How Bad is This?

How Bad Is This?

Georgia is my home state, so when I see a political story located here I have to take notice. What a doozy this one is!

Georgia Republican state Rep. Bobby Franklin (of gold-standard-wannabe fame) has introduced a bill to change the state’s criminal codes so that in “criminal law and criminal procedure” (read: in court), victims of rape, stalking, and family violence could only be referred to as “accusers” until the defendant has been convicted.

The Democratic Legislative Campaign Committee says:

Burglary victims are still victims. Assault victims are still victims. Fraud victims are still victims. But if you have the misfortune to suffer a rape, or if you are beaten by a domestic partner, or if you are stalked, Rep. Franklin doesn’t think you’ve been victimized. He says you’re an accuser until the courts have determined otherwise.

To diminish a victim’s ordeal by branding him/her an accuser essentially questions whether the crime committed against the victim is a crime at all. Robbery, assault, and fraud are all real crimes with real victims, the Republican asserts with this bill.

Rep. Franklin surely is aware that the crimes for which he believes there are no victims are disproportionately committed against women—and are disproportionately committed by men.

It is a reasonable point that the victim of a rape has suffered emotional damage, and the court should give attention to the question of not inflicting further damage. It's fair to ask that the court use language that will not cause insult or offense.

Where I differ with the DLCC is here: that interest in protecting the victim has to be balanced against the bedrock legal principle of presumptive innocence. That may be of particular importance in cases where one of the questions before the court is whether a rape did, in fact, take place -- either because of disputes about consent, or questions of whether or not there was really sex at all. The court has to be careful not to prejudice the jury in either direction. If those interests cannot be balanced completely, shouldn't we err in favor of the bedrock legal principle that is protecting someone who is in jeopardy of losing freedom or life?

Perhaps not! There may well be cases when the presumption of innocence is a facade that no one can really keep up; frequently in criminal court everyone is quite sure of the guilt of the accused because of numerous past offenses. In those cases, the court may do the minimum necessary to keep up the facade for the sake of the jury, and no more than is required. Certainly in cases where there is no dispute that a rape occurred -- where the accused is merely disputing that he was the one who committed it -- it would make no sense to force the court to refer to the woman as "an accuser" rather than a victim. In cases where there is reasonable doubt, though, and where the fact of the rape is in dispute, it may be necessary for the court to consider the issue of language to ensure a fair outcome.

The issue is surely a complicated one; it is probably best be left to the discretion of the judge, rather than handled with an across-the-board legislative remedy. I agree that this attempt is clumsy and ill-advised. I'm not convinced that the motivating sentiment is immoral, or that a bill aimed at this matter should be taken as prima facie evidence of bias against women.