A Note About Due Process

Dear Democrats,

Denying the basic democratic right of Due Process is not taking the high and holy ground.

To read much of the news today, the Democrats would have us believe that they are somehow representing the "good" to the Republican’s "evil" in forcing the resignation of Representative Conyers and Senator Franken.  But wait – both men deny at least some of the allegations against them.  Should they not be entitled to defend themselves, to have a fair and full hearing on all the evidence before being summarily forced from their careers?  Apparently not.

And, if one takes much of what we read today as correct, the Democrats intend to use this denial of due process to their members as a way to force the resignation of Judge Moore if he is elected and maybe even the resignation of the President, both due to unproven allegations of sexual misconduct against them that they have denied.  Democrats somehow believe that their actions have given them the moral high ground that will lead to their ability to remove opposition based on unsubstantiated allegations alone.  That is, they believe that acting as a lynch mob is somehow applaudable.

Yet, I wonder why anyone who really understands our democracy and our system of justice would or could respect a party that doesn’t respect Due Process.  For those who have forgotten what that term means, it is the right of citizens to fair treatment through the judicial process.  It is guaranteed by both the Fifth and Fourteenth Amendments of our Constitution.  Due Process protects citizens from arbitrary punishment and sanctions without the full procedural and substantive processes provided by the law.   Punishment on mere allegations alone and without a full presentation and examination of relevant evidence is not due process.  Acting arbitrarily against someone simply for political gain is not due process. 

These political lynchings are troubling on many grounds.  First is the eagerness with which the Democrats are willing to dismiss a basic constitutional safeguard simply for their own political purposes.  If we applaud such action then we encourage these sorts of political lynchings in the future, perhaps based on other grounds, but always to the detriment of our system of democracy.  Second, but related is the denial to the people of their right to choose their representatives; the leader of a political party should not overturn the will of the people without fully substantiating evidence that such action is absolutely necessary, and finding such evidence would require due process.  Again, the Democrats do not seem to understand the role of the electorate and the voice of the people in our democracy.

Looking now to the individual toll on both accusers and accuseds, the third ground on which these political lynchings are troubling is that the men are now “guilty” without any proof of that guilt, and no opportunity to present their side or force an accuser to come forward and prove their accusation.  Whether guilty or not, they must now carry that label with them.   This sets a very dangerous precedent.  Fourth, these punishments based on accusation alone tend to cheapen legitimate accusations that, without proof in a court of law, will always be open to doubt and that doubt will be a further and continuing wound to the victim. 

The Democrats may think they have scored some sort of victory by demanding immediate resignations of their accused colleagues.  Al Franken may think that he has done something noble by falling on his sword for his party, even while denying the allegations against him.  But these are not laudable acts.  They are instead direct affronts to, if not attacks on our democracy.  Anyone who has even a rudimentary knowledge of that democracy or how our justice system works should be completely appalled.  Even those who like the ultimate goal of these acts should speak out against them.   Certainly, there should be no support or reward for these actions or for any such similar actions in the future.  We must not allow the ends to justify the means, especially when those means deny our basic rights as citizens and are a direct affront to our Constitution and our Democracy.

Addendum:  Breaking news just now that one of Moore’s accusers has admitted to forging at least part of the yearbook inscription that was used to accuse him.  Things like this support not rushing to judgment based on accusations alone.  (And by the way, why isn’t this on the front pages of the main stream and Democrat media in the same way that the initial accusation was?)

This Is Getting Ridiculous

Do you now or have you ever [been a member of the communist party] behaved inappropriately toward a woman?  The hysteria is incredible, and it really is getting ridiculous.  Today’s accused, to the delight of some and dismay of others, is Al Franken.

Let me first state that I am a woman and yes, I have been harassed in the past.  But, let me also declare that was the past and based on the circumstances of the time I chose to or not to make formal or informal complaints.  I certainly do not consider myself a victim today.  Let me also state that I am not particularly fond of Al Franken, as a legislator or in his previous role as a comedian.  But, like so many other of the delayed complaints, I find the complaints against him to be ridiculous at this time.

Let me also note that I am not making judgment about the acts complained of.  At the time of the acts that so many women are now complaining of against so many men, the acts may actually have been reprehensible and inexcusable and perhaps criminal.  But, perhaps they were not.  And that is not an attack upon the women now making the claims.  (It is frightening in itself that any words that might be seen as an questioning the “me too” victims are seen as attacks and quickly silenced.) 

The many allegations that newly surface every day are usually from many years ago.  To use the most recent Franken allegations, they are from around 10 years ago.  Now, if we take a single act alone and in a vacuum, it may have a very different character than when looked at in the context of its circumstances.  For example, if I told you I forcefully yanked a child’s arm you might think that bad, but if you learned that it was done to pull him out of the way of a speeding oncoming car you might think differently.  And, what if the child, now an adult, came out and complained that years ago I had hurt him by yanking his arm.  If I or others were not allowed to provide context, might not an injustice result?

