We do not know if Roy Moore is guilty or not. He has not been on trial and no facts have been presented to the public or a jury to make a credible determination. There are many accusations and allegations, the likes of which are troubling and of the most heinous nature. With that said, we neither like Roy Moore, his political leanings, or the values and policies for which he stands. He is a threat to civil rights and his refusal to take a knee in the upcoming election demonstrates the inequality he represents.
The Roy Moore issue highlights the grand misconception of the democratic American experiment and its criminal justice practices: that the accused are innocent until proven guilty. The concept is one that has been well marketed and sold to Americans for decades. However, there is no constitutional provision, guarantee, or right to the presumption of innocence. It is, as some legal scholars have called it, the great misnomer of criminal prosecution.
It was not until more than a century after the signing of the U.S. Constitution that the Supreme Court contemplated the premise of innocent until proven guilty. In 1895, the Court decided Coffin v. United States and the Justices arrived at the conclusion that civilian belief in a presumptio juris demonstrated favor for the accused.
Ironically, the very notion of innocence in American jurisprudence had an early advocate in Rev. Increase Mather of the notorious Salem Witch Trials. During the height of the witch scare and trials of 1692, Mather wrote his famous interpretation of Blackstone’s formulation, adopting it for witches: “It were better that Ten Suspected Witches should escape, than that one Innocent Person should be Condemned.”
Over 325 years later, America is still struggling to embrace Mather’s condemnation of the witch trials to reconcile convictions in both the courts of law and of public opinion. A sex-offense allegation in 2017 carries approximately the same weight of denouncement as a witch in 1692 — and the evidence against the accused is sometimes equally “spectral” and thin. As with the Witch Trials, a presumption of innocence does not exist by any stretch of the law.
While the courts have tried to mitigate the damage caused by finger pointing and its impact on a criminal trial — through measures like not having accused appear at trial in handcuffs or prison garb, jury instructions, etc. — once the accusatory finger is aimed, it is impossible to recall the bullet of indictment. As a nation, we generally like to believe that if we are accused of a crime we should have no fear of conviction unless the government can prove us guilty.
According to the 1972 Handbook on Criminal Law, by Wayne R. LaFave and Austin W. Scott, Jr., the presumption of innocence is not a presumption in the legal sense. “It is not even a presumption in the popular sense of a thing which is more likely to be true than not, for statistically more people who are charged with crime are convicted as guilty than are acquitted.” Relying on statistics — more than 95% of all present-day criminal cases in the United States result in a conviction — seems to prove LaFave and Scott’s postulate.
In America, a criminal allegation or charge is nearly as damning as a conviction — especially when that allegation revolves around a sex crime against a child.
For practically anyone accused or charged of homicide, rape, assault, or any number of major felonies, public shame, humiliation, and isolation are corollary consequences. In many instances, it does not matter if a trial is held or a conviction had; the instantaneous verdict of public opinion is enough to deprive any man or woman of their reputation and livelihood. Either by circumstance or demand of their employers, most people in Moore’s position would have been forced already from their employment.
That Moore is a government official vying for public office should have no bearing on his ability to retain his position and continue campaigning. If a teacher from Oklahoma must resign his job because of an allegation of a sexual nature, so should Roy Moore resign from any office and advancement — whether he is guilty or innocent.
Allowing Moore to continue in office is not a question of supporting a potential sex offender or not. It is about recognizing the fundamental concept of equality. Those in positions of power or government must not be entitled to exceptional privileges or rules, either for the title of their office or the balance in their bank account.
Already this year, America has witnessed the fall of public figures and media professionals caught in the widening gyre of sex-assault, abuse, and harassment allegations. In each case, established careers and positions have been obliterated. Roy Moore should not be an exception for want of a vote on a hushed and hastily drafted bill to appease King Don.
The question now, is not whether Roy Moore is guilty or innocent. It is not about whether he should be allowed to run for the Senate or not. The primary question facing America is whether one man deserves special treatment over another.
In a nation still struggling to balance the scales, close the economic divide, and hold all peoples equal, we say he does not. We do not care if Roy Moore is guilty, but we do care about the integrity of our nation, its government, and our leaders. We cannot trust that integrity when any politician — no matter who it may be — believes that he or she is above the law.