Unfair

by Adam Benforado

Introduction

  The water in the vat: The full account of the trial of Clement and Evrard appears in the memoirs of eleventh- and twelfth-century critic, theologian, and observer Guibert of Nogent. In reconstructing the events, I rely primarily on the translation of Guibert’s autobiography by John F. Benton (based on an earlier translation by C. C. Swinton Bland). John F. Benton, ed., Self and Society in Medieval France: The Memoirs of Abbot Guibert of Nogent (1064?–c. 1125) (New York: Harper & Row, 1970), 214. I am also indebted to several other works. Jay Rubenstein, Guibert of Nogent: Portrait of a Medieval Mind (New York: Routledge, 2002); Joseph McAlhany, Monodies and On the Relics of Saints: The Autobiography and a Manifesto of a French Monk from the Time of the Crusades, trans. Jay Rubenstein (New York: Penguin Books, 2011); Margaret H. Kerr, Richard D. Forsyth, and Michael J. Plyley, “Cold Water and Hot Iron: Trial by Ordeal in England,” Journal of Interdisciplinary History 22, no. 4 (1992): 582–83.

  But they were still in the church: Benton, Self and Society in Medieval France, 213–14.

  Clement and Evrard, who were peasants: Benton, Self and Society in Medieval France, 212.

  The charge was heresy: Benton, Self and Society in Medieval France, 212.

  That is why: Benton, Self and Society in Medieval France, 212.

  But the brothers: Benton, Self and Society in Medieval France, 212.

  No, they were emissaries: Benton, Self and Society in Medieval France, 212.

  Into idle ears: Benton, Self and Society in Medieval France, 212.

  And in the shadows: Benton, Self and Society in Medieval France, 212.

  As Abbot Guibert recorded: Benton, Self and Society in Medieval France, 212–13.

  Indeed, rumor had it: Benton, Self and Society in Medieval France, 212–13.

  Such were the men: Benton, Self and Society in Medieval France, 213.

  The brothers had been betrayed: Benton, Self and Society in Medieval France, 213–14.

  But these accusers: Benton, Self and Society in Medieval France, 214.

  And when questioned by the lord bishop: Benton, Self and Society in Medieval France, 213.

  Following the celebration of Mass: Benton, Self and Society in Medieval France, 214.

  As they appeared before the water: Benton, Self and Society in Medieval France, 214.

  Tears rolled down: Benton, Self and Society in Medieval France, 214.

  And Clement and Evrard: Benton, Self and Society in Medieval France, 214.

  It was at this moment: Benton, Self and Society in Medieval France, 214.

  This was the trial: Benton, Self and Society in Medieval France, 213.

  As the ninth-century theologian: Arthur C. Howland, ed., Ordeals, Compurgation, Excommunication and Interdict (Philadelphia: University of Pennsylvania, 1901), 11. Hincmar was Archbishop of Rheims and a leader in both ecclesiastical and secular affairs. James C. Prichard, The Life and Times of Hincmar, Archbishop of Rheims (London: A. A. Masson, 1849), 8–9.

  Baptismal water was pure: Howland, Ordeals, Compurgation, Excommunication, 11.

  An accused person like Clement: Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 582–83; Henry Charles Lea, The Ordeal (Philadelphia: University of Pennsylvania Press, 1973), 72.

  According to Hincmar: Howland, Ordeals, Compurgation, Excommunication, 11.

  In some versions of the trial: Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 582–83; Rebecca V. Colman, “Reason and Unreason in Early Medieval Law,” Journal of Interdisciplinary History 4, no. 4 (1974): 589; Lea, The Ordeal, 72.

  He “floated like a stick”: Benton, Self and Society in Medieval France, 214. As Abbot Guibert recorded later, “At this sight, the whole church was filled with unbounded joy. [The brothers’] notoriety had brought together such an assembly of both sexes that no one present could remember seeing one like it before.” Benton, Self and Society in Medieval France, 214.

  Evrard, watching his brother’s fate, decided to confess his error, rather than undergo the submersion. Benton, Self and Society in Medieval France, 214. The blessed water that had rejected Clement must just as surely reject him, too. Peter Brown, “Society and the Supernatural: A Medieval Change,” Daedalus 104, no. 2 (1975): 139.

  With the trial complete, the brothers were brought directly to the prison, where they were joined by two other “established heretics from the village of Dormans” who had been foolish enough to come to watch the proceedings and were seized in short order. Benton, Self and Society in Medieval France, 214.

  The matter, however, was not yet settled. Benton, Self and Society in Medieval France, 214. The ordeal provided the judgment of God, but not the sentence. Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford: Clarendon Press, 1986), 23. To determine the proper strategy for dealing with the heretics, Abbot Guibert and the lord bishop sought out the wisdom of the Council of Beauvais. Benton, Self and Society in Medieval France, 214.

