The Compromise Version of Your Rights

A quick (and incomplete) list of things that secure due process for an accused:

  • Being informed of the charges against the accused
  • Being informed of the factual basis for the accusations in language that is clearly defined and comprehensible
  • Being given written statements of allegations of witnesses sufficiently in advance of a hearing to investigate and prepare
  • Being capable of obtaining evidence in defense of the accusations
  • Being informed of evidence that disproves the accusations
  • Being informed of evidence that undermines the credibility of the accuser
  • Being given access to all relevant and material evidence, without regard to how that evidence makes the accuser feel
  • Being allowed to have competent counsel
  • Being given competent counsel if one cannot afford to retain counsel
  • Being allowed to have counsel fully participate in all proceedings
  • Being allowed to confront one’s accuser
  • Being allowed to question one’s accuser
  • Being allowed to question witnesses in support of the accusations
  • Being allowed to call witnesses in one’s defense
  • Not being presumed guilty
  • Having adjudicators who are unbiased, competent to reach a logical determination and not trained in methods to rationalize the failings of the accuser and instructed to abide them

So, which of these (not to mention others) rights are you willing to give up?  The outcome of this adjudication could destroy a life. A student could be expelled from college, his transcript marked with a scarlet letter. His tuition payments, hundreds of thousand of dollars now reflected by a future debt payment, lost forever.  And a future as a physician, astro-physicist, statistician, replaced by the possibility of becoming a truck driver.

Some of these rights have associated hard costs, such as competent counsel when an accused can’t afford one.  Some have associated soft costs, such as the potential for re-traumatizing the accuser by forcing them to face the accused or answer questions that might embarrass them. Some could cause a victim not to come forward for fear of being doubted.

So which rights should be denied the accused?

Well, don’t waste too much time pondering the question, because you don’t actually get a vote.  There are others making the decision for you.

Those passionate hand-wringing advocates, not the ones militating in favor of the accuser but the ones who are supposedly standing up for the accused, are doing their best. I know this because they told me so.

And they’re just volunteers, I was told, which means they should be forgiven their shortcomings because we can’t expect volunteers to perform with the same level of competence as paid professionals.  It’s very hard. It takes time.  And, of course, their depth of passion is apparently a substitute for knowledge, experience and competence, three things woefully lacking.

But that’s only a sliver of the problem.  The bigger issue is compromise.

We have to be reasonable. We have to be willing to compromise or people won’t take us seriously and we’ll have no influence.

Compromise?  With other people’s rights?

There was no vote taken, amongst the millions of Americans whose lives may be impacted by what happens.  No one agreed on some private organization, where a handful of people decided to pick a grandiose name that suggests they speak on behalf of the accused.  They are the sufferers, who have felt the sting of unfair accusations so that they are willing to do something about it, when the rest have yet to experience the deprivation of due process, and so they are willing to dedicate the time and effort to create an advocacy organization.

On the one hand, they are doing something, whereas most who will eventually suffer remain blissfully uninvolved.  Of course, that’s because it has already touched their lives, and the disastrous effects have given them the impetus to act.  For all those inchoate sufferers, they don’t yet realize that this could be ruinous and so they spend their time elsewhere.

It’s not until your ass is in a jam, it’s your darling baby’s life swirling around the toilet bowl, that you realize how horribly wrong this will be.

On the other hand, there is an assumption that the passionate advocates with the pompously-named organization are doing a good job of it. They are strong, knowledgeable, competent.  They are the voice of due process.

Except they’re not.  A small group of people who, despite the titles they’ve given themselves, have shockingly little grasp of due process, are huddled in a basement den deciding which of your rights isn’t worth it.  With furrowed brow, they want desperately to be viewed as “reasonable,” which their third-string paid lobbyist explains is critical if they’re to be invited to the party.

You have to compromise. You have to let go of some of this.  You will never win, you will never get what you want, you must give something up.

What they decide to give up is yours, and they hold themselves out as speaking for you, and you neither know they’re doing this nor have a vote in which of your rights they’ve given away in their effort to be invited to the party.

All the while, the other side demands more, and more, giving up nothing.  As they become increasingly unreasonable, they move the center ever further in their direction so that what smells of reasonable is so deeply skewed to their most radical demands as to render due process no more meaningful than their favored words, rape and sexual assault.

One can only hope your day never comes when you have to face this fiasco as an accused, when suddenly you learn how many of these rights have been compromised such that you find yourself in an impossible position facing a tribunal that will destroy a life as surely as any criminal accusation but without most of the due process assurance that would provide a fighting chance.

But don’t blame the shrieking advocates for the other side. They may be self-serving and irrational, but they do so for what they believe to be good reason. No, blame the advocates for your own side, as they’re the ones who willingly gave away your rights with the best of intentions.

30 thoughts on “The Compromise Version of Your Rights

  1. William Doriss

    Do-Gooders Liberties Union: “As a non-profit, we have limited resources and cannot help you at this time. We suggest that you hire a private attorney.”

    Your favorite duly elected Liberal Representative: “We cannot interfere with the judicial process. We suggest that you acquire private legal counsel.”

    Your Family and Erstwhile Friends: “Well, you must have done something wrong, or they would not have arrested you! You are the black sheep in the herd anyhow. We always thought you were a little weird. Sink or swim, buster. A little time in the can never hurt anyone.”

    1. SHG Post author

      It’s fine if you want to use SJ for your personal therapy, but then you’re going to have to pay me for my time listening to, and nodding my head at, your sad story. Because the world isn’t all about sad Bill Doriss. Am I getting through to you at all?

