This is pure humbug. Moreover, it is dangerous humbug.
Let's begin with a moral reductio ad absurdum:The argument made by the law professor might be made about any rule of procedure or evidence in a case involving a claim or charge of sexual misconduct. If the law professor's argument were valid, we would have to conclude that rules of procedure, rules of evidence, and trials are unnecessary in cases involving claims or charges of sexual misconduct.The law professor's benchmark -- Who are you for: victims or vermin? -- neglects the utterly, completely, wholly, absolutely basic point -- a point taught, one hopes, in the first day of any law student's legal education, if not long before (e.g., in kindergarten) -- that part of what trials are for is to determine whether sexual misconduct took place.
A procedural rule -- a rule such as a statute of limitations -- might serve to reduce the frequency of certain kinds of erroneous outcomes (false positives, erroneous assignments of legal liability when they are factually unwarranted). To be sure, such a procedural rule (like almost rule of procedure or evidence) also creates a risk of error -- in this case, a certainty in certain classes of cases -- of a different kind: that legal liability will not be imposed when legal liability is factually warranted. But the debate about whether a rule of procedure (or any other evidentiary or procedural rule) should or should not be used should depend on the comparative magnitude and frequency of these two types of risks and the amount of harm thought to be done by these two kinds of errors (and by other considerations) -- and not by the question of whether one prefers victims or malefactors.The argument that your view of a debate about a procedural right or rule such as the statutes of limitations should depend on whether you prefer sexual predators to victims or whether, instead, you prefer victims to predators ignores the existence of two groups of people: (1) alleged victims who are not in fact victims, and (2) alleged sexual wrongdoers who are not in fact wrongdoers. The law professor's argument would have more meat if mistaken claims and charges of sexual wrongdoing were never made and if innocent people were never charged with sexual wrongdoing. Alas, alleged victims are not always actual victims and alleged sexual wrongdoers are not always actual sexual malefactors. See, e.g., State of New Jersey v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994)(young female day care worker falsely accused and wrongly convicted of sexually abusing her young charges 174 times). See generally Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (2004)
coming soon: the law of evidence on Spindle Law
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The statement, reportedly made in a book, was this: "It is an either/or choice: we can either protect the predators or the children." Ah, set up a disjunction with only two alternatives. That's an old trick. (A person is either tall or he is not. A person is good or she is evil. You are with me or against me. A person is either bald or she is not. You either love me or you hate me.) One alternative -- nay more than one -- has escaped the law professor's notice: innocent people wrongly accused of child molestation. (What, this never happens?) Another group neglected in this either/or scenario: false accusers. Do we protect them as well -- and at any price? We should also consider that the choice facing society is surely a matter of degree: e.g., strive to protect people from factually unwarranted legal liability to some degree while also trying to protect molested children to some degree. Or do the interests of innocent people not count? NOTE: I do NOT quarrel with the importance of deterring and punishing the molestation of children. But as important as that interest is, it is not the only important thing in our society. If it were, we would not spend money on art, music, libraries, highways, space, education, etc., and we would devote every penny and every ounce of our energy, time, and money to rooting out child molestation (and we would value education, music, etc., only to the extent that such things inhibit molestation, and not otherwise -- and we would inflict every barbaric punishment imaginable on those accused of molestation and we would convict everyone _accused_ of molestation regardless of the quality of the evidence and ... etc., etc., and we would not do these things only to the extent these measures are counterproductive ... otherwise, hang and shoot them -- and one, well, must break a few eggs, and sometimes many, to make an omelette, no?
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