  However, with the guilt of the men determined, the townspeople had no interest in further deliberations and rushed upon the prison, seizing all four men. A great fire had been built outside the city and Clement and Evrard were “burned…to ashes.” Benton, Self and Society in Medieval France, 214. In the closing line on the incident, Abbot Guibert offered his support for the actions of the mob toward the brothers: “To prevent the spreading of the cancer, God’s people showed a righteous zeal against them.” Benton, Self and Society in Medieval France, 214.

  Here were the most esteemed: Peter T. Leeson, “Ordeals,” Journal of Law and Economics 55 (2012): 708.

  And here was a neutral process: Colman, “Reason and Unreason in Early Medieval Law,” 585–86.

  Witnesses could lie and judges could bow: Colman, “Reason and Unreason in Early Medieval Law,” 586.

  In an era in which the divine: Ian C. Pilarczyk, “Between a Rock and a Hot Place: The Role of Subjectivity and Rationality in the Medieval Ordeal by Hot Iron,” Anglo-American Law Review 25 (1996): 111; Peter Leeson, “Justice, Medieval Style: The Case that ‘Trial by Ordeal’ Actually Worked,” Boston Globe, January 31, 2010, http://www.boston.com/​bostonglobe/ideas/articles/2010/01​/31/justice_medieval_style/; Colman, “Reason and Unreason in Early Medieval Law,” 582 n. 34; Pilarczyk, “Between a Rock and a Hot Place,” 111. For those undergoing a hot ordeal, the hand that had been exposed to the heat was then bound and inspected after three days for signs of guilt: severe damage, festering, and the like. Colman, “Reason and Unreason in Early Medieval Law,” 582 n. 34.

  To achieve the proper result: Pilarczyk, “Between a Rock and a Hot Place,” 94; Robert C. Palmer, “Trial by Ordeal,” Michigan Law Review 87 (1989): 1548.

  With no dominant governmental authority: Pilarczyk, “Between a Rock and a Hot Place,” 107-08.

  But godly action: The pervasiveness of these beliefs may explain the numerous examples of individuals voluntarily undergoing trial by ordeal, in lieu of other means of proof. Colman, “Reason and Unreason in Early Medieval Law,” 585.

  Moreover, with an ordeal like Clement’s: Brown, “Society and the Supernatural,” 138.

  How else might a community assess: Brown, “Society and the Supernatural,” 137; Bartlett, Trial by Fire and Water, 22–23, 52; Leeson, “Ordeals,” 695; Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 574–75; Pilarczyk, “Between a Rock and a Hot Place,” 93–94, 107; Colman, “Reason and Unreason in Early Medieval Law,” 584; Palmer, “Trial by Ordeal,” 1550.

  The legitimacy of the ordeal was bolstered by the fact that it appeared to work so well. Some people floated and some did not—and those who floated were rarely in a position to offer counter evidence after the fact to prove that they were actually innocent. Leeson, “Ordeals,” 705. Neither of the two types of cases that leant themselves to the ordeal posed much of a risk of subsequent developments contradicting or otherwise undermining the judgment. The first category involved crimes such as adultery, surreptitious murder, witchcraft, arson, housebreaking, and he
resy, where there might not be explicit evidence or even a direct witness. Pilarczyk, “Between a Rock and a Hot Place,” 93; Colman, “Reason and Unreason in Early Medieval Law,” 583; Bartlett, Trial by Fire and Water, 30. Towns like Soissons faced invisible yet dangerous threats, and the normal judicial tools were simply not up to the task. Bartlett, Trial by Fire and Water, 22–23. By the twelfth century, particularly in areas of northern France and the Rhineland, heresy cases like Clement and Evrard’s were regularly adjudicated through trial by ordeal. Bartlett, Trial by Fire and Water, 22–23, 52. The second set of cases were those in which the accused was disqualified from the normal procedures of swearing an oath or could not assemble others to attest to his innocence. Colman, “Reason and Unreason in Early Medieval Law,” 584. In other words, the people most likely to undergo the ordeal were those least likely to have the relevant connections or power to contest the validity of the proceedings or the final judgment: slaves or other unfree persons, outsiders (foreigners), and those who were of general ill-repute who could not get others to swear on their behalf. Colman, “Reason and Unreason in Early Medieval Law,” 584; Palmer, “Trial by Ordeal,” 1550; Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 574–75.

  There was no apparent alternative: Although European legal systems subjected men and women to physical tests of guilt for more than a thousand years, the heyday of the ordeal was between the ninth and thirteenth centuries. Leeson, “Justice, Medieval Style”; Bartlett, Trial by Fire and Water, 13.

