How much “process” is actually “due” to someone who has been accused of sexual harassment or assault by multiple alleged victims but who will never face trial because of statute of limitations restrictions? That’s a question we’re hearing a lot about these days, whether you’re talking about Hollywood moguls, network news legends or Washington officials. It’s also the subject of the latest think piece from the Washington Post’s Christine Emba. (Yes, that would be the same Christine Emba who recently suggested we need to rethink sex and just how much of it men should be getting.)
She actually begins this examination of how the Supreme Court of Public Opinion is operating these days on fairly solid ground. It’s absolutely true that the concept of due process is somewhat exclusive to courts of law. The presumption of innocence, the right to counsel and the opportunity to have your case decided by a jury of your peers are rarely if ever extended into personal interactions or even employment situations.
But the fact is they we do tend to mimic those concepts in our daily lives, or at least the more civil among us do. Simply accusing someone of improper behavior isn’t enough, particularly when the accusation is leveled against someone who you would never expect to behave in the fashion being claimed. Whether the end result is terminating a friendship or letting someone go from their job, we want more than that. We want some sort of evidence, even if it doesn’t rise to the level of what would be acceptable in court. Failing to be diligent about such things opens the door to the possibility of misinterpretation or even mendacity leading to a false positive. That’s where Emba goes a bit off the deep end, mockingly pointing to, “the lurid visions of innocent men felled by “huntresses” who will “believe all women” at the expense of rule of law.”
This, she declares, is a fever dream.
We aren’t seeing an epidemic of men being railroaded for flirting. There is no wave of false accusations washing defenseless men from their rightful careers. The cases taking over the news weren’t sparked by untouchable accusers whose pointed fingers have the power to ruin careers. Instead, we’ve uncovered systemic, ongoing patterns of abuse perpetrated by men with power against women with much less of it. The evidence isn’t scanty, and the accusations aren’t random. There is never just one victim. And due process, invoked indulgently, often allows the guilty to linger in power for far longer than they deserve.
In an article for the Establishment, Ijeoma Oluo writes that the fixation on due process is “an attempt to re-center the concerns of men. . . . If there’s anything these stories show, it’s that these men in their years of open abuse were given more than just due process — but the women, many of whom had tried bringing this abuse to those in authority years before, were given no process at all.”
Where sexual misconduct is concerned, arguments for due process are rarely about legal standards or constitutional ideals. More often, they’re about to whom the process is due.
I’ll confess that reading opinions from both sides of this ongoing debate has led me to modify my position a bit. As much as it gives me a sick feeling to say it, the bar is indeed lower in some of these cases than it would be in a court of law. But the consequences for the accused, while still devastating in many ways, are also not as severe as going away to prison for a significant part of your life and spending the rest of it on a sex offender registry list. And the fact that the claims which date back many decades can never be prosecuted necessitates the use of the Supreme Court of Public Opinion.
But that court is far more prone to abuse than a court of law, so we can’t be overly casual or unquestioning in accepting the results. Emba is quick to conclude that we aren’t witnessing an epidemic of men being railroaded for flirting. This is true. The total number of men being accused is still relatively small compared to the total population. But that likely wouldn’t come as too much consolation for the people implicated in the infamous “Jackie” story featured in Rolling Stone, the University of Virginia football players from a few years back or too many other cases we’ve covered here.
And we’re not just talking about cases of outright false accusations. When does asking someone out on a date cross the line to sexual harassment? We’re treading on some dangerous turf here. That doesn’t mean we stop, but we also don’t relegate every disputed case to the category of fever dreams either. If multiple, credible allegations surface against a man and he immediately apologizes and owns up to it, then let slip the hounds. But one or two allegations against someone who immediately and steadfastly denies them at least deserve a far deeper dive before the Public Jury brings them in guilty and we metaphorically load them into the tumbrils and lop off their heads