The bedrock of America’s system of criminal law is Due Process with its inviolate premise that persons charged with crimes are presumed to be innocent until and unless proven in court to be guilty. Our United States Constitution and every state’s constitution provides these rights to each of us should we be charged by one of our governmental entities with any offense of a published, written and officially enacted violation. What does it say about the procedure and the presumption of innocence if the identity of the alleged victim is not revealed but the person charged with an offense is named publicly?
We have no burden of any kind to prove our innocence or to even speak in our own defense. We have the right to be represented by a licensed attorney and if we cannot afford to pay for those legal services, the government will do so. We have the right to see, hear and confront our accuser and to cross examine them, under oath, in open court and, in felony cases, before an impartial jury of our peers. We also have the right to compel by law witnesses and other evidence on our behalf. We may appeal any verdict to higher courts. Torture of any kind to force a confession is forbidden. And, we have the right to demand all proceedings be made public so we cannot be tried in a secret tribunal. But, when it comes to allegations of sexual offenses, especially against minors, our legal system ignores several of these vital elements because reality gets in the way of philosophy.
Usually there are only two witnesses to an allegation of a sexual offense and, with young children, one of the two may not be capable of expressing themselves. Also, the legal system is faced with two extremely vital issues. If an offense has actually occurred, how can the wrong be righted and two, if the accused is innocent, how does she or he prove a negative. Further, is society more greatly harmed by a victim who is not believed or by an innocent person whose life is destroyed by a false, or incorrect, allegation? These are at the foundation of our legal and social systems and carry great consequences.
It is not easy to analyze these important issues. Minors are often too young to speak for themselves if they are, in fact, victims. True victims of sexual offenses, while they may feel no guilt, often still feel shame and experience real fear and anxiety that they may not be believed, especially about a beloved relative. Society does not blame the victim of a robbery, but it may wonder about the actions or motivations of a sexual victim.
How can we fairly balance the interests of actual victims, including their reluctance to even admit anything untoward happened, with an accused’s constitutional rights? More importantly, how does an innocent accused ever recover her or his reputation or mental health from a false or inaccurate allegation? Personally, I often worried that my status of never having been a victim or an accused may have affected my judgment as a judge in such cases. Also, I am an adult male, fairly secure financially and a product of a family environment where I was untouched by such influences. Or so I thought.
While I have often had to deal with these issues in my more than fifty years in the legal profession, it was my astonishment at my older sister’s long suppressed trauma and conflict that sharpened my focus. My beloved big sister, who always sought to protect and care for me, finally decided it would be better for herself and me to know that our mother’s father’s sister’s husband had attempted to molest her when she was ten years old. She escaped any physical damage but still suffers the turmoil of anger and guilt. Janie remained silent for over sixty years out of shame and fear of what harm the knowledge of the incident might do to the family.
I know my courageous and generous sister would never tell me such a thing unless it was true and unless she just finally felt compelled to expiate herself now that the other principal has passed and she is fighting heroically against a debilitating illness. So, Judge Redwine, how do I synthesize, analyze and balance this case? What of my years of faith in Due Process and the Presumption of Innocence? Where do we all come down on the Constitution versus the humanity of such realities as the Me-Too movement or child sexual perversion?
As for me, I not only now know about my long-suffering victimized sister, but I know our legal system has ruined the lives of innocent persons who were falsely or incorrectly charged. I guess we just have to take it one case at a time. It is too much of a Gordian Knot for the law to unravel. But, of course, as we humans must admit from time to time, we often can only do our best and if we can only find the answer as through a glass and darkly, it is still our duty to do so.
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