Note to readers: At the outset of this debate there was to be three exchanges between myself and Johann the Cabbie. We agreed in advance that there was to be a 72 hour turnaround limit between responses. I insisted on the commitment to honoring the deadline in advance and explained to Johann that it was important to me that AVfM readers be able to depend on our timeliness.

On his first opportunity to respond, Johann failed to meet the deadline and made no effort to contact me about it. I posted a comment to his site pointing this out to which he responded, in part “I am in breach of our agreement. I offer no apologies our excuses, but I do offer a shamefully belated response.”

His response, if you can consider it that, is posted here below, along with my final rebuttal. This has allowed him equal time in the exchange. But this is where I terminate our “debate.” I can take Johann’s youthful arrogance, but his lack of integrity crosses the line. As he has clearly expressed that he has no regard for being trustworthy or credible, this exchange will conclude this debate with Johann the Cabbie, but I also take this as an opportunity to extend the invitation to anyone with an opposing view, and a commitment to their own word, to have this debate at a later time.

Johann’s response:

Times Square attracts the crazies. Nutters pick their spot of sidewalk and spend hours shouting and waving their arms, trying to convince any who pass by that their particular brand of crazy ain’t so crazy. After a while, one gets to recognize the regulars – the science of sin guy, the Black Israelites, even some dude playing a guitar whilst claiming to be naked, but really, he’s wearing hat, boots, and tighty whities.

Reading Paul Elam’s writing reminds me of those nutters. So much so that I wonder how he can get any typing done with all the arm waving and shouting. The man can type at length, but like the Times Square nutters, he produces no evidence to back up his assertions. And just like the nutters, his rants can get rather tedious.

Elam’s main contention is that rape shield laws prevent the jury from hearing relevant evidence, so guilt beyond a reasonable doubt cannot possibly be ascertained. And lacking any evidence beyond mere anecdotes, he resorts to making one unfounded assertion after another.

His best attempt at providing some evidence or logic is quoting some federal evidence rules to show that rape shield laws have always been unnecessary. He fails to mention that rape shield laws are designed to instruct judges what is and what isn’t relevant in rape trials.

Here, I’ll give a list of his evidenceless[sic] assertions:

The entire nullification argument hinges completely on the idea that obvious guilt is unattainable under the current system, specifically where “rape shield laws,” are concerned. To ascertain guilt, relevant evidence must be weighed. If the accurate weighing of that evidence is not possible because relevant facts have been intentionally omitted, it amounts to nothing more than a magic show; smoke and mirrors from which no true picture can be gleaned. In that scenario, a fair trial is not possible. It is as easy to understand as it is logical.

There is no logical reason, in the face of the evidence, to lump all other criminal court proceedings in with rape trials. They are conducted differently, which is the point of this debate.

All Johann has done here is to momentarily pretend that the rape shield laws he was already minimizing now don’t exist at all.

One, the lack of reason (though unreasonable they are) in these politically motivated laws is not so much the issue as is their impact on due process. The moment we systematically deny a defendant the right to include evidence casting legitimate concern on the veracity of an accuser, or on possible motive to fabricate, we have not only denied them a Constitutionally guaranteed fair trial, but we have also eviscerated any opportunity to hold credible the evidence required to conclude guilt beyond a reasonable doubt.

…why is he [JtC] not advocating for rape shield laws, for the accused? I will tell you why. It is because he is affected by the same one dimensional, irrational and lopsided thinking that afflicts Matt Dillahunty, just to a slightly lesser degree. He has surrendered reason for rote protective instinct that has no place in our criminal justice system where life and liberty depend on thoughtful analysis and an unfettered pursuit of the facts.

He sees women as primarily victims, in need of special treatment, yet he offers not one shred of evidence of why that special treatment is necessary, effective, reasonable or consistent with Constitutional demands. And he does not even speculate what the real impact of those special rules might be on the people they most affect.

I’ll ignore his arrogance of attempting to place thoughts in my mind and just worry about his complaints about rape shield laws.

