By Norm Pattis
I've been practicing law just long enough to know that I will never make sense of it all. It’s not that I am stupid, although my shortcomings are certainly an issue. The larger truth is that the law is irrational. It bumps, grinds and gyrates in ways that simply make no sense.
This is especially true in criminal cases alleging sexual misconduct.
Suppose a man is accused of rape. He is, of course, presumed innocent, but the details of his arrest are made public. In the eyes of many, he is condemned by mere accusation. We know the shaming power of a public accusation. Indeed, we know how devastating it is to be an accuser. Hence, in court proceedings, the alleged victim is accorded every courtesy: her name is kept from public view. Even if she testifies, the court engages in elaborate choreography to make sure her name is never mentioned aloud.
Why isn’t the accused accorded the same courtesy? He is presumed innocent, right?
But things often get worse.
There is a general rule against propensity evidence in the law. You can’t show that a person is likely to have committed a crime by demonstrating that he has committed all sorts of other bad acts. A person stands trial for the offense charged. His character is not at issue.
There are exceptions to this rule, of course, as there are to almost every other rule of law. The state can offer evidence of other acts to show intent, motive, absence of mistake, and all sorts of other factors. But in general, the rule against propensity evidence is strictly enforced.
Except, you guessed it, in sexual assault cases.