Fear and loathing: New York’s top court comes up with a crazy decision. Could the fact that this case involves a sex offense explain the ruling? Have a look at Jacob Sullum’s incisive report for Reason. Appellate Squawk, an erudite appellate defender whose identity is kept a closely guarded secret, has a short, pungent post on the case as well. -Bill Dobbs, The Dobbs Wire
April 30th, 2018
Comes now New York’s highest court with the holding that an accuser’s trial testimony constitutes clear and convincing evidence of the truth of her accusations, even though the jury found her not credible and acquitted the defendant of those charges.
In a 6-1 opinion, with only the redoubtable Judge Rivera dissenting, the Court upheld the lower court decision putting the defendant on the internet Sex Offender Registry for the rest of his life based on acquitted charges.
Never mind that the Sex Offender Registration Act (SORA) requires that risk level be determined by evidence that is “clear and convincing.” Although that’s a lower standard than “beyond a reasonable doubt,” it’s higher than mere preponderance. Defined as “highly probable” and “unequivocal,” it’s the level of proof required in civil cases where basic personal liberties are at stake. And you can’t get much more equivocal than accusations that the jury expressly discredited in a “he-said-she-said” sex case.
Naturally the Court doesn’t admit that it moves the goalposts for sex cases. But these days, when it comes to accusations of sexual misconduct, the standard of proof is that they were made. The Court is simply going with the flow — which by definition, is downhill.