A fact is a simple statement that everyone believes. It is innocent, unless found guilty. A hypothesis is a novel suggestion that no one wants to believe. It is guilty, until found effective.
[Delphidius said] “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c.
It was 4:14 p.m. on Sunday, February 5, 2012 when I learned that Josh Powell blew up his house with his children and him inside during a supervised visitation period.
Unless there turns out to be more to this story (i.e., a man killing himself and his two innocent, minor children in cold blood) than meets the eye, then without question, Josh Powell deserves to burn in Hell.
But this story worries me for what it means to all the other fathers out there who are involved in one custody dispute or another.
I am worried that now lying, opportunistic mothers, shrill “advocacy” groups, ambitious state attorneys, and lazy, amoral, careerist judges will tar every decent man going through a child custody dispute with the Josh Powell brush.
Better safe than sorry and erring on the side of caution are not the standards of proof by which we assess and decide child custody.
While it is true (no point in denying it) that men commit the overwhelming majority of violent or abusive acts, that does not make every man a thug who simply has yet to get caught. That does not mean we “err on the side of caution” when a custody dispute arises. Josh Powell is an aberration, and for every such Josh Powell there’s a Susan Smith<http://en.wikipedia.org/wiki/Susan_Smith> or a Stephanie Sloop<http://www.cbsnews.com/8301-504083_162-20005100-504083.html> (remember Ethan Stacy’s mother?).
The law does not permit discrimination on the basis of sex, even when the discrimination is asserted for the purportedly noblest purposes.
We victimize innocent parents and children alike if we fall for what I call the prejudice of the accusation. If I stand up in the proverbial dark, crowded theatre and yell “Fire!,” few people in that theatre will stick around to question or analyze my statement. Instead, motivated by fear (and the survival instinct), they will run for the exits in a panic, pushing others aside and trampling each other in a mad dash for the exits, and sort the truth out after the danger (or perceived danger) has passed.
Likewise, if I accuse a parent of being “violent,” “unstable,” or a “child molester,” police, DCFS, and courts will frequently fail to question or analyze my statement. Instead, motivated by fear (and the laudable desire to protect kids), they will rush to judgment, issue a bunch of “temporary” protective orders (which last for months), and then sort the truth out after the danger (or perceived danger) has passed. Due process be damned–hey, we’re talking about protecting women and children here! Poor dad/husband, however, cannot make an impassioned denial. “He’s a child rapist!” is impossible to overcome with a paltry “No, I’m not.”
I am indebted to the thinking the blogger Gideon of apublicdefender.com, particularly this entry: http://apublicdefender.com/2010/04/04/the-presumption-of-guilt/ for the rest of my thoughts. And I hereby give Gideon credit where credit is due:
The media coverage, if any, is almost always slanted against the accused. Unbiased, non-sensationalist reporting is almost non-existent.
But there’s always a hearing or trial, you say. A determination of guilt or not-guilt to be made by the court! And the court is an experienced jurist sworn to be impartial and to uphold the constitution and the laws of the State! In theory, yes; in practice, not so much. The presumption favors the accuser. If the woman has mustered the courage to accuse the man, then, well…
To cite Gideon almost verbatim: “If you had a client in whose case you believed the accuser’s evidence could not sustain the burden, would you dare rest without putting on any evidence? Do you have that much faith in the courts? I have this belief – it may be a naive belief – that most trials are won not because the court held the accuser to her burden of proof, but because the defense overcame the presumption of guilt.
The preponderance of evidence standard exists in name only; a lofty ideal that we can shout from rooftops and frame in calligraphic script on the courthouse walls, congratulating ourselves on professing to be a just society.
The real truth, hidden in the backrooms of courthouses and in the ugly, dirty trenches of everyday warfare is quite different. Every man (and yes, sometimes a few women) accused of abuse, and his lawyer, face a nearly insurmountable task: overcome the fact that almost everyone is either willing to believe your client is guilty or willing to treat him as such by self-servingly invoking the all but unquestionably “principle” of “protecting children.”
So damn you, Josh Powell for what you did to those children, but damn you more for having ruined it for innocents everywhere. And damn those who try to exploit the actions of Josh Powell for their own selfish, fraudulent purposes.
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