will Nebraska legislature upend justice?

The Omaha World-Herald reports that the Nebraska Legislature is looking at policies and procedures for sexual assault reports from within the legislature and its staff. The #metoo movement has all kinds of people and institutions wondering if they will be the next in the sexual harassment/assault spotlight.

The World-Herald tells the story of a state senator who crossed the line:

The female legislative staffer said it started with sexual innuendo and remarks like “Do you want a back rub?” and progressed to suggestions from her boss, a male state senator, that she accompany him, alone, to social events. 

Then one night, at midnight, came a telephone call: “Can I come over to your house?” 

That’s when the staffer, now retired from the Nebraska Legislature, put her foot down. 

“There were things that you kind of toss off, but when he did that, I said ‘This has to stop,’ ” said the staffer, who spoke on the condition that she not be named. 

These kinds of stories, relayed in more than two dozen interviews with current and past legislative staffers, state senators and lobbyists, suggest the State Legislature is not immune to the type of sexual harassment that has spawned the #metoo movement across the country.

The Legislature almost certainly has people among its history who have done things they shouldn't have, who have committed crimes that weren't reported or were reported and ignored.

Also, its history almost certainly includes people who look at past experiences with clear eyes and recognize unacknowledged truths of harassment and assault, and people who look at past experiences and wonder uncertainly if they could say #metoo.

If the #metoo movement makes it easier for victims to report assaults, it will have accomplished a great deal.

At the same time the senators are learning to recognize and acknowledge, they are considering LB 988, a bill that would make affirmative consent, also known as "yes means yes", the law in Nebraska.

Sex without consent is already considered a crime and that is not changing but this bill would change where the burden of proof lies.

Currently, the burden of proof is on the prosecution, requiring that the prosecution must prove--beyond a reasonable doubt--the truth of the accusation. The defendant isn't required to prove anything.

The beauty and good sense of this? When a person's freedom is at stake, we must be certain he is guilty. Blackstone's formulation is at the base:  “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.”

American law has always been formulated that way: innocent until proven guilty. Even when it seems the whole world is sure the defendant is guilty, the law must presume he is innocent and treat him that way until he is proven guilty. 

A good example is the OJ Simpson: The jury did not find OJ innocent; they found him not guilty. The jury decided that the prosecution failed to prove guilt. 

Could the jury have been wrong? Of course, but the slightest possibility that the jury could send an innocent man to prison is so abhorrent that it is worth letting a guilty man go free.

If passed, LB 988 would mean that the accused would have the burden of proof. This turns justice on its head.

The defendant would have to prove that he deserves his freedom and the prosecution would have simply to make the accusation.

When we remember that an estimated 97% of federal and 94% of state criminal cases are resolved with a plea agreement instead of a trial, we can see that justice has already been knocked askew. A plea agreement means the prosecution no longer has to prove guilt to a jury.

It has only to convince the defendant that it is better to take the plea than to risk more severe charges and a harsher sentence if found guilty in a trial.

The prosecution can already convict defendants without the need to prove guilt to a jury. Why pass legislation that would remove the burden of proof from the prosecution altogether?

Freedom is too important to risk convicting the innocent.

Perhaps the possibility that legislators someday might need to defend themselves against accusations--false or not-- will make them move more cautiously.