Saturday, February 21, 2009

Back to Basics: Wrongdoers, Victims, and Procedural Rules -- and Alleged Wrongdoers and Alleged Victims

Recently a law professor, while referring to a debate about statutes of limitations for civil actions based on claims of sexual wrongdoing, reportedly said that whether you should favor the elimination of limitations periods for such cases depends on whether you favor sexual predators or whether you favor the victims of sexual predators.

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)

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