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Presumed innocent?

Written on 14 April 2000
See also the 2003 update below

There are at least six heroes in a northern NSW town. Their acts are not of the conventional heroic kind. Some may have been driven to their heroism not by any sense of principle or interest in the general well-being, but through selfishness or simple curmudgeonly character. Their punishment is likely to be no more than enduring sidelong glances from neighbours. Even so, I hope I would be brave enough to be one of them.

The story is well-known. An elderly lady was raped on the first day of last year in the town of Wee Waa. Conventional enquiries having led no where, the NSW Police are urging all males between 18 and 45 years to provide saliva samples so that they can be eliminated as suspects. Some six hundred townsfolk -- almost all of them -- are volunteering to submit to this, along with being photographed and thumb-printed. Six are not.

I have little doubt that all, or almost all, of the men cooperating with the police operation are community-minded types, helping because they want above all for the rapist to be caught. Everyone wants that, except perhaps the rapist himself. But at what cost?

Ignoring for the moment the issue of civil liberties, this testing program suffers from the same defect of reasoning as so many other government policies. The problem is that those policies seem utterly logical if you overlook one important point: there will always be dissenters. Gun control laws merely disarm the law-abiding because criminals, by definition, do not obey laws. Drug laws do not stop people from getting drugs, they simply ensure that in Australia 600 people a year die because illegal products are shoddy products.

Actively dissenting from drug and gun laws is illegal. So far our six heroes' dissension remains legal. But the fact that they are dissenting at all destroys the whole of Wee Waa's DNA testing program. An elimination trial can only work with one hundred per cent compliance. You cannot prosecute a group of six for rape, even if every other person in Australia at the time of the offence were to be incontrovertibly proven to be innocent. The police could not even obtain a search warrant for these men's homes on the basis of this test.

So why do I call these men heroes? Do they not have a general duty to their community, and specifically to Ms Rita Knight, to cooperate with the Police? After all, the call to duty was not especially onerous: a simple oral swab, a photo and a bit of ink on the thumb. Nothing that any of us would baulk at if, say, our doctor considered it necessary to diagnose some medical inconvenience. And, in any case, the Police have promised to destroy the samples for each man as he is eliminated.

These are very strong reasons for participation. The argument against it must always seem weak because in the face of a possibly great good (the apprehension of a rapist) it can only offer philosophical cautions about the dangers of a society in which innocence must be proved, in which the police as agents of the State have excessive power, in which powerful and immediate goods are given more weight than subtle and long-term goods.

Those dangers carry a low weight for people in modern Australia. We live in a land and at a time where past and foreign abuses of power are sincerely regretted. So far do we seem from such shameful episodes as the barring of immigrants on racial grounds, the physical torture of prisoners, the destruction of families on specious racial claims, that our society is undergoing remarkable turmoil over the extent to which those wrongs may be righted.

Yet have we not already become so caught up in the identification and solving of immediate problems that airy-fairy rights are constantly being driven back? The general good of free speech has been pegged back in pursuit of the specific good of protecting some from being angered or hurt by offensive remarks. The general good of private property is fighting a last rear-guard action against property regulation, taxation and confiscation, all operating with the aim of achieving particular, targetted goods.

This, it seems, is inevitable.

Taking from the rich and giving to the poor, controlling the strong and helping the weak, will always be far more powerful political messages, and attract more votes, than standing for generalised principles.

At least until we begin to recognise how much we have lost when those principles have been abandoned. When the excessive controls begin to impact upon the consciousness of many of us. When we realise that injustices are not merely confined to places beyond the waters and times before many of us were born.

Meanwhile, in Wee Waa, six men are fighting, with this intention or not, an action that may defer that time.

All I can hope for now is that, as disgusted as I am by any rapist, that the DNA testing program fails, and that the rapist is caught by some other means. The last thing we need right now is a success for injustice.

© 2000 - Stephen Dawson

UPDATE: Written 28 May 2003 and originally posted at the Australian Libertarian Society Web site

"If people are willing to voluntarily give their DNA, then we will take a sample," [Sergeant Jim Muscat] said. "If they refuse, then we will document that."

Police sources said those who refuse to provide samples will be listed as potential suspects until investigators are able to eliminate them as such.

So says this newspaper article from The Toronto Star. Police are seeking swabs from males aged 16 or more across a large section of Toronto in their pursuit of the murderer of a ten year old girl. Although it doesn't say, I presume that the criminal responsible left some kind of DNA marker (blood, hair, semen, etc) on the poor child's body.

Something similar happens in Australia from time to time.

Now, should there be a murder in your region and the police show up to sample you, as part of a mass voluntary screening, would you consent? Or would you refuse on principle?

Me? I'm ambivalent. While there's nothing wrong in principle with voluntary screening, I wonder if it could be a step onto a particularly nasty slippery slope. On the other hand, should police knock at my door and ask me if I had seen anything relating to a crime, I would be happy to help either way.

I think that what makes me most uncomfortable is that the process relies upon total compliance. If everyone complies (and the guilty party is amongst the target group), then the murderer will be identified. If everyone other than the murderer complies, then things will look pretty bad for him. But I would expect that in any significant population there will be a few die-hards who would refuse, so total compliance is rarely likely to be achieved. The fewer the hold-outs, the more the pressure upon them, including (unless the police already have a pretty good idea who dun it) possible deep police investigation into them. Not a nice prospect.

So what would you do?

© 2003 - Stephen Dawson