Indicting John Doe

Dahlia Lithwick complains (*) about the practice of issuing “John Doe” indictments in cases where police have a complaint of rape and a DNA sample but no identified defendant, in order to stop the clock on the statute of limitations.

I share her concern about the difficulty in defending old cases, and agree with her that stopping the clock is no substitute for adding the resources needed to get the job of matching samples done in a timely fashion.

But in this case, I can’t agree with Lithwick that there’s a substantial risk that actual injustice will be done. A semen sample in a rape kit is proof of intercourse. So the only remaining question is consent. How many women actually have consensual sex with men whose names they don’t know and whom they have no other way of identifying?

Yes, I can imagine the circumstances in which it could happen — a frat party, or a bar pickup followed by a drunken one-night stand — but most of these cases aren’t going to be “date rapes”: they’re going to be run-of-the-mill, jumping-out-from-behind-the-bushes rape rapes.

If the lawyers have figured out a way to keep the statute of limitations from protecting the perpetrators, I say “Good for them!” I suppose I’ll just have to get my civil libertarian ticket punched next time.

Update The case for doing a “John Doe” indictment is especially strong in serial-rape cases, where the semen taken from several complainants matches. * In those cases, the probability of innocence approaches zero.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com