REASONABLE DOUBT

Posted in Rants on August 30th, 2015 by Ed

Longtime readers know how much I love me some hockey and the Blackhawks in particular. So earlier in August you can imagine how disappointed and grossed out I was to hear that mega-star Patrick Kane was accused of sexual assault in his Buffalo home. It is, sadly, the latest in a long line of incidents involving Kane, although the previous problems fell under categories like "immaturity" or "poor judgment." Apparently he has graduated from being a jackass to being a criminal.

Not that I expect the legal system to reach that conclusion.

One of my family members was a public prosecutor for about 30 years and he has noted on several occasions that sexual assault cases are among the hardest to prosecute successfully. Of course most instances of rape never result in so much as a police report let alone prosecution, but among those that do the nature of our justice system (and culture) favors defendants more than usual. It's one of a few instances in which judges and juries must not only consider whether the defendant is guilty of a crime but whether a crime was committed at all. If both parties agree that sex took place but disagree about whether it was consensual, it's not exactly like dealing with a burglary case.

In the Kane case the accuser did every one of the "Well if she was really raped, why didn't she ____?" things that the Men's Rights crowd inevitably brings up. She called the police and reported it. She went directly to the hospital. The "story" is uncomplicated and consistent. Unfortunately the police are spending a great deal of time investigating things that ultimately are irrelevant. How drunk was Kane at the club? Did the woman flirt with him there? Nothing anybody saw in public at a bar matters. If the woman was climbing all over him and said "LET'S GO HOME AND HAVE SEX" in the presence of a dozen witnesses, it doesn't matter. If she got to his house and decided "Nah, I changed my mind" then that's that. People have a right to do that. Women (or men) aren't contractually bound to deliver sex at Point B because they had agreed to it at Point A. This isn't selling a car.

The much-publicized fact that Kane left a bite mark on the woman is also going to be of limited value to the prosecutor. I mean. Let's be real for a minute here. Raise your hand if you've never given, nor received, a bite mark from another human being during an intimate encounter. So it wouldn't be terribly difficult for Kane's (no doubt extremely expensive) attorneys to argue that such evidence was merely part of a sexual encounter that both parties participated in willingly.

Do I believe that? No. Does it look like he did commit rape? Seems more likely than not to me. But "Seems more likely than not" is not a useful concept in a criminal case (civil trials are another matter). There were no witnesses to the actual sex/assault. No videos and pictures, at least not that the public has been told about. She will tell a jury what happened and his lawyers will say "It happened but she agreed to all of it." And the odds that the jury will overlook that alternative explanation to drop the hammer on the rich NHL superstar and local hero are vanishingly small.

The justice system gets a lot of things wrong. Sometimes that's because it isn't working. In other cases it's because it works exactly as intended. With some crimes, guilt beyond a reasonable doubt is an impossibly high bar.