Our judicial system is based around proof; anyone accused is innocent until proven guilty. That burden of proof is high. The idea is that it is better for one hundred guilty persons escape than one innocent person should suffer. This is a very good ideal, and in most cases I am eager to find ways to be more merciful, with a greater eye to restoration and education rather than punishment. But where this ideal of the necessity of proof gets troubling is in crimes which by their very nature are private, are intimate, are difficult to prove.
When I heard that a colleague of mine had raped his exgirlfriend in grad school I thought, “Was she really raped, though? If she were raped, wouldn’t she tell the authorities, and seek justice? Just saying bad things about her ex doesn’t seem like the way to make things right.” It took me a while to listen to what was going on, and learn. What I didn’t know is that she was specifically advised by her therapist not to take the issue to court. She had dated her rapist in the past, and (as the therapist said) there’s not a jury in Virginia that will find him guilty. Even with a rape kit (DNA samples and all), even with photos of her torn flesh, there’s no way to meet the burden of proof. There is still an idea of rape happening in dark alleyways with masked strangers, not trusted friends, romantic partners, or authority figures, and it is hard to combat the cultural story of what rape is, especially when the other person in the court is saying, “that’s not true.” It is very, very hard to convince everyone that the victim is telling the truth and the perpetrator is lying, and so the price of going through the ordeal of seeking justice without hope of justice, was a price too high to pay.
Since then I’ve heard many, many of my friends and acquaintances’ stories of sexual abuse, assault and rape. I hesitate to add my voice to the mix, because my own experiences as the recipient of sexual harassment or touch I didn’t consent to seem pretty minor compared to those of many of the women (and men) around me. But I’ve been listening. And I’ve been thinking. And I worry that our ideal of the burden of proof is bringing about the opposite of its intention. Perhaps it is appropriate for crimes like robbery, or any nonviolent crime, but if we put the burden of proof so high on cases of rape? It’s no wonder people don’t report, or don’t until there is so much at stake that it’s worth the cost. Because if we fill in the characters of the actual situation many in our country face today, the proverb could be: better 100 rapists rape innocents without legal consequences, than one innocent lose their freedom without cause. And I know, it’s not only men doing the raping, and it’s not only women getting raped, but a system that rewards aggression and stifles those who stand up for themselves seems like a system that needs changing.
Well said.
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