  2. Dave

    Who are these groups that pretend to speak for those accused of nefarious deeds on campuses? I know you have mentioned some specific names and such before, but you don’t in this particular post (not that it is needed for your point, but it would help if one wants to put pressure on them to shut the hell up.) I would list you as a rational defender of actual due process. Perhaps others who actually also defend full due process should also be named just so we can see who is really defending due process and who wants to “compromise” it away.

    1. SHG Post author

      I’m on the edge of outing the organization. It’s crap, and the people involved are clueless, inexperienced, self-righteous and potentially dangerous. That said, it’s new, and if it doesn’t do too much harm in the name of feelz, may eventually grow a brain and some balls and do something useful. I’m prepared to give them some time before ripping them a new one.

      1. Osama bin Pimpin

        Please do disclose, at least to me privately. Inquiring minds want to know and separately ridicule.

        In general and without knowing detail, I support outing savaging these “loyal oppositions” because I think they are generally quislings. They may mean well but they are tools to present an illusion of balance.

        Related question. If you were defending an obviously guilty rapist would you attempt to introduce a defense that was prejudicial but you think might be effective (e.g. she was asking for it since she was dressed like a slut). I think the duty of zealous advocacy requires any non-perjurious means necessary and it’s up to the judge to decide whether to allow it.

        That’s not a popular view but the arguments I get back from legal ethics “experts” usually lamely wish the issue away by suggesting there are nonprejudicial defenses that may be as effective in my hypothetical. That’s not just a matter of the hypothetical. I would think that the best (only) defenses available to the obviously guilty are irrational ones that play to the jury’s prejudice.

          1. William Doriss

            The link to Mark Bennett was awesome. What did you call him? The Texas Tornado? As clear as mud.

  3. mb

    Victim advocates’ open contempt for due process raises the question of what they intend to use to protect complainants from unfair charges of false reports. If you guessed, due process or the mental state of the crime, you’d be wrong. As they have demonstrated, they prefer the protection of social pressure from irrational, uninformed hate mobs aimed at preventing the charges from being filed. Because they are literally fascists. The only way to lose to them is to pretend they are arguing in good faith.

      1. mb

        Now I’m being graded? That’s a trauma I hoped to never relive. Is there anything I can do for extra credit?

    1. Osama bin Pimpin

      I don’t think that’s entirely fair. Outside of sexual assault, victim’s rights groups seem focused on making legally pointless but emotionally cathartic victim impact statements and the legally more relevant right to speak at early release hearings.

      1. mb

        I could give them some credit for that if I subscribed to the idea of sentence first, verdict afterwards. But when they are arguing for a substantive standard that would label virtually every adult a violent sex offender and throwing hissy fits over the suggestion that we should even have a hearing to decide who is guilty and who is not, I see no reason to be nice to them.

        Outside of sexual assault, they are arguing for similar distortions of other offenses such as harassment. I expect pretty soon being in a room with a woman who prefers not to be there will be considered kidnapping and touching any of her property for any reason will be considered robbery.

  4. Keith

    “We have to be reasonable. We have to be willing to compromise or people won’t take us seriously and we’ll have no influence.”

    It’s as if no one has ever heard of the NRA or the ACLU or the various ‘we need due process for the survivor’ groups that have no problem winning an argument without ceding parts of it.

    Do you take stop taking the ACLU seriously because they won’t compromise in defending the Klan’s right to speak, all in the name of free speech?

        1. SHG Post author

          Can’t say for sure, but I don’t recall them ever standing up for the RKBA. It’s all the same Constitution, the parts you like and the parts you don’t.

        2. Keith

          I asked them a while back. This was the reply:

          The ACLU’s position on the Second Amendment is based on the ACLU’s reading of the Second Amendment and in addition the fact that there are other organizations that focus solely on this issue. The ACLU’s concern is what is allowable under the Constitution, not where or when the Second Amendment applies.

          Thanks for getting in touch.

          Sincerely,
          [American Civil Liberties Union]

  5. pml

    Maybe every young male in collage should file complaint saying he was raped or forced into having sex without his consent after everytime he has an encounter with a young lady. This would put the shoe on the other foot as he is now the accusor and the females wouldn’t have the rights to assistance then.

  6. AP

    As long as the fourth bullet/right remained in place (“Being given written statements of allegations of witnesses sufficiently in advance of a hearing to investigate and prepare”) I would not mind giving up the third bullet/right (“Being given written statements of allegations of witnesses”), but I’m guessing that the latter is either just the result of a copy & paste job gone bad or of my eyes playing tricks on me.

  7. Quinn Martindale

    “Being given competent counsel if one cannot afford to retain counsel.”

    That one. It’s not like they’d get one if the complainant filed a tort suit.

    1. SHG Post author

      Putting aside whether they should in a tort suit, that’s an interesting choice. We try to make college available to anyone capable and willing to do the work, regardless of ability to pay, in order to give people an opportunity to lift themselves out of poverty and participate in the American Dream. If some guy from a family of means get accused, he can afford counsel, and having competent counsel is a monumental advantage in facing an accusation.

      A student without means, however, would be left on his own, or perhaps given a grad student in philosophy to advise him (because we know how useful the advise of a grad student in philosophy will be in preparing a defense). So basically, you would favor the wealthy and condemn the poor. I’m rather surprised about your callous lack of concern for poor students, who, as it happens are often students of color. Sorry that you don’t think poor students of color are worthy of the effective assistance of counsel.

  8. Wrongway

    I think you forgot 2 rights.. they’re the only ones I’d compromise on.. I looked for them but I didn’t see them..

    The Right To Cable TV..

    The Right To Sing The Blues..

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