proven guilty.
If one is convicted in a court of law of sexual abuse, the punishment might resemble a life sentence, since the requirement to register as a sex offender can follow one for life. That is just punishment, given the severity of the offense. However, if one is not convicted in a court of law, but rather in the court of public opinion, the chances of a life sentence are even higher. A person’s reputation is likely to be permanently ruined. Short of candid confession, that is not right.
By all means, drag every alleged perpetrator of sexual abuse into court. All manner of government and non-government entities have been lax in this. That, too, undermines the rule of law, and that, too, must end. And that said, the correct arena of accusation and adjudication, and then, if guilty, of punishment, is the legal system. Here is what is not correct: Demanding that an person bow to unsubstantiated accusations, step down from a public position or from a job, unless the person admits to the accusations or unless it is demonstrable or even likely that the person poses a clear and present danger. There are heinous molesters, and there are heinous liars. The demand for immediate, extra-legal punishment undermines due process, whether its workings identify molesters or liars; and whether the proportion of the former far outweighs the latter.
We are not suggesting that allegations of sexual abuse not be reported, but that citizens reserve judgment until a court of law renders its judgment.
The rule of “innocent until proven guilty” was not devised out of a rose-colored view of humanity. It was not devised out of the view that most people who are criminally charged are innocent. It was devised to protect the innocent, whatever their proportion. Nor was it devised to deny the reality that some cases are obvious. Some people are obviously guilty. Terrorists caught in the act, for example. Yet, the presumption of innocence is retained for the safety of all; that is, for the safety of those who are accused but not guilty. The presumption of innocence can indeed create an imbalance, a coddling of the guilty, at public expenditure in both funds and time taken up in the judicial system. There are prices that society pays for the principle of due process.
But pay them we must — whether the defendants are accused of sexual abuse, of terrorism, of exorbitant Ponzi schemes or of lesser crimes — because the alternative is immeasurably worse. Under dictatorships, yes, the obviously guilty are summarily dispatched. It is efficient. But the innocent are also summarily dispatched — often in the thousands and the hundreds of thousands. A key characteristic of every dictatorship is the kangaroo court.
This is not to say that our judicial system is perfect; that, for example, the statute of limitations on abuse cases is realistic (on which more below), or that reforms in capital murder cases that drag on for decades are not in order. Justice delayed can indeed be justice denied. But the opposite is also true: Justice foreshortened —trial outside the judicial system, trial in the court of public opinion —is justice denied. Maybe not for a particular, flagrant, outrageous criminal, but surely for the great preponderance of citizens, any one of whom can be suddenly subject to public calumny. Everyone deserves a defense in a court of law, not on the internet or in the newspaper.
Assuming that every accusation against Alabama’s Roy Moore or Colorado’s Steven Lebsock is true, let them be proven in a court of law. As we say, we believe Judge Moore is unfit for public office in any case, but if the final arbiter of the accusations of sexual abuse against him is the court of public opinion, this paves the way to become outraged at some future subject of public attack who is innocent.
Given the deep stain on the soul imprinted by sexual abuse, we believe that the statute of limitations should be drastically revised and lengthened, and, in the most severe cases, such as rape and the abuse of minors, be eliminated altogether. Minors who have been abused are unlikely to speak up (or even to recognize the abuse committed against them) for decades. And so, the current, unreasonably short statute of limitations for sexual abuse may justify outrage against Roy Moore. But if outrage becomes the ultimate court, consider that someday the price may be equally believable — yet false — charges against you.
Beloved country, beware. The response to the inevitable limitations of due process should be frustration and, where possible, reform of the system. The response should not be reflexive, extra-judicial conviction. No system is perfect. But the best system throughout history yet devised is based on due process.
Copyright © 2017 by the Intermountain Jewish News