  Innocent men and women: Pilarczyk, “Between a Rock and a Hot Place,” 106.

  Women and heavyset men: Leeson, “Ordeals,” 707. Although a few modern scholars have attempted to show that under certain circumstances, ordeals could have led to accurate outcomes, there is little evidence that they were able to accurately distinguish guilt and innocence—and much reason to surmise that they did not. Pilarczyk, “Between a Rock and a Hot Place,” 110.

  Even if the process had been valid: Pilarczyk, “Between a Rock and a Hot Place,” 110.

  What interest does society have: Benton, Self and Society in Medieval France, 212.

  In a scene from Monty Python: Radlegry Balko, “Trial by Ordeal: The Surprising Accuracy of the Dark Ages’ Trial by Fire Rituals,” Reason.com, February 1, 2010, http://reason.com/​archives/2010/02​/01/trial-by-ordeal; “Witch Village,” Monty Python and the Holy Grail, Special Edition, Disc 1, directed by Terry Gilliam and Terry Jones (1975; Culver City, CA: Columbia TriStar Home Entertainment, 2001), DVD.

  The joyous crowd rushes off: Balko, “Trial by Ordeal”; “Witch Village,” Monty Python and the Holy Grail.

  They will examine our processes: Balko, “Trial by Ordeal”; “Witch Village,” Monty Python and the Holy Grail.

  In one study, researchers asked: Although I have focused on two sets of participants, there were seven groups in total who were each given an assessment of the mental patient with slightly different wording. Paul Slovic, John Monahan, and Donald G. MacGregor, “Violence Risk Assessment and Risk Communication: The Effects of Using Actual Cases, Providing Instruction, and Employing Probability Versus Frequency Formats,” Law and Human Behavior 24 (2000): 285–87.

  Both groups were provided with: Slovic, Monahan, and MacGregor, “Violence Risk Assessment,” 287.

  The only difference was: Slovic, Monahan, and MacGregor, “Violence Risk Assessment,” 287.

  Those who considered the risk: Forty-one percent of those who considered the risk of violence as a frequency determined that Mr. Jones should not be released versus 21 percent of those who considered the risk of violence as a probability. Slovic, Monahan, and MacGregor, “Violence Risk Assessment,” 288.

  When the researchers probed more deeply: Paul Slovic and Ellen Peters, “Risk Perception and Affect,” Current Directions in Psychological Science 15 (2006): 324. Put differently, when considering the risk as a probability, people imagined a single individual who might or might not act violently in the future. By contrast, when considering the risk as a frequency, people imagined a set of offenders who would certainly commit horrible acts, which was more evocative and frightening. Yuval Rottenstreich and Christopher K. Hsee, “Money, Kisses, and Electric Shocks: On the Affective Psychology of Risk,” Psychological Science 12 (2001): 188–89.

  If we have strongly negative feelings: Slovic and Peters, “Risk Perception and Affect,” 324; Rottenstreich and Hsee, “Money, Kisses, and Electric Shocks,” 185; George F. Loewenstein, Elke U. Weber, Christopher K. Hsee, and Ned Welch, “Risk as Feelings,” Psychological Bulletin 2 (2001): 276–78.

  A one-in-five-million chance: Cass Sunstein has termed this dynamic “probability neglect”: we can be so focused on certain negative consequences that we largely ignore the likelihood that those events will transpire. Cass R. Sunstein, “Terrorism and Probability Neglect,” The Journal of Risk and Uncertainty 26 (2003): 122.

  Indeed, sometimes when more: Paul Slovic and Daniel Västfjäll, “The More Who Die, The Less We Care: Psychic Numbing and Genocide,” in Behavioural Public Policy, ed. Adam J. Oliver (Cambridge, UK: Cambridge University Press, 2013), 94–114.

  Mother Teresa was right: Paul Slovic, “ ‘If I Look At the Mass I Will Never Act’: Psychic Numbing and Genocide,” Judgment and Decision Making 2 (2007): 80.

  Research suggests that: Slovic, “ ‘If I Look At the Mass I Will Never Act,’ ” 88.

