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Archive for July 25th, 2014

This essay first appeared in Cliterati on June 15th; I have modified it slightly to fit the format of this blog.

Emperor JulianDuring the reign of the Emperor Julian a man named Numerius, who was governor of Narbonensis (what is today southern France), was accused of embezzlement by one Delphidius; because Numerius was a high official his trial was presided over by the Emperor himself.  Numerius’ defense consisted entirely of denying his guilt, but since Delphidius had no actual evidence this was enough.  When it became clear that his attempts to trick Numerius into self-incrimination had failed, and that the charge would fail with them, Delphidius cried out, “Oh, illustrious Caesar!  If it is sufficient to deny, what hereafter will become of the guilty?”  Julian’s famous (and quotable) reply was, “If it suffices to accuse, what will become of the innocent?”

The principle was not new in 4th century Rome; it is clearly stated many times in Roman law, appeared in both Athenian and Spartan legal codes, and traces of it appear in Deuteronomy.  From Rome it passed into the Western legal tradition, and it is one of the pillars of English common law.  Indeed, every schoolchild knows that a person on trial is presumed innocent until proven guilty.  However, this is no longer true in many cases; all over the West, but especially in the United States, this powerful defense against tyranny once enjoyed by everyone from beggar to prince has been slowly eroded away in the name of expediency.  Prosecutors eager to “score” convictions take advantage of the vast arsenal of overlapping laws to charge people with so many different crimes for one supposed act that conviction on even a small fraction of them would result in decades of imprisonment; the frightened (and often completely innocent) victim nearly always agrees to some lesser charge rather than face the prospect of spending most of his life in a cage where he may be repeatedly raped, tortured  and denied even the respite of death.  Intimidating a victim into confession circumvents the need to have any evidence at all, much less enough to secure conviction in court.

In some kinds of cases, however, prosecutors don’t even need this kind of barbaric threat to induce a confession, because the presumption of innocence is either directly weakened or effectively nullified by other prosecutorial weapons; or, the accusations are handled in special kangaroo courts where the presumption does not exist; or, the accused is simply punished directly by the police without the need for a trial, evidence or anything else.  And what kind of crime, you may ask, is so heinous that it justifies undermining a venerable principle and virtually ensuring that huge numbers of people will be punished for things they did not do, or else receive punishments that are wildly disproportionate to something they did do?  Mass murder, perhaps?  High treason?  Burning down orphanages?  Stealing war widows’ pensions?  Plunging whole countries into economic depression?  No, something that in the minds of American is far worse than any of those:  pleasure-seeking, especially sexual pleasure.

In many American states, if a neighbor calls the cops because the couple next door is fighting, “the husband is arrested…no matter what the wife says…and prosecuted.  Because many wives rightly refuse to cooperate with such proceedings, the Office on Violence Against Women…authorized so-called “evidence-based” prosecutions, kangaroo courts in which…hearsay…is allowed and the accused man is denied the constitutional rights of confrontation and cross-examination.”  On university campus, a similar third-party accusation can subject a young man to a “campus tribunal” such as the one described here:

…the tribunal does pretty much whatever it wants, showing scant regard for fundamental fairness, due process of law, and the well-established rules and procedures that have evolved…for citizens’ protection…the…allegations were a barrage of vague statements, rendering any defense virtually impossible…Nor were [they] supported by any evidence other than the word of the ex-girlfriend.  The [accused]…was expressly denied his request to be represented by counsel…The many pages of written documentation…were dismissed as somehow not relevant…witnesses against him were not identified…nor was he allowed to confront or question either them or his accuser… 

The war against people who enjoy ingesting substances spawned an even viler abrogation of the presumption of innocence:  civil asset forfeiture, by which the police or a court can steal a victim’s property under the ludicrous pretense that it (the property) has committed a crime; since inanimate objects have no rights, the state can take it unless its owner can prove its innocence (a reversal of  the normal burden of proof).  From the drug war the practice expanded to the War on Whores, and in the US and UK the police now routinely rob sex workers and clients of money, vehicles and other property.  And when there’s nothing else for greedy cops to steal, there’s always a victim’s reputation:

[St. Louis, Missouri] police are reviving a push to…humiliate…those prowling the streets for prostitutes.  “Johns”…will receive postcards…admonishing them for their crime, giving reminders about…sexually transmitted diseases and listing their court dates…In addition, police say they plan to routinely provide local news media with mug shots of those charged with prostitution crimes…

Pillory stocksThese so-called “Dear John” letters are not unique to St. Louis, nor even to the United States; the practice of publicizing “mug shots” on television, the internet  or even billboards is also widely used.  The pretense used to justify this is that these shaming tactics are not punishments but merely “public records”; I’m sure people who lose their jobs or families due to these actions are comforted by the distinction.  The truth is obvious to anyone whose mind is not warped by the “law and order” sickness:  all of these practices – the extrajudicial punishments, the legally-sanctioned robbery, the kangaroo courts, the plea bargains – are just ways to get around the inconvenient necessity of actually having to prove a person has done something wrong before subjecting him to violence.  Oh, well, presumption of innocence had a good run, almost 3000 years; I suppose we should be grateful for that much.  But it sure was nice while it lasted.

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