It’s a bit difficult to discern what kind of argument Emily Yoffe is trying to make in her recent article in The Atlantic entitled “Does Anyone Still Take Both Sexual Assault and Due Process Seriously?” what with the haze of redundant and disingenuous proclamations of sympathy for sexual assault survivors and all. Her argument, which is further obfuscated by ill-considered appeals to the holy juridical tenet of “due process,” appears to be that sexual assault is now purely a partisan issue, which threatens to undermine justice itself. (Yoffe has been harping on this issue for years, straddling the thick line between “I empathize with survivors, I really do” and “this is a zero-sum game in which believing women makes men victims.”)
In reference to the Kavanaugh hearings, Yoffe argues, “Republicans — adopting the rhetorical style of the president — dismiss accusers. Democrats mock the idea that fairness and due process are necessary for the accused.” The tragic result: “Democrats’ disregard for unbiased and impartial fact-finding in their rush to embrace the slogan #BelieveSurvivors may actually have helped confirm Kavanaugh.”
Let’s start with the obvious.
I’m not sure which Ivy’s law school Yoffe attended, but she must have skipped the lecture on the difference between a criminal trial and a job interview. I know I’m not making a novel point here, but when was the last time you filed a Fifth or Fourteenth Amendment due process case against a potential employer who opted not to hire you? Let us review the concept of “due process” as enshrined in the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Unless one considers a Supreme Court seat “private property” that had been bestowed upon Kavanaugh extralegally prior to his confirmation hearings, I fail to see a violation here, even had he not been confirmed. (I’d put the odds of a case arguing that a sense of entitlement equates to “private property” coming before the current SCOTUS at 12%, but it has yet to occur and is hence not settled precedent.)
On to the Fourteenth Amendment, which I would like to remind everyone was adopted during Reconstruction in a (failed) attempt to prevent Southern states from de jure re-enslaving African Americans after the Civil War, and was not, indeed, intended to guarantee Yale Law grads their dream jobs:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Kavanaugh, even had his confirmation not been “plowed right through” (oh, the semiotics), would have escaped with his life, continued to rove about the land as his whims dictated, and retained his nearly $1 million in net worth.
Still, according to Yoffe, Democrats’ (admittedly politically-motivated) decision to take Dr. Blasey at her word somehow showed an utter disregard for “due process” rather than a simple (if in some cases feigned) recognition of her humanity while she relived a sexual assault in front of a panel of hysterically hostile men and their female ‘Zonie sicario. And that total contempt for justice on the part of Democratic senators — rather than the GOP smear campaign aimed at Blasey, the White House’s obstruction of the FBI investigation of her allegations, and Mitch McConnell’s sociopathic machinations — explains Kavanaugh’s confirmation. Lady, whose side are you on again?
Oh, right. Men’s. If we take a look back at Yoffe’s ouevre, she seems inordinately concerned with what she terms the “excesses” of the Obama administration’s 2011 expansion of Title IX protections for women on college campuses, enshrined in the famed “Dear Colleague” letter that instructed colleges and universities to use the “preponderance of evidence” standard (meaning, basically, that they were directed to side with the party who seemed more credible) to determine what course of action to take in the event of a sexual misconduct allegation.
Universities do not administer lethal injections, seize students’ assets (of their own accord), or deprive students of their freedom when adjudicating campus sexual assaults, they simply decide how to ensure that they don’t allow their campuses to turn into hostile environments for women. Universities are not “states,” nor do they wield the same forms of power over their students that governmental institutions do over citizens.
Yoffe seems to have failed to make that distinction throughout her tenure as a constitutional law expert for The Atlantic. She went out of her way to track down and interview young men whose lives had been “ruined” by Title IX cases, decrying the lack of “due process” in campus sexual assault proceedings and thus tacitly declaring her fandom of the “beyond a reasonable doubt” standard used in criminal cases which actually do present the possibility of depriving someone of “life, liberty, or property.”
Here’s the thing: campus disciplinary proceedings in sexual misconduct cases are administrative procedures carried out by private or semi-private institutions (state- and federally-funded colleges and universities do not, by dint of that funding, morph into governmental agencies — this fact is settled law). Due process does not attach to administrative procedures, it applies to civil and criminal cases as outlined in the Fifth and Fourteenth Amendments that dictate the parameters of governmental action against citizens.
