Do you believe in the presumption of innocence? I doubt it. But don’t feel bad. Lawmakers don’t believe in it either. The sad fact is that once someone is arrested, they’re guilty in the eyes of their neighbors. Pick up the paper to learn that the fellow next door just got busted for some infamous crime: you’ll never look at him the same way again.
This is especially so in cases alleging sexual misconduct.
Despite the lurid and often quite troubling allegations in such cases, we just can’t seem to get enough of them. Daily newspapers report on them with an unseemly relish. We love crime for reasons having to do with sin, I suspect. We’re all sinners.
Our courts aid and abet the thrill of it all. Arrest warrants are routinely made public. In sex cases, the names of the complaining witnesses are edited out. That’s because a person making a claim of sexual abuse enjoys the benefit of a state statute requiring courts to keep their name confidential. Even when newspapers become aware of the name of a complaining witness, editors won’t print them.
Why do we permit the accused’s reputation to be destroyed by publication of mere accusations, while keeping the name of the accuser secret? Is this a left-handed way of admitting that we believe the accuser must be right or he or she would not have come forward? What about the presumption of innocence?
A presumption is an assumption armed with legal force. To presume something means you must take it as a given. A presumption can be rebutted, or disproven, with evidence; lawyer’s call these sorts of things rebuttable presumptions. Thus, a person is presumed innocent unless and until the state proves his or her guilt by the law’s highest standard, proof beyond a reasonable doubt. The accused is supposed to start the case with an assumption that he or she is innocent, not guilty, of the crime charged. It is the state’s burden of proving that the accused is guilty. This is bedrock law in every jurisdiction in the United States. We pay lip service to this principle, even as we ignore it.
The law and common sense collide once a person has been arrested. After all, folks aren’t arrested at random. The accused must have done something to get arrested, right? We give lawmen the benefit of the doubt if we are trusting sorts. “What did he do?” we ask when we see a man led away in cuffs. I wonder why we don’t ask the more meaningful question: “What do the officers think the man did?” Lawmen can, and do, get it wrong. Sometimes their greatest mistake is believing an accuser.
I represent a popular physician accused of crimes, Dr. Tory Z. Westbrook. Odds are you’ve seen him on television or read his name in the paper. You see, a group of former patients of his are now claiming he groped them. He’s been charged with sexual assault. He has pleaded not guilty to the charges.
The allegations sound damning, and, although we are prepared to meet the allegations head on, we are forced to sit silently by as he is crucified in the press. We cannot attack those who have pointed the finger at him. The rules of court give his accusers a pass: They can throw all the stones they like from behind a veil of secrecy. We cannot respond. Although Dr. Westbrook enjoys the presumption of innocence, the law permits his accusers an open season of accusation. You cannot know their names; I am forbidden to utter them in public, even if I know things about them that would make their mommas blush.
If we truly believed in the presumption of innocence, we’d see to it that the accused enjoyed the same solicitude we afford to those who regard themselves as victims.
But I say we’re not serious about the presumption of innocence. We love stories about criminal cases because they pass for the equivalent of morality plays in a secular society. We portray the criminal process as a struggle of good versus evil. The accuser, who we are quick to call a “victim” merely because he or she has made an allegation, represents good. The accused is evil.
We don’t give the devil a presumption of innocence. He’s a stock character. But those accused aren’t supposed to be regarded as devils. Regarding someone as guilty just because the government accuses them of a crime gives the government too much power. If anyone of us can be destroyed just because he or she has been accused, then those with the power to make accusations can destroy us all. That’s not supposed to be our law.
Reprinted Courtesy of the Journal Register Company