When ‘Due Process’ Is Weaponized To Protect Powerful Men

Shortly after any highly effective man is accused of sexual assault, the requires “due process!” and “a fair trial!” rapidly comply with — often shouted by defenders and followers on sidewalks, chat boards and, after all, Twitter. It’s like clockwork. 

The solely solution to really show that an alleged predator is responsible of accusations is to prosecute him in prison court docket, or so the argument goes. Anything else is just conjecture. And whereas some folks say this with good intentions, others use the prison authorized system and the aforementioned proper to due course of as a solution to absolve their favourite actor or singer — and even their greatest buddy or brother — of any wrongdoing.

This debate, and deeply rooted misunderstandings about due course of and the way sexual violence harms its victims, is what led Alexandra Brodksy to jot down her new e-book, “Sexual Justice: Supporting Victims, Ensuring Due Process, And Resisting The Conservative Backlash.”

Brodsky, a civil rights lawyer and co-founder of anti-sexual violence group Know Your IX, argues that the prison authorized system is just not our solely choice on the subject of crimes of sexual violence (already, it’s not a alternative for a lot of marginalized victims.) There are different extra responsive and, usually, extra sensible methods to penalize a predator or get justice for a survivor. 

“Public debate about due process in the context of sexual harm is built on this assumption that the only fair process is a criminal trial. Anything that deviates from that is going to seem like a kangaroo court,” Brodsky advised HuffPost by cellphone earlier this month. “But I think it’s important to recognize that courts are not the only institutions that can investigate and adjudicate sexual harm. Sexual harm isn’t just a criminal matter, and recognizing that fact will really help to clarify the public debate.”

One key clarification Brodsky makes in her e-book is the distinction between due course of within the prison system and a good course of in society. 

“We have to remember both the importance of due process as a legal matter and the importance of fair process as an ethical matter,” she stated. “And we need to remember the ways in which that rhetoric can be co-opted by people who are really just invested in impunity. Where, to them, any kind of consequence for sexual assault is unfair.” 

I feel it’s essential to acknowledge that courts are usually not the one establishments that may examine and adjudicate sexual hurt. Sexual hurt is not only a prison matter.
Alexandra Brodsky

HuffPost spoke with Brodsky about her new e-book, why she’s arguing for extra institutional intervention in instances of sexual hurt, and why a good course of is sweet for each the accuser and the accused. 

How is due course of usually distorted when used culturally, or exterior of a courtroom, to deal with sexual violence? And why is it so essential to make this distinction of what “due process” actually is, particularly within the wake of the Me Too motion? 

When now we have public debates about sexual hurt that use authorized terminology like “due process,” we’re not simply preventing in regards to the legislation. I typically have this response in my head like, nicely, it doesn’t make sense to speak about due course of on this context as a result of we’re speaking about, say, a non-public employer.

This got here up loads across the fall of 2017 with the Weinstein allegations and the surge of Me Too. In so many of those cases, due course of didn’t apply in any respect as a result of the federal government wasn’t the one doing the firing. 

As a authorized matter, due course of is the usual by which the rights are assured to somebody earlier than the federal government takes away one thing like their freedom or their property, or for a public worker, their job. It’s the protections towards authorities deprivation. 

But what I needed to remind myself as an advocate is that we’re actually speaking about ethics. We’re utilizing this authorized terminology to precise moral commitments to equity to at least one one other, and I feel that’s actually invaluable. As with any sort of allegation, somebody accused of sexual hurt ought to have the chance to inform their aspect of the story, to grasp the allegation and have the prospect to defend themselves. 

We’ve positively seen highly effective males name for due course of — both in earnest or as a solution to solid doubt on any allegation that hasn’t been substantiated in a prison court docket.

In your e-book, you write {that a} examine from the National Center for Victims of Crime discovered {that a} vital variety of males, however not ladies, believed that the one truthful solution to deal with a sexual allegation is a full prison prosecution. Why do you assume that’s?

