Outrage when women are forced to pay for rape kits; yawns when men are denied DNA evidence to prove they aren't rapists

The U.S. Supreme Court has handed down an important -- and unfavorable -- decision for men and boys wrongly convicted of rape, holding that they are not Constitutionally entitled to DNA testing that could prove they did not commit the crime. Before we discuss the decision, it needs to be put in its larger context.

This is a tale of stark, contrasting attitudes that underscores a bleak reality for men and boys wrongly convicted of rape: many people are more concerned about preserving evidence to convict men and boys of rape than they are about providing wrongly convicted men and boys access to what is often definitive evidence to prove they didn't commit the rape.

This attitude is symptomatic of a mindset that manifests itself in innumerable ways, and that we have written about here many times: men and boys falsely accused or convicted of rape are treated as unfortunate but necessary collateral damage in the "more important" war on rape. The fact that this attitude is diametrically opposed to the Blackstone formulation, which holds that it is better that ten criminals escape punishment than for one innocent men to be punished, is of no moment to the persons with this mindset. Let us briefly explore:

During last year's presidential election campaign, Alaska Governor Sarah Palin, the GOP nominee for Vice President, came under media assault because it was alleged that while she was mayor of Wasilla, Alaska, the town began charging rape victims or their insurance companies for costly emergency-room rape kits, which some call the "black box" of sex crime investigations. The accompanying outrage condemned the fact that women should be forced to pay for such kits.

Fast forward to yesterday. In the case of District Attorney’s Office v. Osborne, a sharply divided U.S. Supreme Court held that prisoners have no right to DNA testing that might prove their innocence, even if they pay for it. The New York Times reported: "The court divided along familiar ideological lines, with the majority emphasizing that 46 states already have laws that allow at least some prisoners to gain access to DNA evidence."

"The case before the court concerned Alaska, which has no DNA testing law. Prosecutors there have conceded that such testing could categorically establish the guilt or innocence of William G. Osborne, who was convicted in 1994 of kidnapping and sexually assaulting a prostitute in Anchorage."

In his dissent, Justice Stevens (joined by Justices Ginsburg, Breyer and, in part, Souter) summed the the fundamental unfairness of a law that withholds such evidence: "The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all."

Why is there no outrage over Alaska's failure to provide the wrongly convicted with the evidence to prove they didn't commit the crime (at the accused's own expense) akin to the outrage we heard last year over one Alaska town's policy to charge women for rape kits?

And please, please, don't try to dismiss this point by telling me these are two different things. Of course they are two different things -- any comparison involves two or more different things. But regular readers of this blog understand that outrage for the one thing and yawns for the other spring from a common mindset -- a mindset that says we care more about nabbing rapists than about protecting the innocent from wrongful arrest and conviction.

There is nothing inconsistent about supporting both the free availability of rape kits (while tempering some of the other problems that pose risks to innocent men and boys when it comes to rape kit procedure) and a law that makes DNA evidence freely available for testing.

Unfortunately, "rape" has become so terribly politicized that few who were outraged about the Palin rape kit controversy will be outraged about the possible injustice to Mr. Osborne, which the highest court in the land yesterday refused to correct.