  It’s no coincidence that: The 1994 federal law that requires convicted sex offenders to register with authorities was named after eleven-year-old Jacob Wetterling, who was abducted while riding bikes with his brother and a friend. Roger N. Lancaster, “Sex Offenders: The Last Pariahs,” New York Times, August 20, 2011, http://www.nytimes.com/​2011/08/21/​opinion/sunday/sex-offenders-the-last​-pariahs.html?src=rechp; “Megan’s Law Website,” Pennsylvania State Police, accessed November 2, 2014, http://www.pameganslaw.state.​pa.us/​History.aspx?dt=. A later amendment prompted state regulations that mandate that law enforcement notify members of the public about the presence of offenders in their neighborhoods. Lancaster, “Sex Offenders: The Last Pariahs.” These statutes are known as Megan’s Law—after Megan Kanka, who was raped and murdered by a known sex offender who lived across the street and invited her over to look at a puppy. William Glaberson, “Man at Heart of Megan’s Law Convicted of Her Grisly Murder,” New York Times, May 31, 1997, http://www.nytimes.com/​1997/05/31/nyregion​/man-at-heart-of-megan-s-law-convicted-of-​her-grisly-murder.html?src=pm. In addition to increasing and expanding punishment for sex crimes against children, the 2006 Adam Walsh Act permits something that is almost always prohibited in criminal law: the retroactive application of the tougher regulations. Lancaster, “Sex Offenders: The Last Pariahs.” It was signed on the anniversary of the date that Adam, the son of the host of America’s Most Wanted, John Walsh, was kidnapped from a department store and murdered. Yolanne Almanzar, “27 Years Later, Case Is Closed in Slaying of Abducted Child,” New York Times, December 16, 2008, http://www.nytimes.com/​2008/12/17/us/​17adam.html.

  We assume that assessing risk: Slovic and Peters, “Risk Perception and Affect,” 322; Loewenstein, Weber, Hsee, and Welch, “Risk as Feelings,” 267.

  And the problem is that: Cass R. Sunstein, “Book Review: Misfearing: A Reply,” Harvard Law Review 119 (2006): 1110.

  Yet the risk that your child: Lancaster, “Sex Offenders: The Last Pariahs”; Centers for Disease Control and Prevention, 10 Leading Causes of Death by Age Group Highlighting Unintentional Injury Deaths, United States—2011, accessed November 2, 2014, http://www.cdc.gov/​injury/wisqars​/pdf/​leading_causes_of_injury_deaths_highlighting_unintentional_injury_2011-a.pdf; U.S. Department of Transportation, Traffic Safety Facts—2012 Data—Children (Washington: National Highway Traffic Safety Administration, 2014), 1. In fact, contrary to popular perceptions, the incidence of various child abduction crimes have decreased—not increased—since the 1980s. Lancaster, “Sex Offenders: The Last Pariahs.” And the statistics show that
only a very small percentage of sexual crimes involve repeat offenders—indeed, Justice Department data indicates that reoffending rates for sex offenders are notably lower than for those convicted of robbery, burglary, and drug crimes. Lancaster, “Sex Offenders: The Last Pariahs”; Rachel Aviv, “The Science of Sex Abuse,” The New Yorker, January 14, 2013, http://www.newyorker.com/​reporting/2013/01/14​/130114fa_fact_aviv​?currentPage=all. Moreover, when it comes to sexual abuse, it is relatives, friends, and acquaintances who make up the vast majority of abusers, not strangers hiding in the bushes. Lancaster, “Sex Offenders: The Last Pariahs; Youth Villages, “In Child Sex Abuse, Strangers Aren’t the Greatest Danger, Experts Say,” Science Daily, April 13, 2014, http://www.sciencedaily.com​/releases/2012/04/​120413100854.htm?utm_​source=feedburner&utm_medium=email&utm_campaign​=Feed%3A+sciencedaily%2Fmind_brain+%28ScienceDaily%​3A+Mind+%26+​Brain+News%29.

  The pedophile threat: Paul Slovic, “Perception of Risk,” Science 236 (1987): 282–83; Paul Slovic, The Perception of Risk (London: Earthscan, 2000), 140; Timur Kuran and Cass R. Sunstein, “Availability Cascades and Risk Regulation,” Stanford Law Review 51 (1999): 708–10; Jared Diamond, “That Daily Shower Can Be a Killer,” New York Times, January 28, 2013, http://www.nytimes.com/​2013/01/29​/science/jared-diamonds-guide-to-reducing-lifes-risks.html?_r=0. Researchers have identified a number of other factors that prompt greater fear and an enhanced perception of risk, including whether the risk is perceived as involuntary, irreversible, human-generated, and impacting children, among others. Kuran and Sunstein, “Availability Cascades and Risk Regulation,” 701, 708–10. One of the intriguing things about our threat perceptions is how difficult they are to control: we may “know” that a risk is very unlikely to happen, but still see it as a major threat. Daniel Kahneman, Thinking, Fast and Slow (New York: Farrar, Straus and Giroux, 2011), 323. For many of us, a great example of this phenomenon comes when we fly in an airplane: we know that our chances of death are significantly less than if we completed the same journey by car; yet our automatic emotional response leaves us on edge for the flight. Likewise, we may be aware that we are far more likely to die of heart disease than Ebola, but be much more motivated to respond to the risk of Ebola.