Obviously, Yoffe has no idea what she’s talking about (hey, Atlantic, I’ll take her job if you ever figure that out), so that’ll be enough about her.
(The argument I’m about to make isn’t a completely new one for me, so I apologize for the redundancy if you happen to be one of the zero people who has read everything I’ve ever written.)
What happens when we apply the “beyond a reasonable doubt” standard in criminal sexual assault cases (never mind in college administrative hearings)? It results roughly in a net of 6% of rapists ever seeing a consequence, that’s what. The presumption of innocence is generally a laudable bit of legal philosophy, as is the guarantee of due process, but something funny happens in rape cases: because the burden of proof “beyond a reasonable doubt” falls onto the prosecution (i.e. the victim), a rape victim is required to prove a negative, that she did not consent to sex. The presupposition, then, is that women wander the Earth in a constant state of consent and that they must prove that they temporarily revoked it for the period of time during which an assault occurred.
Sans a firsthand witness other than the defendant, this absurd requirement applies even when there is DNA evidence and verified injury. Seriously. “She likes it rough” has come to be one of the more common — and successful — defenses against rape charges in which the perpetrator’s DNA has been collected from the victim and she has documented injuries derived from the encounter (thank you, porn industry).
Does anyone believe men don’t know this and act with it in mind? The de facto result of this particular arrangement of legal reasoning and procedure is that rape is legal 94% of the time. Why would Yoffe (or anyone else other than a rapist) be alarmed at the prospect of a disruption of this situation? That was a rhetorical question.
The law works exactly as intended because the law was encoded and elaborated by men, for men. That women are demanding via #MeToo and #BelieveSurvivors that women’s humanity be taken into account in sexual assault proceedings — whether they occur in college administrative hearings, job interviews, civil cases, or even/especially criminal trials — does threaten to upend some of the foundational concepts of our legal system.
And? What’s the problem, again?
Let’s say we were to make one simple move and replace “beyond a reasonable doubt” with “clear and convincing evidence” as the evidentiary standard in criminal sexual assault trials:
According to the Supreme Court in Colorado v. New Mexico, 467 U.S. 310 (1984), “clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable.
You know, allow judges and juries to apply common sense when deciding whether an assault has taken place, rather than allowing defense attorneys to undermine victim testimony with irrelevant personal slander about the victim’s fashion sensibility, alcohol consumption, or sexual history, and then giving jurors to believe that that “evidence” holds as much weight as all of the other evidence presented at trial if it creates a “reasonable” doubt. Juries are not, as a rule, “reasonable” when it comes to sexual assault trials because we live — as even ol’ Yoffe will admit — in a misogynistic society in which women are assumed to be manipulative liars and men are assumed to be tellers-of-truth even when they’re obviously lying their fucking faces off (see the Kavanaugh hearing).
That sexual assault trial juries (and judges) cannot be relied on to apply reason can be easily illustrated by comparing rape trials to theft trials. Rarely does a defense attorney convince a judge or jury that the owner of a stolen car loaned it to the thief, because that’s fucking ridiculous. It’s also ridiculous to believe that a woman who has reported a rape to the police, endured a gynecological exam and evidence collection that includes having her genitalia photographed, and withstood recounting the experience in a room full of hostile strangers is probably just a lying whore. But alas.
Perhaps instructing juries as to what “clear and convincing evidence” means might make them behave a little more reasonably (probably not, but it’s worth a shot). Who loses in this arrangement other than premeditated rapists? This is not exactly a radical proposition, nor would applying the “preponderance of evidence” standard be, and neither would necessarily violate the due process clauses of either the Fifth or the Fourteenth Amendments (these standards are already used in some criminal cases).
“Beyond a reasonable doubt” does not derive from the Constitution but from precedent, which renders it open to modification via much simpler means (kinda like Roe is about to be). I am, however, aware that modifying standard of proof precedent to make rape cases easier to prosecute would be well-nigh impossible with the radicalized MRA Supreme Court we’re now saddled with despite the “lack of due process” poor Brett endured.