What’s Wrong with the Protective Order Policy “Better Safe than Sorry”?

Posted on February 11, 2018


“I was wondering if you have a rebuttal to the argument that restraining orders should be granted based on little evidence, because it’s ‘[b]etter [to be] safe than sorry.’”

—Recent query

The question implicit in the epigraph is this: What’s wrong with the policy “better safe than sorry”?

The questioner refers to the judicial practice, long inculcated, of taking complaints of fear on faith and issuing protective orders “just in case.” Appreciate that these protective orders may be based on no substantial evidence and are effectively “mini-criminal statutes.” Their violation, real or alleged, leads to criminal prosecution. They are custom-tailored laws applied to individual citizens about whom the court knows nothing but is willing to presume the worst—and whether they’re violated or not, they may be accompanied by a host of privations like loss of access to home, family, property, and money (and even the ability to earn it).

There are a plenitude of reasons why the policy “better safe than sorry” is crass and hypocritical. Liberal feminism, based on whose politicking the policy originates, eagerly supports discrimination and stereotyping in one context. We see it applied almost daily in response to the #MeToo movement: Men are accused; men are fired. The same policy, in other contexts, is vehemently opposed by the left, however. Profiling to screen potential terrorists or catch illegal immigrants, denial of entry into this country by citizens of others associated with anti-American sentiment, and forced deportations of aliens who came here as children are nominated cruel and unjust.

People of the same political stripe oppose bullying. They denounce finger-pointing, name-calling, and humiliation (like “slut-shaming” and “fat-shaming”), which may inflict emotional harm and lead victims to commit rash acts, including violence or self-violence. But they decree finger-pointing, name-calling, and public revilement urgent and commendable when it’s done by a complainant of violation: “Believe her.”

So an evident double-standard demonstrated by its advocates—whose self-contradictory battle cry is “Equality”—is a compelling logical argument against the better-safe-than-sorry position. A compelling legal argument against it is that in a democracy, privileging the interests of one party or collective over the interests of another or others is unconstitutional.

The most forceful argument against it, though, is that it’s unethical:

It is better that ten guilty persons escape than that one innocent suffer.

This 350-year-old formulation, which most of us have heard at one time in our lives, is attributed to English jurist William Blackstone but could as easily be credited to ancient sources (see, for instance, Genesis 18:23-32). Its point, as interpreted by Wikipedia, is that “government and the courts must err on the side of innocence,” that is, they must grant the benefit of the doubt to the accused, not to their accusers. “Better safe than sorry” is an inversion and perversion of this principle, and the argument is best dispatched on the grounds that it’s savage.

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*To suffer, for those who need reminding (and they are legion), is to endure pain or distress, incur loss or damage, or sustain disability or handicap. All obviously apply in this context. The position that being falsely accused never causes suffering is monstrous.