Limiting Litigation

While taken for granted in this modern age, a significant portion of the western world has a very unique notion concerning the law and the prosecution of criminals, particularly in the United States: that the accused is considered innocent unless proven guilty.  But most people who have been accused of criminal behavior come to understand that there is a significant caveat to this idealistic notion; namely, that the mere accusation of criminal behavior is itself an injurious act, and comes with its own collection of consequences, including social, mental and fiscal harm.

Although the existence of these consequences might be unavoidable, the question remains: can these consequences be, at the very least, discouraged, particularly in cases dealing with people genuinely innocent of the crimes of which they have been accused?  In fact, this is an issue in law which has been a matter of consideration for at least four millennia.  As far back as the time of perhaps the first legal code presented by theBabylonians under Hammurabi – dating to c.1754 BCE – deterrents have been accepted in the law for accusations which prove to be false.

Yet, despite this apparent antiquity in the discussion of the question of deterrents, in the United States – and in Utah in particular – this issue seems to have been forgotten.  The accused are subjected to some horrendous, life-altering consequences, even if they are ultimately found innocent of the accusations.  Moreover, those who make the accusations are left relatively untouched by any consequences, and indeed, are encouraged to continue bringing baseless accusations regardless of the probable innocence of the accused.

To fully realize the extent of the problem with the present legal system, three factors must be considered.  First, the consequences an accused individual faces simply from being accused, whether innocent or guilty; second, the incentives offered to accusers to make unfounded accusations of criminal activity; and third, the alternatives which have been present for as long as 4,000 years.

1) The Consequences

a. Social Consequences

In the United States – and in Utah in particular – most accusations of criminal behavior are a matter of public record; that is, for those with the proper resources, these accusations and charges can be accessed and exposed.  While the specific details of an accusation might be protected from public revelation, the charges themselves are open to public examination.  This has the potential to have significant consequences to an accused, ranging from the loss of employment opportunities to devastating familial strife.  Jobs might be lost, the accused might be ostracized and even the right to visit one’s children might be curtailed, all without ever being convicted of a crime, but simply accused.

b. Mental Consequences

Hot on the heels of the consequences of social humiliation and ostracism, the mental strain on an accused can be horrific.  In layman’s terms, the entire world of an accused can potentially be turned upside down.  The stress of losing job opportunities, of having family relations severed and of the simple sensation of complete powerlessness can have a devastating effect on the accused.  Even the simple requirement to appear in court can bring significant humiliation, while the indignity of being accused of a crime for which one is innocent rubs salt in the wound.  The resulting suffering – even if the accused is found to be innocent – can have long-lasting, devastating consequences.

c. Financial Consequences

 Contributing to both the social and mental stress caused by being accused of criminal behavior are the fiscal issues which are inherent in simply proving one’s innocence.  In the first place come the attorney fees: having a competent criminal defense attorney is often the only way to actually prove that the accused is innocent of the charges against them.  These fees can be exorbitant, stretching into the tens of thousands of dollars, and are generally un-recoupable.  What’s more, fees for private investigators, expert witnesses and extended trials can compound the bill, with the result of a devastating financial burden on the accused.  Indeed, the cost to prove innocence can be almost limitless; even being appointed a public defender (an often unenviable ordeal), has the potential to cost the accused.

2) The Incentives

a. Financial Incentives

With such devastating consequences having to be borne by an accused defendant, it comes as no surprise that the primary motive for the accusation is often simply profit.  An innumerable body of individuals and organizations conspire to promote a case, even when the evidence clearly indicates innocence: police officers earn their wages, courts collect their fees, prosecutors work their hours and bailiffs prove their necessity, to name a very, very few.  In fact, hundreds and even thousands of hours of work time is often justified simply by proving that someone is innocent, and with Utah State footing much – if not all – of the bill, very few of the individuals involved in prosecuting false allegations are even incentivized in the slightest to ever end a case.

b. Political Incentives

Of course, where so much profit is at stake, power inevitably becomes a matter of concern, and so politics enter the stage.  From the District Attorney to the Attorney General, elected officials are interested in proving their worth.  As such, the more cases they can collect during their term – particularly high profile cases – the greater their odds are of attracting the attention of the media and thereby securing their position during a future election.  It matters little whether the accused is found innocent or not; ultimately, it is their name in the press that matters most.

c. Personal Incentives

There are an innumerable amount of personal incentives an accuser might have for bringing a case against an accused defendant.  From the child who wishes to punish their parent, to the police officer who wants to harass a citizen, to the plaintiff who wants to sue for some superfluous injury; the potential incentive for making accusations here is truly endless.   What’s more, with few financial, legal or even moral consequences to making false accusations, there is little to deter such mundane motivations.

