[lbo-talk] Strauss Kahn

[Dissenting Wren]

Christ on a cracker, no one proposed "moral certainty" as an alternative standard of proof in criminal cases.  (But I did do a little digging on what juries are usually told "reasonable doubt" means, and those instructions aren't much better.)  Until someone can give me a credible alternative theory of what happened in that room, I'm going to go ahead and say that DSK got away with sexual assault there.  That doesn't mean I know I would vote to convict if I were on a jury in a case that will never happen.  The point I've been trying to get across from the beginning is that the combination of a right to robust legal defense plus widespread misogyny makes lots of women vulnerable to rape with precious little hope of legal redress.  That's not the same as thinking that defendants should be denied the right to a robust legal defense or having a knee-jerk "hang 'em high" reaction.

I will grant that I should have made it clear that my first comment was meant to be about this more general problem, not about the DSK-Diallo case in particular.  But holy balls, is this so hard to understand?

________________________________
From: Doug Henwood <dhenwood at panix.com>
To: lbo-talk at lbo-talk.org
Sent: Wednesday, August 24, 2011 3:05 PM
Subject: Re: [lbo-talk] Strauss Kahn

On Aug 24, 2011, at 3:54 PM, Dissenting Wren wrote:


> The legal standard of "reasonable doubt" is invoked after all of the evidence is presented in a court - and we'll never know how that might have come out.  Since we're not in court, I think the relevant standard is "moral certainty" - being sure enough to proceed on the assumption that something is true.  And even "moral certainty" is variable, because being "sure enough" depends on what you're planning to do.  And since all I'm planning to do is howl at an indifferent universe, then my standard is "can I think of any other plausible explanation" for what happened there?"  Nope.  As far as I'm concerned, this cochon just got off with one more cochonnerie.  You haven't slandered Diallo, but SA suggesting she engaged in an act of prostitution, or Shane suggesting that this was an extortion scheme "just like Roman Polanski" (ZOMGWTF?) ... I need another shower.
> 
> As far as reasonable doubt and rape cases, there's the problem that "reasonable doubt" is a vague standard left to the interpretation of each member of the jury.  Unfortunately, there are enough jurors out there willing to blame the victim that sleazy defense tactics work.  I know the case of one seven-year-old girl whose case went to mistrial because one juror was convinced by the defense case that she seduced her attacker.  When those tactics start to backfire on defense attorneys, then the dilemma I talked about earlier will evaporate (e.g., the right of the accused to a robust defense won't make it virtually impossible to prosecute the rapists of "bad women").  But until then, we have a fucking problem.

The concept of "moral certainty" presents a bit of a fucking problem too, doesn't it? Would you like a criminal justice system run on Sheriff Joe Arpaio's sense of moral certainty?

SA is onto something, with the way so many leftists are willing to hang 'em high if the charge is rape. 

Doug
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