Hard Cases

There is an adage in the study of law that holds that "hard cases make bad law". It essentially means that, in seeking the desirable solution for a particular problem with which we are confronted, we may put into place rules that are not only unworkable, but quite undesirable in the cases to which they will be subsequently applied.

I see something going on in our society right now that is provoking "bad public sentiment," if I can apply the legal adage in a different context. A young woman was sexually assaulted and then hounded by social media sharing of photos that were apparently taken during the incident. She recently committed suicide, and the community outrage is entirely understandable and legitimate.

Here's where things go off the rails (not that the original incident and the social media harassment were not outrageous and completely objectionable, but I want to discuss our collective reaction to this awful crime). Anonymous claimed to have identified the culprits and threatened to publish their names in social media, but has backtracked on that, preferring that the persons responsible be punished under the law and not simply humiliated publicly. This backtracking has not stopped other individuals claiming to know who did what from publishing names and pointing fingers, quite possibly at innocent parties.

What alarms me is to see the bandwagon effect with respect to the idea of naming the perpetrators, all because of the nature of the original crime and the tragic outcome of what is surely criminal harassment that followed. I agree that these things are awful and reprehensible, but I am not ready to renounce the protection of my civil rights as a consequence of the horror of the original events.

What? Well let me outline a few of those protections that we have decided are appropriate in our society:

• The presumption of innocence. I remember reading (in translation) some of the debates in the Soviet Union around the adoption of their criminal statutes early in the existence of that state. One representative referred to the presumption of innocence as "worm-eaten dogma of bourgeois doctrine". I do love hyperbole, but it wouldn't be completely outrageous to question the effectiveness of this legal principle in a context where many accused do not face trials, but feel compelled to plead guilty for lack of resources to fight the charge (the rate of pleading down the charges is really quite high). In this case, however, the presumption of innocence bit is about not publicly pronouncing someone guilty before – or in lieu of – the laying of charges and the completion of a trial.
  
• The right to face one's accusers. This is all part of the trial process, too, allowing both sides of the trial to test the validity of the facts that are being presented and the credibility of the person bringing the evidence. It goes without saying that an anonymous source of information could not meet this standard.
  
• The right to protection from unreasonable search and seizure. Linked inextricably to the previous point, this is about how the information Anonymous claimed to have was obtained by them. When the police and the prosecution bring forward evidence, there are rules that apply to ensure that laws are not broken in the gathering of that evidence. These are the laws that prevent the police from breaking down our doors looking for anything they want. With unidentified computer hackers, you don't get a lot of control or surveillance over the means of collecting evidence. Non-state actors, you say? Can we be sure?
  
• A differentiated treatment for young offenders. We recognize as a society that children develop awareness of the impact of their actions over time, so we set a minimum age of criminal responsibility, but we also put into place a system that treats them differently if they commit crimes, with more emphasis on teaching the lesson and returning to society a more responsible citizen. An important part of ensuring that the second chance will work out well is the non-reporting of the names of young offenders, even after conviction, so the usual biases that would push them to a lifetime of limited choices (our tendency to exclude those with any kind of criminal record) will not turn them into lesser citizens forever. You've probably caught on to how the publishing and non-publishing thing might be in conflict if any of the accused persons should turn out to be under 18.

As someone active in the fight against HIV/AIDS, I have been disgusted by the use of criminal law to prosecute cases of non-disclosure of HIV status in cases where there has not only been no transmission, but also where there was no scientific likelihood of transmission. The parallel with this situation is in the proposed treatment of the accused, police being alarmingly likely to publish names, photos and medical details of an accused in the search for "other victims". Some time ago this went to the extreme case of a young woman (under 18) being sought through such public methods of vilification, and this despite the legal barrier to reporting the name of an accused or a convicted young offender.

I often get to feel like the extremist civil libertarian who would let killers walk free when I insist on the respect of these "technicalities" in the system. Surely it isn't unreasonable to expect that the enforcement of the law should not involve any breaking of the rules in doing it.