Joel Jacobsen

You want to know how backward New Mexico Territory was in 1901?  Would you believe - as backward as Slate is today?  The territorial supreme court was filled with patronage hacks appointed from Washington (so, okay, it was thoroughly up-to-date and modern in some respects).  Here's how one of its opinions began:

On a conviction of rape, where there is no corroborating evidence, nor a single corroborating circumstance, and where none of the incidents testified to as attending the commission of the offense are within the domain of reasonable probability, the affirmance of the conviction would be to establish a dangerous precedent. We are of the opinion that there is not sufficient evidence on the part of the prosecution to justify this conviction. There should be some corroborating evidence or circumstance, however slight, or a reasonable probability of the truth of the assault, to justify a verdict of guilty. There is not, in the whole case, any corroborating evidence, nor a single corroborating circumstance, and the probability of the commission of the alleged offense is so far outside of the domain of reason that there was absolutely nothing for the consideration of the jury except the bare improbable statement of the prosecutrix.

("Prosecutrix" was the name used in rape cases to make clear who was the real victim.  Its usage died out only in the 1970s.   See post 139.)   The justices of the brand-new twentieth century didn't spare us their Olympian wisdom:

An outcry in such circumstances, if the prosecutrix were an unwilling participant, would have been intuitive and natural. It would have been the involuntary scream for assistance in impending danger. The outcry is not the result of consideration or deliberative thought. It is always impetuous, and in the feminine nature it is natural and immediate where there is a desire for assistance or protection. ... Surprise never paralyzes the feminine tendency to scream when danger seems imminent.

And, just in case you're still prepared to believe the justices had the slightest interest in providing justice to the woman, here's where they really strain to set you straight:

To constitute the crime of rape under our statute, there must be “resistance,” and it must be “forcibly overcome”; and this must appear by the evidence, to justify a conviction. It is not sufficient that the carnal act be violently accomplished, or that it be without her consent. The lack of consent may be mere reluctance, and a violent accomplishment of the carnal act without consent merely is hardly more than to say that the act was violently done.

Well, it could have been worse for the victim in the case: she could have been married to Justice McMillan, the author of the opinion.  (The case is Territory v. Mares, 65 P. 165.)

But it's not as if McMillan was uniquely contemptuous of the scream-prone gender: he cited cases from New York, Michigan, Nebraska, California, Iowa and Minnesota in support of his conclusion that a conviction for rape can never rest upon the mere testimony of the slut. 

"Slut" is used advisedly, because that's what McMillan meant.  He, of course, wouldn't have been so vulgar as to actually say what he meant, but he made it pretty clear: "there is some of the testimony of the prosecutrix too vulgar to be repeated. It indicates such a degree of familiarity with the depraved parlance of the street and the brothel that the conclusion is imperative that she had an experience of the world not limited to the single alleged incident." 

(So the same man able to contemplate with equanimity - well, perhaps with a sudden racing of his heart, a sweatiness of his palms, a constriction in his throat - the "violent accomplishment of the carnal act without consent" was offended by a woman's use of slang to describe what happened to her.  Is it necessary to add that she was of the lower class, being employed as a servant?  And are you surprised to learn she was also handicapped, being hearing-impaired?  See post 186.)

He quoted a New York judge who overturned a conviction for a shipboard rape: "In such cases, although the woman never said 'Yes'-nay, more, although she constantly said 'No,' and kept up a decent show of resistance to the last,-it may still be that she more than half consented to the ravishment."  (That's People v. Hulse, 3 Hill 309.)

But all that was well over a century ago.  That shipboard case dates all the way back to 1842.  It was the dark ages then.  There's no comparison to our enlightened selves, right?

Well, it's true that in the 1970s, during the first wave of feminism, American states dropped the rule that a rape conviction couldn't rest on the mere testimony of the victim.  The new rule was that if the jury believed the victim, that was good enough.  Specified varieties of corroboration were no longer required.  (The history can be traced in the nearly-lifelike prose of the annotation found at 31 A.L.R.4th 120.  If you don't know what that citation means, it means you've escaped an assault on your literary sensibilities.)

But now Slate - good old Slate, the online magazine founded by Michael Kinsley and home to Dahlia Lithwick - is standing athwart history, yelling Stop. 

In one of those pieces so wonderfully revealing that you can't help feeling a little embarrased for the author (David Feige), Slate has come out foursquare in favor of a return to 1901, if not to 1842.  Ostensibly writing about the Duke case, which I called 14 months ago (see post 102), Feige explains why all prosecutors are, by virtue of their profession, Rosemary's babies:

Mike Nifong [the disgraced DA] did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution.

I honestly wouldn't have thought it possible that anyone, anywhere, would be so recklessly reactionary, so stridently anti-feminist, to actually come right out and call for a return for the good old days when men were legally authorized to rape women so long as they left behind no corroborating evidence.  But here's Feige, living down his name, bold enough to come right out and say that we need to get back to the nineteenth-century patriarch's view of male-female relations.

The article is well worth reading for its humor.  The funniest bit:

As Angela Davis explains in her book Arbitrary Justice: The Power of the American Prosecutor, young prosecutors too often see their goal as winning rather than doing justice. The culture of their offices and the adversarial nature of the criminal justice system push them in this direction. Over time, they move further toward, and eventually across, the line separating fair play from systemic manipulation.

No, not that Angela Davis.  This is Angela J. Davis, who acquired her intimate knowledge of the secret lives of prosecutors as a public defender.   Feige, a fellow public defender, appreciates her insight into the minds of that tribe of sub-humans - if "mind" isn't too strong a word to use to describe the mental apparatus of pod people utterly devoid of moral sense.

No, wait, there's an even better bit:

There are, of course, a few particularly egregious cases [of "prosecutorial misconduct"] that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors.

It's wonderful, really, attaching the label "particularly egregious" and then reasoning from that lighter-than-air premise that the roughly 9,200 judges who found the cases non-egregious must be moral defectives. 

But what I want to know is: why are lawyers helpless to prevent themselves from using that particular word?  "Egregious" is like a verbal tattoo, identifying the bearer as a member of the gang.  My guess is that it's actually a kind of scar produced by the trauma of law school.