People of all genders damage folks of all genders. But it’s additionally true that ladies usually tend to be sexually harassed than males, and I’m guessing extra prone to hear instantly from associates and family members who’ve been sexually harassed. It can be intuitive to me that extra ladies would have a richer understanding of the harms of sexual violence and the long-term results.

Women are additionally extra prone to have been in that scenario in school or at work the place they wanted some sort of rapid treatment. Lots of people who don’t know the methods wherein sexual hurt is part of their neighborhood, they actually have a “Law & Order SVU” imaginative and prescient of what sexual assault appears like and the way it’s dealt with.

You talk about in a single chapter how prosecutors’ risk-aversion approach to sexual assault instances usually turns into a “self-fulfilling prophecy” — often reiterating rape myths by solely pursuing these instances they consider they’ll win in court docket. Because of this, you write, the “criminal legal system does not deserve the public’s collective faith.” 

What do you say to individuals who consider that the prison authorized system is damaged on the subject of making an attempt to adjudicate these crimes?

I’ve struggled loads personally with this query, and my views have modified in each doable means over time. The solely factor of which I’m really certain is, even when the prison authorized system’s approach to sexual assault was vastly improved, it will nonetheless not have the ability to present survivors all that they want. 

Even if lots of the issues we see in prosecution at this time had been mounted, the prison authorized system is rarely going to have the ability to get a survivor switched out of a shift that she shares with a harasser at work. It’s by no means going to have the ability to get a survivor an extension on a paper every week after he’s assaulted. We’re all the time going to wish to name on different establishments and communities to offer these sorts of treatments.

How do you consider the addition of institutional accountability and processes within the face of sexual hurt can restore or make up for the dearth of prison authorized assist for survivors?  

Institutions are capable of present totally different treatments extra rapidly which are conscious of survivors’ pressing wants. I don’t need to romanticize the function of establishments as a result of a lot of them fail, however I feel, at their greatest, they’re able to present survivors with shift modifications and dorm modifications and psychological well being providers and tutorial lodging and paid day off with the type of agility that the authorized system simply isn’t well-suited for.

I spoke with quite a few survivors for the e-book who say that they only by no means would have felt comfy going to the police and that it was a lot simpler for them to think about going to somebody they already trusted — a supervisor or a dean — and asking for assist.

Even if the prison authorized system’s approach to sexual assault was vastly improved, it will nonetheless not have the ability to present survivors all that they want.

You write that this e-book is just not about restorative justice, however a number of what you talk about is steeped in neighborhood work to deal with sexual hurt inside totally different establishments. What are the variations between what you’re arguing for right here and what many restorative justice advocates need? 

My e-book says that this isn’t about restorative justice, as a result of these considerations about due course of aren’t actually relevant within the restorative justice context, as a result of restorative justice almost all the time begins with the one that has precipitated hurt admitting to doing so and making it clear they’re able to take accountability. In a world wherein there are two individuals who inform totally different tales about what occurred and an establishment wants to determine the true info — that’s not a restorative justice continuing. 

These issues are positively associated: A college might supply restorative justice and likewise pursue investigations the place the events don’t conform to restorative justice. It’s simply not one in the identical. 

I’ve an actual perception in restorative justice, but in addition, I feel some folks deal with it as a silver bullet that can resolve all issues associated to sexual violence, together with procedural issues. I simply don’t assume that’s true, as a result of there are numerous circumstances wherein the accused particular person is just not able to take accountability. There are many circumstances wherein a survivor doesn’t really feel comfy with that and doesn’t need restorative justice. I consider we must be each build up that infrastructure and likewise acknowledge that it’s not going to be the proper approach in each circumstance. 

What do you hope readers take away out of your e-book?

I hope that readers come away feeling assured that we will maintain two issues in our heads without delay. We ought to each really feel agency in our commitments to equity and likewise hold our eye out for individuals who purport to share our values however are actually dangerous actors. That will be tough, however I feel we will do it. We can do it as a result of now we have to.

This interview has been edited and condensed for readability. 


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