This essay first appeared in Cliterati on June 15th; I have modified it slightly to fit the format of this blog.
During 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…
These 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.
Sadly it’s mostly the same here. About the only exception is that asset forfeiture is rarer in Australia than in the US (though by no means non-existent) – perhaps because the seized assets go into things like general revenue or victims compensation instead of to police or local authorities. Interestingly the crimes most often committed by the top end of town – such as fraud, embezzlement and corruption – are generally not subject to asset forfeiture.
Domestic violence laws, with reversed onus of proof, are particularly often abused here, especially when Aborigines are involved. There has been more than one case when police have attempted to arrest an alleged DV perpetrator but have been forced to back down in the face of a riot by friends and family – including the alleged victim.
But there is one ‘crime’ that has never been protected by presumption of innocence in the West. The crime of allegedly being mentally ill. Any head quack can claim you’re a risk to yourself and/or others and you can not only be locked away indefinitely but drugged against your will. They imprison not only your body but your mind. There is a fig-leaf of accountability in review boards such as the NSW Mental Health Review Tribunal, but not only does it invariably go along with the claims of the ‘treating’ physician (naturally you lose your right to choose your own doctor), it does not even perform reviews with anything like the frequency required by legislation. Apart from a few activist organisations yelling ineffectually about it, no-one does a thing. In fact ‘carers’ groups and drug company funded ‘activists’ frequently lobby for even greater use of such laws. Such is the stigma of mental illness.
So if anyone reading this is ever arrested for a serious offence and your lawyer suggests an insanity defence, look for another lawyer. If successful you will probably spend longer locked up than you would have had you been convicted, you will never know your release date until it is upon you and you will almost certainly be forced to take dangerous stupefying drugs against your will. (Tip: If you ever think you may be forcibly administered psychiatric drugs, get in first and ask for them. In all likelihood the prescribing shrink will assume you want to abuse them recreationally and will refuse to give them to you).
In a police state, everything is a crime.
We’ve got ourselves here willingly, by responding to each and every situation with “there ought to be a law-” In our quest for ultimate safety, we’ve given up our illusion of freedom.
Having a law for everything, and ‘authorities” to handle every incident, protects us from the difficulties of freedom. We never have to work our way through conflicts, or stand for ourselves, the cops will show up and decide.
And may prefer it that way.
There’s a well-written book, ‘Three Felonies a Day’, which covers the collective guilt of every citizen of these here United States pretty well. And I suspect the ‘shame the Johns’ initiative will quietly disappear (most of them do); I’m sure that the fact that rich and powerful people also patronize prostitutes is a mere coincidence.
Yeah, asset forfiture generally disappears right when it might affect powerful interests (e.g. banks) who make money off crime, but aren’t seen as criminals.
Indeed, every schoolchild knows that a person on trial is presumed innocent until proven guilty.
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The recent “historic abuse” cases has pretty much smashed this pillar of English law since there is no solid evidence to support what the ‘victim’ is alleging – just their word against that of the accused. The whole thing is further tainted by the fact that if the accused is found guilty then the accuser will be in a position to claim damages.
Your forgetting the most simple, and common, reversal of the burden of proof- in the United States a person can arrested and held without bail (or with an unpayably high bail) for a potentially indefinite amount of time, with only a court appointed lawyer between them and wrongfull conviction. Even if they are found innocent, they can be held for months, even years, while trial dates are pushed back, ect with no compensation for the wrongful punishment. Add to this the fact that police will lie under oath and suppress evidence that indicates innocence.
Everything is terrible, isn’t it?
Ditto here in Australia, Stormdaughter.
It’s gotten worse with the enthusiasm for DNA evidence. The labs are heavily backlogged and prioritise rapes, murders and crimes for which no arrests have yet been made. What this means is that those accused of relatively minor property offences cool their heels in a remand cell for many months while the prosecution keeps getting adjournments to await the lab results.
It’s not unusual for Australian defendants to spend longer in prison on remand than they would have been sentenced to if found guilty.
Asset forfeiture can apply even if you’re not accused of a crime.
Had a friend of mine who owned a very nice historic home in San Diego. When he got orders to Memphis … he screened a renter for the place – a lawyer.
How was he to know the lawyer was going to quit his job and start mixing drugs in his bathtub?
The house was seized – and my bud wasn’t allowed to get inside it. He could not rent it out … and still had to pay a pornographically expensive mortgage – for a full year. When he finally got the house back, he looked inside – it was trashed. Historic homes have to be fixed, repaired, renovated iaw special local laws – which means more expense.
He lost the house – no way he could repair it since he was wiped out from paying a “dead horse” mortgage on it for a year.
He also had to declare bankruptcy. And – he was never accused of ANY crime.
I remember getting one of those dear john letters years ago when I was still playing on the streets. I opened it up, read it, laughed and then threw it away. Pretty blatant attempt to intimidate. Doesn’t seem to have turned me away from the sex trade.
Reblogged this on A Practical Owl in a Wiccan World and commented:
I am so angry today (not that this is anything new at this point really, but…) and I am generally helpless to do anything about it. Innocent until proven guilty? Ha!