Similarly, we cannot just absolutely accept every isolated act reported now as some form of punishable harassment.  To take Franken again:  there are some pretty ugly photos now surfacing of him grabbing women’s breasts. There are reports of his crude jokes in which he talks about assaulting women.  In isolation these acts or words are certainly offensive. But, Franken was a comedian at the time who used this form of comedy and this sort of comedy was generally found funny by many of his followers (indeed, you can still find this sort of infantile humor performed on a variety of comedy shows and by many comedians today).  Perhaps Franken would not use this humor today and perhaps the audience would not today find it so funny, but the alleged actions did not take place today; they took place at a time when that sort of humor was routinely accepted.  That does not make it right, but it also does not merit the horror and hysteria that is being voiced today.

One must wonder why suddenly so many come forward with age old stories of harassment.  Yes, the climate for reporting is different today, and hopefully that means that women who are harassed or assaulted today will come forward today with their complaints.  But such complaints are far different from suddenly finding one’s voice over something that one until now had been content to live with for years and which occurred at a different place in life, both societally and individually.

Are we going to search everyone’s life back to the day of puberty to see if they ever did anything that today we would find offensive? And are we going to judge yesteryear's acts by today's standards? Because that seems to be what we are doing.  That is really unfair because times and circumstances are different today than 10 or 20 or 30 or 40 or 50 years ago.  If something was acceptable at the time it occurred, is it really fair to find someone guilty years later when a particular act or behavior is no longer considered acceptable?

Time passage is important.  People’s memories change over time.  People may now perceive an interaction in a completely different light than they did at the time of its actual occurrence.  In most instances there are statutes of limitation for these types of complaints and there is a reason for those limits.  Similarly, courts and legislatures generally do not apply new laws and prohibitions retroactively. 

But, in the court of public opinion, media allegations, and politics there are no such limitations.  One only need to come forward with a decades old allegation, claim that they felt harassed, demeaned, or humiliated and the alleged harasser is immediately condemned.  Those who question the complainer are also condemned for not believing her or seen as condoning the types of acts complained of.  This is a real danger.  And, it is approaching some sort of mob rule.

We have a justice system that provides remedy for wrongs.  That system assumes someone is innocent until proven guilty.  It also assumes that those complaining are being truthful.  When the two sides disagree suggesting that one of the assumptions is incorrect, then the law provides a way of presenting relevant evidence in order to arrive at the truth of the matter.  When we not only allow but encourage people to come forward with allegations and then judge them in the media without a full hearing of all relevant evidence we are denigrating our justice system and by implication our way of law and government.

I am glad that women feel that they can come forward now and be believed about their reports of harassment, but I am not sure that it is really wise to encourage the rush to judgment about incidents that allegedly occurred long ago.  We are creating a class of victims in all the “me toos” but beyond that we are encouraging a belief that all one has to do is say “me too” and they will get vindication – without any actual proof, without the hearing of the other side of the story, without any due process at all for the accused. 

And, so, what then happens when someone does make up an allegation? What happens when allegations become nothing more than political tools, perhaps a way of removing an opponent?  And, what happens when the full facts and circumstances would suggest that the accuser was not wronged in the way she now believes or perceives? We will never know the answers to these questions, because we are not allowing for this sort of rational consideration of each allegation.

The most written about allegations on this particular day involve Roy Moore and Al Franken.  I don’t particularly like what I know about either man, but I also think that neither should be railroaded based only on allegations of incidents that occurred years ago. This is not fair to the men, nor is it fair to their accusers who have a right as well as a duty to have their allegations solidly proven. I am also disturbed by the way that both are being used for political gain by the men’s opponents.

I do not think that it is disrespectful to question an accuser, even one who is accusing someone of sexual crimes or harassment.  And I do not think that it is unreasonable to wonder whether the plethora of such allegations coming forward is not perhaps to some extend a sort of social media way of belonging.   And, I am skeptical that simply a mass of people coming forward because it is the thing to do right now is really a way of empowering women to come forward when the time is not so ripe for such allegations.

Women who are harassed should come forward with a timely complaint.  They should be believed and allowed to present their case against the accused.  The accused should be presumed innocent and allowed to present their view of the alleged events. Honest and reasonable questions about either’s story should not be viewed as attacks.  Judgment should occur without hysteria and only after a full and fair hearing of all the facts.  This, of course, is easier when the facts are not decades old, forgotten, or altered by faded memories.

I began this post by changing the words of the McCarthy hysteria to the words of today’s sexual harassment hysteria.  The hunt for Communists was not good then, and the hunt for harassers is not good now.  The hysteria is out of control and mob mentality along with media “trials” and rush to judgment, while perhaps cathartic for some, are not healthy for our democracy.