Due process -- that elusive concept that, at its core, says a person should not be deprived of his liberty or property interests without notice and a fair opportunity to be heard -- is a bogeyman, a hindrance to justice, we are told, when it comes to offenses against women. The hostility to due process is most pronounced on campus. Need some recent examples?
●Earlier this year, Dartmouth administrator Amanda Childress was speaking about alleged sex offenses when she said this: "Why could we not expel a student based on an allegation?" Dartmouth defended the comment.
●Occidental College professor Caroline Heldman was quoted in a Ms. Magazine blog entry about the spate of lawsuits filed by men who claim their colleges denied them their due process rights in connection with sexual assault claims: "These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape."
●Sen. Claire McCaskill's sexual assault survey sent to 350 college and university presidents classifies persons who make accusations of sexual misconduct as “victims,” and in one place calls persons merely accused of sexual misconduct “offenders.” Then on page 14, it contains this query: "Below is a list of policies and procedures that may discourage victims from disclosing and reporting assaults at some schools . . . . 1. Disclosure of offender’s rights in the adjudication process . . . ."
This isn't just indifference to due process, it's downright hostility, and the mainstream news media is largely tolerant of it. In what other setting would the news media give a pass to comments that assume guilt based not on the facts of a given case but on the nature of the accusation and the gender of the accused? It's as if we can't be intolerant of heinous wrongdoing against women while also respecting the principles of fairness that underlie due process. That's insane by any measure.
Now the news media is injecting the same puerile rush-to-judgment sensibilities into accusations of domestic violence in the NFL. The principles of fairness and orderly procedure that underlie "due process" are readily dismissed as legal technicalities that shouldn't interfere with taking a zero tolerance stance toward domestic violence, we are told.
The 49ers defensive lineman Ray McDonald allegedly beat his pregnant fiancee. He was arrested and is out on bail. McDonald continues to practice and play for San Francisco while being investigated on suspicion of domestic violence. A hearing is scheduled for Sept. 29. Coach Jim Harbaugh properly said the 49ers would let the legal process play out before making a determination about McDonald's future. Harbaugh said: "Our response would be, we have two principles at play here, and one is respect for due process, and we're not going to flinch based on public speculation."
Harbaugh is right. In days gone by, progressives would have applauded his stance as courageous in the face of a public outcry by the mob that assumes guilt based on nothing more than an accusation. Alas, those days are over, at least when it comes to accusations by women against men.
The once great New York Times, among many others, does not approve of Harbaugh's stance. It harrumphed that Harbaugh "might have been reading from the N.F.L.’s handbook on crisis management in the concussion age, circa 2008." The implication is as jarring as it is childish: due process is some unenlightened concept that's invoked by patriarchal Neanderthals looking to protect rapists, misogynists, and wife beaters. With all the snark that's fit to print, the Times continued: "[Harbaugh's] stance drew sharp rebukes from the likes of Jerry Rice and the California lieutenant governor, Gavin Newsom, San Francisco’s former mayor. The San Francisco Board of Supervisors passed a resolution denouncing the team’s handling of the situation. But most of them probably watched the game anyway."
I ask in all seriousness, in what other setting would the New York Times denigrate due process?
Another writer wrote: "The 49ers, so far, have held their ground in regards to McDonald. Do they know something that we don't? Coach Jim Harbaugh has reiterated that it's 'due process' but as MediaNews Group columnist Tim Kawakami has pointed out, 'Due process is a legal term, It is not relevant to whether someone plays in a football game.'"
Yeah, I mean, who needs silly things like "fairness" to insure that the innocent aren't punished with the guilty? "Due process" is a legal "technicality" that has no place in the real world when a man is accused of a crime against a woman, even when the stakes are so high that man's life could be ruined by a trumped up accusation.
Except Harbaugh is right. The New York Times and all the rest are wrong. It's easy to kowtow to the public outcry and punish based on accusations -- most societies since the dawn of man have done exactly that. What separates our culture from most of the cultures in history is the impulse to be fair, to be just. It's much harder to insist that the accused be afforded a fair hearing of the charges against him, but it's the hallmark of a civilized people.
Fairness does not require that due process necessarily be administered by courts. It is possible, for example, for the NFL to defer to a retired judge to give a fair hearing to an accused player. Unfortunately, colleges have shown that when due process is administered by persons outside formal courts, it doesn't go well. I merely say it is possible.
However due process is administered, this isn't something that should be at all controversial. The people criticizing Harbaugh and the 49ers can't justify their rage with anything resembling a coherent rationale. And, no, fuming about how domestic violence is a problem of epidemic proportions does not justify assuming guilt in a given case. You are an idiot if you think it does. (Or worse, you are pandering to angry women's groups for political or economic reasons -- you'd be better off being an idiot -- at least idiots presumably act with good intentions.)
The same unjust sensibilities informed the lynch mob in the Old South. The motivating impulse of the lynch mob was that rape was an offense so heinous, it demanded “instant and severe punishment” — vigilante justice — without waiting for due process. As one writer put it, lynchings “are extraordinary measures demanded by extraordinary occasions.” Underlying the defense of lynchings was the assumption that rape accusers were “victims” just because they said so. The hangman and his sympathizers had no doubts about the guilt of the men and boys hanged–“their guilt was clear in every instance,” clucked one writer. Another explained: “. . . the utmost care is taken to identify the criminal and only when his identity is beyond question is the execution ordered.” And: “As the most careful precautions are taken against this result it is not a likely thing lest the wrong man is executed.” And due process wasn’t just unnecessary to the fair administration of justice when rape was alleged, due process was a hindrance to the fair administration of justice. The criminal justice system was “incapable” of meting out the punishment that was needed, a punishment that spared the victims of “negro” atrocities the humiliation of testifying in courts.
We have reached the stage where we are told colleges and the NFL should be motivated by the same rush-to-judgment impulse as the one that motivated the lynch mob.
If we really want the NFL to be a role model, we'd insist that it do the right thing, the hard thing -- the apolitical thing -- and institute a policy that respects due process in all cases.