The Crime of Punishment

Yesterday upon the stair,
I met a man who wasn’t there.
He wasn’t there again today;
Lord! I wish he’d go away!

My late father often told me that it was better to let a guilty man go free, than to convict an innocent one. He considered himself a conservative, and a moderate Republican, back in the days when such was not an oxymoron. While I was sometimes chagrined by his astonishing success as a La Salle Street (Chicago) Attorney, in keeping some corporate criminals out of jail who really belonged there, I agreed with his sentiments at the time, and I still do.

I am, like my father, a conservative on the issue of presumption of innocence, and the requirement that the State, with its awesome, coercive police power, subject always to abuse by human frailty, be forced to prove its case “beyond a reasonable doubt.”

I am, therefore, continually appalled at the way in which we in North Dakota, as in the rest of the country, assume the guilt of the accused, a quite savage and medieval approach, if and when you think about it, rather than the opposite legislative, executive, and judicial presumption of innocence, which is the hallmark of all truly civilized societies.

At the level of gossip and enjoyment of human foibles on the Jay Leno monologue, I am no better than anybody else, but when it comes to tolerating injustices that pile up, because we all too often value human rights only for ourselves, and not for others, I find less to laugh about. These are in the areas of North Dakota laws and law enforcement where the truism of La Rochefoucauld—“Hypocrisy is the homage that vice pays to virtue”—is most apparent.

What we in North Dakota designate as the crime of “rape” or “Gross Sexual Imposition” is the crime for the most part of men against women, and has more to do with violence against her than of lust for her. The studies have been done, and most experts on the subject are agreed that “criminal sexual assault” in varying degrees, is a far more useful legal term than the previous vague one of “rape”—a term coined by men which, among other things, often forces women to have to relive their horrible experiences in order to have a chance of putting their assailants in jail.

The harm of sexual abuse lives on in the victim long after its occurence. Victims often think that the abuse was somehow their fault, and try to please their oppressor in material and vicarious ways, as if making the pain go away in the heart of their assailant will somehow make the pain go away in their own heart and mind.

Despite sustained efforts to give love to others, victims of sexual abuse are also often unable to receive love in a positive way for themselves, especially in the form of physical touching. The ability to fully trust another person, or even oneself, is shattered—in many cases beyond repair. Those who have been fortunate enough not to be violated in this way, and are therefore quite unable to fathom the depths of this crime, would be advised to consult F. Scott Fitzgerald’s book, “Tender is the Night,” and Clint Eastwood’s movie, “Mystic River.”

It is only thirty-five years since courageous politicians like Representative Aaron Jaffe in Illinois began the process with his “Rape Study Committee,” which forced male chauvinist fellow legislators to recognize that the crime of rape was essentially a crime of violence rather than one of sex.

Such enlightenment has not yet reached the North Dakota Legislature, and it should be a matter of great embarrassment for us. Illinois legislators are otherwise known to be as venal as those in Texas, and they practise bipartisanship to the extreme of both parties having Governors indicted and convicted on a fairly regular basis.

The process of change in Illinois took ten years, and required that Legislators look at the crime of rape from the point of view of its victims, mostly women and children, not from that of its perpetrators, mostly men like themselves.

Let’s get something straight here. Any man who hits a woman or child—even once—is not a man. He may be great at riding a wild horse, subduing the stock market, or piling up money in some way, but he is no kind of man, just a male animal of some sort. If he was beaten by his daddy, or watched his momma being abused, that might be an explanation, but never an excuse.

Hitting a woman, of course, needs to be distinguished from hitting “on a woman,” so-to-speak. The difference is clear enough to most women and men who have ever spent any time at a local watering hole, a singles dance, or church, for that matter. However, a statute that defines rape in North Dakota as “Gross Sexual Imposition [GSI]” should be enough to frighten the daylights out of any patron of “Hooters,” or guy who frequents our bars and restaurants where the waitresses are…well… “sexy.”

The vague wording of GSI invites abuse by prosecutors and vengeful citizens when “he says she says” spills over into the courtroom. We have the technology of DNA testing to establish the innocence of the accused, but our Legislature in its alleged wisdom, and our Governor and our Judiciary in their timidity, have not seen fit to see it used, except, of course, for the well-connected. As a result, we have men in our penal system, convicted of GSI, who still protest their innocence to no avail—to the continuing and punitive annoyance of their overseers. As long as we refuse to use technology like DNA testing for the Defense, as much, or more, than for the Prosecution, men who protest their innocence and unsuccessfully seek that testing will merely serve as scapegoats—surrogates for the lustful nature of men who were not caught, rather than for a crime they actually committed.

It is important that we make better efforts to establish the innocence of any man or woman accused of sexual abuse, violent and violating in its nature, precisely because the crime is such a serious one, “murder of the soul,” as psychologist Dr. Bobbie McKay puts it.

The statistics are grim. Most professional psychologists and psychiatrists accept that one out of every three female children and one out of every six male children in this country are sexually abused in some manner, either physically, psychologically, or both. Do the math of probabilities and you will see that North Dakota is by no means exempt from this tally, and there are, quite likely, dark corners of our State hiding abuse of women and children who are punished for the crime of their vulnerablility.

“Yesterday, upon the stair…”