The Corner

Law & the Courts

Today in Vox

It feels almost unsporting at times to pick on, the lavishly corporate-funded “explanatory journalism” site by and for millennials with no sense of history and no respect for subject-matter expertise. The irony of Vox is that the site passes itself off, with writing in the most authoritative of tones, as the voice of “wonks” who worship the rule of experts, yet its writers are mostly 20/30-something liberal arts majors with little work experience outside journalism/blogging, and it is often painfully obvious that everything they know about a topic came from Wikipedia and/or the first page or two of a Google search.

Today’s venture by German Lopez into the question of how severely we should punish rapes is something of a classic of the Vox genre, complete with the smug assurance that two colliding liberal pieties (the need to take rape more seriously and the horror of “mass incarceration”) can be resolved without conflict or tradeoffs. It’s practically a requirement of the stylebook for progressive writers to insist that there are never tradeoffs in any policy debate, only virtuous solutions waiting to be imposed over the objections of the benighted.

To be fair, Lopez does at least acknowledge two problems with the progressive narrative on “mass incarceration”: that it is mostly driven by locking up violent criminals, and that incarceration rates rose during a time of skyrocketing rates of violent crime and serious property crime. But he diagnoses the problem of prosecuting rape solely as a matter of police and prosecutors not believing rape victims – with no acknowledgement at all that 1) successful prosecutions don’t just require belief, they require evidence, and 2) there’s an inevitable tradeoff, when you prosecute more marginal cases, that you will increase the number of innocent people who get convicted of sex offenses. And if you believe that the criminal justice system tends to be especially unfair to the poor and racial minorities, well, guess who is most likely to be on the receiving end of those convictions?

That’s not to say more rape prosecutions would necessarily be a bad thing. It is, however, to say that the tradeoffs involved are grave ones that serious law enforcement professionals have struggled with for a long time. Providing accused rapists with less due process in exchange for less serious punishment, as commonly happens on college campuses, ends up being a solution that satisfies nobody and promotes more injustice. And if we’re discussing the culture of not taking rape seriously enough, Lopez completely ignores the fact that it was the liberal wing of the Supreme Court that banned the death penalty for rapists (on the theory that rape just isn’t a serious enough crime to justify executions).

So, what is Lopez’s magic-bullet solution for prosecuting more rapes without increasing the punishment meted out to rapists? Brace yourself:

Now this is an area where lawmakers can be more effective in adjusting the criminal justice system. They can, for example, boost funding to police, prosecutors, and other actors in the criminal justice system on the requirement that they take these crimes more seriously. So perhaps these actors can set up a sex crimes division, which focuses solely on sexual assault cases, and provide funds for the training and oversight required to make this work.

First of all, “boost funding” as the solution for basically any problem could hardly be a more cliche progressive solution. But setting up a sex crimes division as a novel solution? Gee, why didn’t anyone think of that before? In fact, police departments and district attorney’s offices across the country have had special units dedicated to sex crimes for years. Among the many references to such units in popular culture, there’s even a major network television show, Law & Order: SVU, dramatizing the work of one; it’s been on the air for seventeen years. Bestselling author Linda Fairstein, whose 1993 book Sexual Violence detailed the battles to improve the prosecution of rape and other violent sex crimes, was appointed to head the Manhattan District Attorney’s Office’s specialized sex crimes unit in 1976. The Justice Department has an Office of Violence Against Women and already administers numerous federal grants to local law enforcement to deal with sex offenses. You can argue that these programs ought to be expanded, reformed or just more widely imitated, but if you’re bringing this idea to the table as an alternative to prison sentences, you’d be better served by examining their effectiveness than by presenting them as a novel and revolutionary solution.

Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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