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Is Due Process An Outdated Concept?

December 3, 2018 Frontpage No Comments


It hasn’t been that long ago that we should have already forgotten the lessons learned from the Justice Kavanaugh confirmation. The judge, having a heretofore sterling reputation, was assailed from the left as some type of sexual predator. It was claimed that as a teenager he had groped a young student, although the accuser could not remember exactly when, or where, or if the groping might have been from another man.
But she was sure it happened. There followed a litany of other accusations that the judge had arranged for everything from the gang raping of coeds to spiking punch bowls. And all through the judge’s ordeal, there were those who claimed that “accusers” must always be believed.
One, Sen. Mazie Hirono (of “men should shut up” fame), declared that Judge Kavanaugh didn’t deserve the presumption of innocence because she disagreed with his judicial philosophy. That U.S. senator from Hawaii even suggested that the very principle of “innocent until proven guilty” should not apply in sexual assault cases.
Accusers, of course, must be believed. Thus, there is a presumption of guilt, not of innocence.
Unfortunately, this does not happen in just high-profile cases. Over the years my old radio program was inundated with press releases from campus reform groups pointing out that men accused of sexual harassment or assault would often be prejudged by college administrators as “guilty,” who would then hand down punishments that would range from suspension to expulsion. The typical case involved an “investigator” from the diversity office who would conduct an interview — oftentimes with only the accuser — and who would then render the preordained judgment of guilt.
There were no objective standards. In fact, there was no uniform definition of what sexual assault or harassment was. To one person it might be that after a party and too many drinks she might have become a bit hazy and something must have happened because her blouse was unbuttoned. To another it was an “evil” suggestion to which she may or may not have given consent. And yet to another, she could have been offended by “that look” that men on the make give to women they desire.
Of course, accusers must always be believed.
I think most people remember the Duke Lacrosse case. In case you missed it (it was in all the newspapers), it was about a party the Duke University Lacrosse team threw. The young men running the party hired two “dancers” to perform at a bachelor-type party. After the party, one of the dancers claimed to have been raped by several of the lacrosse players.
Since the players were white and the dancers were of mixed race, the left immediately jumped on the dancer’s bandwagon to denounce the players. School officials and professors demanded that the dancer be avenged. Jesse Jackson, of the Rainbow Coloration, offered to pay for the dancer’s college even if her story was untrue. Within a year the dancer’s story had fallen apart, the other dancer contradicted her account, there were problems with the “evidence” adduced, and finally the state attorney general threw out the case finding that the “rape” was a hoax.
The district attorney, who pursued the case for largely political reasons, lost his job, was disbarred, and ultimately convicted of contempt of court.
But, of course, the accuser had to be believed. The campus community, including the professors who had chastised the players, did not retract their comments. In fact, one of the professors called the players “hooligans and rapists” and told one of the mothers she “was the mother of a farm animal.” The students were forced to leave Duke, and the lacrosse coach was fired.
Because of cases like this, U.S. Education Secretary Betsy DeVos has proposed a set of rules for colleges receiving federal funds. Under procedures now in place, a single school administrator could investigate a claim, bring charges against a student (or staff member), and decide guilt. The accused might even be denied the ability to review the evidence against him. Secretary DeVos’ proposed rules are fairly simple and common sense and address the problem of inconsistent procedures from school to school and case to case.
First, it would define sexual harassment under Title IX, not as some amorphous concept as it is now, but as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity,” or an assault that is already a defined criminal act. It also requires schools to respond “meaningfully” to every report of sexual harassment.
Second, it would require schools to apply basic due process protections for students and staff. No longer could a student automatically be assumed guilty or the accuser automatically be deemed truthful. The presumption of innocence would be accorded the accused, who would be given a written notice of the allegations and an opportunity to review all evidence collected.
You would be surprised how many cases were reported to me in which the accused was never given a written statement of charges or opportunity to review the evidence. Of course, the elites among us don’t need to do such things since they are, by definition, wiser and fairer than the rest of us mere mortals.
Third, it would give the accused the right to a hearing where his advocate or attorney – but not the accused himself – would be able to ask questions of the accuser, subject to any rape shield protections. The hearing would be conducted by a neutral party and not by the school’s investigator.
Finally, it would impose a uniform standard of proof. Currently, most schools use what is known as a “preponderance of the evidence” standard. It is the standard used in most civil cases and it simply means “more probable than not.” The standard DeVos is recommending is “clear and convincing,” which is a medium level of proof, higher than the preponderance standard, but less rigorous than the criminal standard, “beyond reasonable doubt.”
Remember, a finding of guilt in these proceedings has serious ramifications to the accused, including expulsion, or in the case of a staff member or professor, the loss of a job and possibly a career. These are not trivial matters or civil misdemeanors. They clearly have the ability to affect the accused for life and the new evidentiary standard reflects the seriousness of the matter and the serious ramifications for the accused.
Of course these proposed rules don’t fit with the left’s view of the world. I wrote two weeks ago (“Political Correctness and the Culture of Death,” November 22) about the Cultural Marxists who tend to view the world through their own prism. Thus, favored groups are to be given more deference than disfavored ones. Women are a favored group and men, especially white men, are disfavored. Thus the presumption of innocence and due process are not called for in these instances.
No, sir, they are not because they only seek to promote male hegemony, especially white male hegemony.
So, naturally, the American Civil Liberties Union (ACLU), once a fighter for due process, now opposes the proposed rules because they give too much deference to the accused! It claims that the proposed rules would “roll back civil rights protections for students.” The ACLU claims that the proposed “clear and convincing” standard weights the findings against the accuser and the more relaxed standard of “preponderance” should be used.
The ACLU also claims that by limiting the definition of sexual harassment the proposed rule will “harm already vulnerable students.” Of course, that is how the law works: An activity is proscribed and violators are punished. Persons should not be subject to punishment for activities that are deemed punishable only after the fact. To do so will allow charges to be brought for ex post facto violations of undefined rules or fluctuating concepts against unsuspecting “disfavored” students who may or may not understand exactly what they are accused of doing.
The ACLU doesn’t say it in so many words, but it appears that it is willing to jettison the presumption of innocence rule. Of course all of these things the ACLU defends in the criminal context, but not in the matter of sexual misbehavior claims on college campuses or other venues. But, of course, the mantra of the left is that the accuser must always be believed.
And the ACLU is joined by many voices of the progressive left, who apparently see the “rule of law” through a different lens than we have historically viewed it. Included in the criticism are Democratic members of Congress, including Sen. Patty Murray who charges the rules are the latest attempt by the Trump administration to “attack and undermine women, their health care, their rights, and their well-being.” Cong. Bobby Scott called it a “damaging setback” for sexual assault victims; Cong. Maxine Waters said the rule would put an end to civil rights protections for students.
And Cong. Joe Kennedy, who apparently didn’t read the rule, incorrectly claimed the rules would let accused students themselves cross-examine their accusers.
The bottom line here is the question of how do we handle accusations of sexual harassment. Do we embrace the law in its current form, with all its due process protections, or do we opt for the new left’s approach which eliminates many of those protections? And if we move in the left’s direction, how long before the new standards are expanded to include other transgressions by other disfavored group members? Do you, as I do, see this as an encroachment on our constitutional civil liberties — a slippery slope, if you will? And to what end?
The proposed rule was announced November 16. It will be adopted, modified, or rejected after a 60-day comment period. Comments may be sent to: U.S. Department of Education, 400 Maryland Ave. S.W., Washington, DC, 20202, or through the department’s website,
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