In that peculiar way that only comes about when someone argues vehemently against the very point they otherwise claim to believe, the mantra “but it’s not a criminal trial” was born during the tumultuous Senate confirmation hearings for Brett Kavanaugh, reflecting one of the worst displays of politicizing confirmation for the Supreme Court possible.
In that case, the absence of any meaningful process in Kav’s “trial” for crimes committed against Christine Blasey Ford decades earlier was rationalized away as a “job interview.” It was far from an analogy, but it wasn’t entirely off base. It served to rationalize a misbegotten grasp of what was being done by those who, under most other circumstances, would bemoan the deprivation of due process.
Since they hated Kavenaugh, they needed some means to overcome their hypocrisy, and latched onto the “but it’s not a criminal trial” excuse. Anything to beat the unpleasantness of cognitive dissonance, or compel an unwilling but passionate individual to suffer the burden of thinking.
Having used the mantra to successfully sleep at night during the Kavanaugh hearings, it’s been resurrected among the twitteratti* in response to the new Title IX regs proposed by the Department of Education. Even though this should be obvious to any modestly competent lawyer, the desperately insipid have still latched onto this mantra to justify their opposition to basic due process, such as cross-examination of the accuser. And non-lawyers, who could figure this out if they so desired, have seized upon it riding the coattails of woke lawyers. It’s wrong, stupid and must come to a painful, brutal end.
It’s correct that Title IX tribunals aren’t criminal trial, although that is a reflection of the fact that criminal conduct is being adjudicated on campus by people incompetent to handle such issues and with consequences that are hugely punitive, even if they don’t involve prison. Individual lives are ruined. Families are ruined. Hundreds of thousands of dollars in tuition, or student debt, are forfeited. Futures are crushed. A lifetime of effort and sacrifice lost.
No, it’s not a criminal trial, but it should be. No one should suffer the harsh punishment of Title IX adjudication at the hands of “trauma-informed” humanities profs and admins. That they’ve manufactured at the behest of a bureaucrat a subconstitutional system to harshly punish males without a real criminal trial for real criminal accusations is wrong. Yet, that part doesn’t seem to bother anyone else too much.
But that said, the cries that it’s wrong to provide the accused in a campus trial with “all the same rights” that a defendant would have at a criminal trial are nonsensical. The minimum due process rights provided by the proposed regs barely scratch the surface of the full panoply of rights provided criminal defendants. “What rights,” you ask? Fair enough. Some examples:
- Probable cause determination
- Compulsory process
- Trial by jury
- Unanimous verdict
- Brady/Giglio
- Right to counsel
- Unreasonable search and seizure
- Discovery
- Rules of evidence
- Proof beyond a reasonable doubt
- Self-incrimination
- Confrontation
- Right to proceed pro se
- Double jeopardy
A defendant in a criminal prosecution possesses these rights. An accused in a Title IX does not, and these are the top level rights, each of which provides for additional, more detailed components of those rights, as applied to specific circumstances. No doubt this list is incomplete, but more than sufficient to make the point: the “rights” afforded the accused in a Title IX hearing come nowhere near the rights to which a defendant in a criminal prosecution is entitled.
It’s somewhat understandable that non-lawyer advocates for accusers in these proceedings have latched onto this false mantra, as it allows them to pretend they aren’t being wholly hypocritical in their defense of favored criminal defendants while demanding the deprivation of basic due process for disfavored campus “rapists.” And that’s all male students are receiving, the most basic version of due process, if that.
But it’s the social justice lawyers, who provide cover for this mantra, that allow this absurd mantra to be perpetuated. “But it’s not a criminal trial” is the cry of the liar or idiot, or perhaps both, but it is a false and nonsensical claim. The minimal rights proposed by the new regulations come nowhere near the rights afforded criminal defendants.
And, as if it needs to be pointed out, even when the full panoply of due process rights are provided criminal defendants, it’s not as if that means they’re going to win at trial. This nonsense needs to die, and any lawyer who raises this garbage should be recognized for the liar or fool they are.
*A few social justice lawyers have raised this argument in my twitter feed over the past few days, the latest coming from a lawyer who has been Rule 1’d here, and so doesn’t get the benefit of a link or mention as we avoid inviting engagement with nutjobs. It’s all available on the twitters if you care to look, but contributes nothing of interest or thought.
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C. S. Lewis.
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”
For the robber baron (antisocial personality disorder) possesses no conscience, regret or empathy.
How dare you dub barred, licenced attorneys of being “liars or idiots” without any due process. These are serious labels that, if taken seriously, would result in serious professional consequences, yet you–by your own admission–deny them the opportunity to even answer the claims in the venue you make them!
Or, less snarkily, it is entirely fair to suggest that a higher level of due process is required when the consequences are “…lives are ruined. Families are ruined. Hundreds of thousands of dollars in tuition, or student debt, are forfeited. Futures are crushed. A lifetime of effort and sacrifice lost.” But that is the question at hand, and there is nothing unfair or inaccurate in stating that it is wrong to want to apply (as you may not, but many others do) the appropriate level of process for locking someone in a cage.
The line I quoted there is the only place in this piece where you’ve actually made an argument; the rest is just sputtering anger at the fact that people who more-or-less agree with you need to be reminded of basic facts by people who don’t agree with you.
I see that you disdain anonymity (:eyeroll:). If you want you can judge this an attack and use that as an excuse to delete this–but lol purported leftist hegonomy aside, there’s no way I’m touching this issue with my real name with a ten foot pole
Jeez, right out of the box.
I went to a costume party where the idea was to create a costume that no one could figure out. Cool, right? The more confusing the costume, the more likely to win the prize! There was a guy wearing Frankenstein shoes, a Speedo, cabbage for a shirt and a Belgian waffle hanging from a nose ring. He had a dead cat on his head. No one, but no one, could figure what he was portraying. It was impossible, and he won in a landslide.
Was that guy you?
Will no one raise the libertarian argument? The college is a private club with right of free association. They can determine their membership by whatever rules they like. If they want to have sham trials to decide who to eject (or to accept) that’s their prerogative. Disputes should be handled through contract and libel law.
Is our republic so far gone that this is an unthinkable idea?
When the college is an arm of the state, as it very often is, the libertarian argument doesn’t carry much weight.
Not if they receive federal $.
And even then, if they even remotely promise an “equitable” or “fair” proceeding, it can be a breach of contract.
As a libertarian, you should respect contract rights.
Fair enough, but by what rights then do they steal the remainder of the accused monies and refuse to issue refunds, or refuse to release diplomas, or ensure that transcripts of classes taken and grades earned have the word “rapist” stamped on them?
The “job interview” thing was nuts from the get-go. The idea that a governmental entity would or could legitimately decide not to hire a job applicant over a bunch of unsubstantiated crap mailed in to the final interview panel lacked any foundation in reality from its inception. Bending it over into the Title IX “not a criminal trial” context is worse, because the interest in being allowed to remain on campus goes beyond applying for a job in the sense that it is something in which the accused has typically invested substantial sums.