Anecdotes are not evidence. In a country of over 300 million people, some will be screwed by society. Some innocents will suffer in the criminal injustice system. Every travesty is a tragedy, but Elam’s listing of a few of those travesties is not evidence of an endemic problem. Elam needs to provide some actual data to prove that rape shield laws are a systemic, endemic problem.

Until then, I will continue to view him as one of the Times Square nutters.

♦♦♦

Elam Responds:

Given that this debate is coming to an abrupt and unscheduled end I will respond to what little substance was offered by Cabbie and move on to other points I would have made in future installments of this debate.

After we shave off all the name calling and other distractions, and take a look at the one point that Cabbie even attempts in this “rebuttal,” we find that he still fundamentally fails to understand the Constitutional and rational imperatives that undermine his position.

His one and only assertion here is that there is no justification for nullification without empirical proof of an “endemic problem” with the misapplication of rape shield laws. In fact, he is saying that without that evidence, the predisposition to nullify amounts to something equitable to chanting about End of Days on the street corner.

This, of course, is neither applicable nor logical. All we must do in the case of criminal trials is prove that the problem is prevalent enough that there is reasonable concern about tainting the presumption of innocence and the ability to ascertain guilt beyond reasonable doubt, broadly speaking. I think the arguments following do that with more than sufficiency.

To begin with, the trouble over rape shield statutes did not originate with me or with the MRM, generally speaking. There have been repeated concerns expressed about the impact of rape shield laws on due process and fair trials long predating anything I have published on the matter.

Columnist Cathy Young wrote an article at reason.com titled, Excluded Evidence, the Dark Side of Rape Shield Laws. In it, she writes the following about the courts excluding evidence of previous false rape accusations from trial:

Most of the time, however, the burden is on the defendant to show that the value of this evidence to his case outweighs its “prejudicial effect” on the complainant. In several states (including Alabama, Iowa, and Washington), courts have held that excluding evidence of an earlier false or dubious rape complaint by the accuser does not deny the accused a fair trial — even, perhaps, if the evidence is relevant to the question of his innocence.

As far back as 1976, David S. Rudstein wrote, in the William and Mary Law Review, Vol. 18, Issue 1:

…those statutes that absolutely prohibit a defendant from introducing evidence of a rape complainant’s bad reputation for chastity, opinion evidence of her bad character for chastity, and evidence of specific acts of sexual intercourse between the complainant and men other than the defendant on the issue of consent may unconstitutionally deprive the defendant of his rights to a fair trial and to confront the witnesses against him.

In Courting Disaster: Re-Evaluating Rape Shields in Light of People v. Bryant, Josh Maggard wrote:

Under the most stringent of the rape shield statutes, a defendant charged with murder has more protections and greater leeway with introducing evidence in his defense than a defendant charged with rape. More compellingly, a defendant who rapes and murders a victim enjoys a lesser standard of evidentiary exclusion for the murder than he does for the rape. This should give pause to even the most vocal of rape victims’ rights proponents: a legal structure which rewards a crime ending in death with more substantive and procedural protections must, by necessity, be flawed. As Susan Jacoby noted, “the most important change brought about by the women’s movement is abandonment of the antediluvian notion that rape is ‘a fate worse than death.’ Nothing is worse than death.

These and other legal and common opinions have not gone without some reaction in actual courts. As Clare Dyer reported in The Guardian in May, 2001, a British House of Lords ruling challenged rape shield laws there:

A law that bans juries in rape trials from hearing evidence that the accused had a previous sexual relationship with his accuser breaches his right to a fair trial, five law lords ruled yesterday in a landmark judgment. “Good sense suggests that it may be relevant to an issue of consent whether the complainant and the accused were ongoing lovers or strangers,” said Lord Steyn. “To exclude such material creates the risk of disembodying the case before the jury. It also increases the danger of miscarriages of justice.”

