Should We Let A serial Rapist Go Scot Free?

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By Stanley Alieke, Esq.

“It is better that ten guilty men should be set free than one guilty man to be convicted”.
Before we go down to the philosophical principle of this theory, let us first take it into consideration the fact that this theory had its root in the Bible.


In the book of Genesis 18 v 23-32 (KJV), this conversation ensued between Abraham and the Lord God:
And Abraham drew near, and said, Wilt thou also destroy the righteous with the wicked?
Peradventure there be fifty righteous within the city: wilt thou also destroy and not spare the place for the fifty righteous that are therein?

That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right?
And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.
And Abraham answered and said, Behold now, I have taken upon me to speak unto the Lord, which am but dust and ashes:

Peradventure there shall lack five of the fifty righteous: wilt thou de- stroy all the city for lack of five? And he said, If I find there forty and five, I will not destroy it.
And he spake unto him yet again, and said, Peradventure there shall be forty found there. And he said, I will not do it for forty’s sake.

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And he said unto him, Oh let not the Lord be angry, and I will speak: Peradventure there shall thirty be found there. And he said, I will not do it, if I find thirty there.

And he said, Behold now, I have taken upon me to speak unto the Lord: Peradventure there shall be twenty found there. And he said, I will not destroy it for twenty’s sake.

And he said, Oh let not the Lord be angry, and I will speak yet but this once: Peradventure ten shall be found there. And he said, I will not destroy it for ten’s sake.

In this above conversation, both Abraham and God is of the view that if there’s just one innocent person in the city, the Lord in his infinite mercy will not punish the entire city thereby also punishing the innocent, hence, it is better for ten or thousand of guilty men to go scot free than one innocent man be punished.

Williams Blackstone, a Law Lord, and a famous English jurist borrowed this principle from the Bible and expanded it into the English legal system.

Willam Blackstone in his book; “Commentaries on the laws of England, published in 1765-1769, postulated this principle that has come to be known as the Blackstone’s ratio, also known as Blackstone’s formulation:
“all presented evidence of felony should be admitted cautiously for the law holds that It is better that ten guilty persons escape than one innocent person suffer”

Benjamin Franklin, an American jurist also adopted this principle and while introducing it into the American legal system stretched the theory and postulated thus;
“It is better that a hundred guilty people should escape than that one innocent person should suffer”.
This theory of the Blackstone ratio is what in no doubt has formed the bases of the principle on which the criminal justice system of most countries of the world is built; The principle of presumption of innocence of the accused, the principle of he who avers must prove, the requirement of a unanimous jury verdict in criminal trials, the principle of beyond reasonable doubt in criminal trials, the principle that once there’s ambiguity the court should decide in Favour of the accused all have its root in this theory of letting a guilty go scot free instead of punishing an innocent man.

This theory passes as a strong message that the government and the courts must always err on the side of caution in passing verdicts so as not to convict an innocent person. If there’s doubt or ambiguity as to the guilty or innocence of the accused, the court should apply leniency instead of punishment, ie, once there is any form of ambiguity or doubt in the legal proceedings as the innocence or guilt of the suspect, the court should err in the side of caution by presuming the suspect to be innocent and avoid convicting and punishing rather than presumption of guilt because “it is better that a guilty person escapes than an innocent getting punished”.

The defect to this theory of letting the guilty go free instead of punishing the wrong person is that it poses the philosophical question of; “will it still be better to let a serial rapist or a mass murderer or a suicide bomber etc, off the hook because the court is being lenient and extremely careful not to punish the wrong person”?

Your answer is as good as mine but  authoritarians (who are the major critics of this theory), jurists, law lords, social psychologists, etc have all by every stretch of imagination agreed that despite the defect of this theory, it is actually better for the society to let a guilty person go free than for an innocent to be punished for a crime he did not commit.

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