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.