And it is that risk that speaks directly to the issue of nullification. These legal rulings, opinions and layman interpretations of rape shield laws also do not serve to provide Johann the Cabbie with the “endemic problem” neatly cited and referenced, so that he may quiet his personal derision and see merit in the nullification argument. Nor will the anecdotes of those concerns being realized sway an individual so predisposed to look only at the concerns of alleged female victims.

What they do provide, however, is sufficient information for reasonable citizens to look at rape shield statutes and determine they are an endemic threat to due process and presumed innocence, by their very existence. Rational thinkers can view this information and conclude there is a problem not addressed by the state that can be addressed through the wisdom and power of the juror, and that it can be done with complete moral certitude.

But here is the kicker, and it is a grand one. If, by some measure of miracle, rape shield laws were suddenly overturned and wiped clean of the statutes, there would still be just cause for nullification. This is a point we would have come to naturally had the Cabbie assisted us with taking this debate to its scheduled conclusion. His failure to contribute notwithstanding, we can get there anyway.

As it stands right now in many, rather, most jurisdictions, the only evidence needed to convict a person of rape is the alleged victim’s word that it happened. We saw this in the case of Vladek Filler, before his conviction was overturned. It was overturned not on a lack of evidence, but on misconduct by prosecutor Mary Kellett. Had she not been caught misleading the jury, the conviction would have stood, because all the jury was required to hear was the complaint of Ligia Filler in order to convict. Given that Ligia Filler’s propensity to lie was withheld from the jury, it left Mr. Filler wide open to false conviction.

The same was true more recently, in July of this year, for Darrell Williams, an Oklahoma State basketball player, who was convicted of sexual battery and rape by instrumentation solely on the word of his accusers. The Sun Times article title, Conviction but no tangible evidence, tacitly conveyed the injustice, but it did not do the young man any good.

As it stands now, the standard of evidence required to convict a man of rape in a criminal court is utterly indistinguishable from the standard of evidence required to lynch a Black man for rape 50 years ago in Mississippi. It requires only the word of the alleged victim, and the willingness of others to commit violence on her behalf in retribution.

There is no shortage of accusations, and the state has set itself up as the instrument for that violence by proxy, as surly as if it were a legislated lynch mob.

That lack of standards, combined with the effect of rape shield laws to protect the credibility of the alleged victim from falling under direct scrutiny, is the combination of forces that form the perfect storm of unchecked injustice. This is addressed by Bruce Gross, Ph. D., JD, MBA in The Forensic Examiner, in his article False Rape Allegations: An Assault on Justice:

Although it may not be “politically correct” to question the veracity of a women’s complaint of rape, failing to consider the accuser may be intentionally lying effectively eradicates the presumption of innocence. This Constitutional right is especially significant when dealing with allegations of rape as in most jurisdictions, sex offenses are the only crimes that do not require corroborating evidence for conviction. Because there are often no witnesses and no physical evidence (especially if the victim delays in filing a report), the case may come down to the credibility of the accused versus the credibility of the accuser.

The realm of false allegations is intimately tied to the need for nullification, but I will pass on including it as a part of this particular argument.

The fact that sex offenses stand alone as the only crime for which corroborating evidence is not needed for conviction makes them, in my opinion, as a slam dunk for the legitimacy of nullification.

We have another word for “corroborating evidence.” We call it proof; the kind we like to have for convicting under the standard of reasonable doubt. As difficult as it is to be the victim of any crime, including rape, are we really going down the path of elevating the victim’s trauma to the point it supplants the need for evidence and due process in the course of obtaining a conviction?

Indeed we are. We are, in fact, very far down that road, even with the blessings of supposedly rational thinkers like Johann the Cabbie.

Were there another way to address this problem, I would enjoy entertaining it. The system is far too broken, too corrupt and too politicized for conventional redress. Extreme injustice calls for extreme retaliation. Luckily, nullification by jurors remains available as a legal, moral answer to the states failure to contain its power and to abide by the mandates of the Constitution.