3) The Alternatives

a. Ancient Solutions

While the western world generally continues to function with a legal system designed to exploit the accused for the benefit of the accuser, the question of superfluous accusations is not a new one.  As already mentioned, some four thousand years ago, the Laws of Hammurabi were in effect in Ancient Mesopotamia (modern day Iraq), and there was a notable deterrent to accusing the innocent of criminal activity.  The very first law itself sets the tone for this ancient society: “If any one ensnare [i.e. hold on accusation of a crime] another, putting a ban upon him, but he cannot prove it, then he that ensnared him shall be put to death.”  The code continues: “If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.”  Even the judges themselves were not immune to reprisal: “If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he [the judge] shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgement.”

In short, the spirit of the law is one of reprisal against false accusers.  If a person were to accuse someone of a crime – or to render a judgement against an innocent person – that person would be punished.  Whilst some of those punishments might seem extreme (putting a person to death for holding them on the accusation of a crime), one must keep the period in context: death was a common punishment, as the code demonstrates, and so accusations of criminal activity were not insignificant in nature.

What’s more, the Laws of Hammurabi demonstrate that even the judicial power of the state was not immune from retaliation for convicting the innocent accused, with judges themselves being fined and removed from office for even allowing wrongful convictions.  Compare that to the modern day: authorities, like the former Judge Ward of the Salt Lake City Justice Court, convicted on federal drug charges with intent to distribute (a charge which potentially carried a 15 year prison sentence), being given a jail sentences of a mere 90 days – a “slap on the wrist.”  Even more disturbing, no challenges to Ward’s previous rulings and convictions – Ward began sentencing defendants in 2002 – have been made (to this writer’s knowledge), and considering the serious criminal activity of the former judge, such challenges might certainly be warranted.  Even were such challenges to be made, however, it seems doubtful that Ward herself would suffer any significant personal consequences.

Most importantly, this structure of a legal code accomplishes one significant goal: it deters accusers from accusing an innocent person.  Consider how much more caution would be required by police officers if their necks were literally on the line whenever they arrested someone; if they would be put to death if that individual was found to be innocent.  Consider how much more cautious judges would be about applying fines, if they themselves had to pay twelve times the fine amount if the conviction of an accused was proven false.  Superfluous accusations, arrests and convictions would be dropped like stones, and if anything, law enforcement and the legal system itself would become much more cautious, and more importantly, efficient in their work.

b. Modern Solutions

Despite Utah’s present-day legal system having gone backwards in many ways, there are modern examples of legal systems which are attempting to embrace a spirit similar to that of Hammurabi.  A good example of this is the present debate going on in Denmark over punishments against accusers who make false claims of rape.

In Denmark, individuals who are proven to have made false allegations of rape are liable to punishment, although the severity of the punishment seems somewhat wanting – one of the many clear distinctions from the ancient Code of Hammurabi.  To take an example, in 2012, three men were jailed for 14 months after being accused of raping on 18-year-old woman.  When the woman was recorded admitting the allegation of rape was false, the men were released and provided financial compensation, but when their accuser was convicted of engaging in the criminal activity of giving false testimony, she was sentenced to five years of “psychiatric care.”  What this sentence constitutes is uncertain, but it certainly seems more lenient than time in jail.  Nevertheless, the compensation alone no doubt provided a powerful cause not to pursue cases with a weak evidentiary foundation, and has likely made prosecutors double check their work, at the very least.

Even so, the Danish Center for Gender, Equality and Diversity, has referred to false allegations of rape as “a serious problem,” whilst at the same time commenting that “many victims refrain from reporting sexual assaults because they are afraid no-one would believe them.”  Although this exposes a fundamental difficulty in the concept of deterring false accusations (i.e. encouraging victims to remain silent), it nevertheless represents a modern day attempt to at least address the superfluous – not to mention costly – false accusations of criminal behavior.

As with most problems in society today, ultimately there is no easy solution to the problem of wrongful accusation.  One solution simply gives rise to the need for another, reflecting the metaphorical hydra’s head.  That said, whether or not the problem of wrongful accusations can ultimately be solved is one question; whether or not we should, as a society, be attempting to solve it, is another.  Given the vast resources Utah invests in attempting to maintain the rule of law and justice – the sole moral justification for which being to protect the innocent – it makes sense to at least make an effort to protect the innocent until they have been proven guilty.  Heads need not necessarily roll – as they did in Ancient Mesopotamia – but certainly some disincentives should be in place to prevent superfluous allegations, charges, and criminal cases; regrettably, Utah remains lamentably lacking in this respect.

Photo Courtesy of: Graphics

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