Atlantic article criticizes due process as being harmful and full of lies

I came upon this article when someone sent me the tweet below (I don’t know who Cathy Young is). The caption is pretty snarky, but the article in The Atlantic  by Megan Garber, which you can access by clicking on the link or the bottom part of the tweet, justifies the snark. It’s really a pretty dire article that criticizes due process because in some cases (read: accusations of sexual misconduct), “due process” involves making the witnesses uncomfortable or upset, and causing harm. And it can’t guarantee justice.

The article is about how the defense lawyers for Harvey Weinstein have been going pretty strongly after the witnesses, sometimes portraying them as forgetful, imperfect or possibly making stuff up. Further, some of the stuff that has come out, whether it be Weinstein’s misshapen genitals or the tampon of one of his alleged victims, is ugly.  I’m not quite sure what the “lies” of due process are (the words “lie” or “lies” occur only in the headline), but it seems to be that, as the headline says, due process seems reasonable and straightforward, but can be very ugly, and not produce the result that we consider “just”. But those aren’t really “lies”.

Garber’s point, as far as she has a point, seems to be that due process is overrated because of the difficulties it creates for witnesses in cases like the Weinstein trial. She doesn’t go so far as to argue that the rules of evidence should be suspended or weakened, but that’s what I glean from her article. Here are some excerpts. (The emphasis is mine.)

Donald Trump, defending a staffer who had been accused of domestic violence, joined the chorus: “Is there no such thing any longer as Due Process?”

Of course there is. And it has been on display in Weinstein’s long-awaited criminal trial. That trial has been, even as blunt-force legal proceedings go, particularly ugly. The women who have accused him of rape and other forms of assault have told graphic and harrowing stories, often tearfully, on the stand. (Weinstein has denied all charges of nonconsensual sexual encounters.) They have spoken of pleas ignored; of pants ripped off; of a tampon forcibly removed; of pain; of degradation; of threats; of fear. Weinstein, too, has endured his own humiliations as the women have testified: Jessica Mann, a former aspiring actor who alleges that Weinstein raped her, said last week that Weinstein has genital deformities. As evidence of her claim, a picture of Weinstein—naked—was displayed to the jury.

No person shall be deprived “of life, liberty, or property, without due process of law.” Due process suggests the comforts of idealized thinking, summoning notions of equality and fairness and the sanctity of facts. It may be rooted in reason; in practice, though, it can look like what it has during Weinstein’s trial: a perpetuation of harm.  
There’s no doubt that it’s hard for a witness, particularly one who might have been raped, to face Weinstein in court and recount what happened. But that’s not a “perpetuation of harm”, it’s a way to ultimately prevent the greater harm of sexual predators like Weinstein from continuing to operate.  Garber further recounts sharp defense questioning of prosecution witnesses confirming the stories of Anabella Sciorra, who claims she was raped by Weinstein in the early 1990s.

Garber then reaches her conclusion, referring to an interview of one of Weinstein’s attorneys, Donna Rotunno, by New York Times reporter Megan Twohey (my emphasis):

The structure of the criminal trial, when it deals with the intimacies of sex, means that testifying—the ostensibly straightforward act of telling one’s story—can require extreme bravery. “There is absolutely no risk for a woman to come forward now and make a claim. Zero,” Rotunno told Twohey. Here, however, is one of the many possible counterarguments: “He held me down on the bed and he forced himself on me orally,” Haleyi told the jury. “I was on my period. I had a tampon in there. I was mortified.” Here is another: Mann sobbed as she told the court that Weinstein had raped her. She hyperventilated. When she was given a break, she was heard screaming from a back room. She had spent several hours testifying. “Defense lawyers again portrayed her as an opportunistic manipulator who had a long romantic relationship with the producer,” is how a Times subheading summed up part of the time she’d spent on the stand.

This is due process at work. Whether the process will result in justice is a notably different matter. The prosecution rested its case on Thursday, after two weeks of testimony, with weeks’ worth of rebuttal from the defense likely to follow. As Weinstein was leaving court last Friday afternoon, after Mann’s testimony about his body, a reporter asked for his reaction to the proceedings. This was Weinstein’s reply: “Wait to see what the lawyers say about her.”

In my opinion, Weinstein is guilty, as there is too much concordant evidence pointing to his guilt. But he deserves a fair trial. And a fair trial means, if it means anything, that the prosecution must prove its case beyond a reasonable doubt. And that, in turn, requires a vigorous defense, in which defense attorneys use every legal opening they can to cast doubt on the prosecution’s story, and on their witnesses. And there are rules that must be followed; when they’re not, the judge says “Objection sustained.” Yes, it’s grueling, and no witness escapes unscathed. 

Yes, it can be brutal, and victims may get retraumatized. But what is the alternative? If due process doesn’t “result in justice”—which seems to be one of the other lies that Garber refers to—what is her alternative? I don’t see any, not so long as guilt, with its sentence in this case a lifetime behind bars, must be proved beyond reasonable doubt. Does Garber want to use the Title IX standards of “preponderance of evidence” instead? I don’t think any of us would support such a system.

When I was an expert witness for the defense in DNA cases, which often involved rape and murder, I was at first horrified at how the prosecution attorneys would go after me, questioning my credentials (“Really, Dr. Coyne—you work on flies. How can you have any expertise in human genetics?”), and probing for any weakness they could, even stuff that I thought was unfair (“You can’t simply add the probability of lab error to the probability of a random match. That’s apples and oranges!”). But later I came to realize that this kind of probing and jousting, particularly on the side of the defense (I worked for overburdened and underpaid public defenders who were amazingly dedicated), is necessary to air every possible weakness in a case.

Again, if Garber has an alternative to due process that causes less “harm,” I’d like to hear what it is. No process can guarantee justice, but due process is, at present, the best we’ve got.

76 Comments

  1. BobTerrace
    Posted February 10, 2020 at 11:09 am | Permalink

    To paraphrase Churchill who was talking about Democracy:

    Our criminal justice system is the worst form of justice except for all those other forms that have been tried from time to time.…

    • Nicolaas Stempels
      Posted February 10, 2020 at 12:38 pm | Permalink

      +1

  2. DrBrydon
    Posted February 10, 2020 at 11:17 am | Permalink

    One hopes, for her sake, that Ms. Garber never has to experience due process from the defendant’s standpoint. It has been clear for decades that rape trials are particularly difficult since they have a tendency “to put the victim on trial.” People are human, though, with human flaws, and even an allegation of rape is sometimes false. The protections of due process are especially important in instances where the crimes or accused are infamous.

    • Ken Kukec
      Posted February 10, 2020 at 12:37 pm | Permalink

      In most rape cases there are generally only two available defenses: misidentification (usually applicable only where the victim and the accused are strangers) and consent (usually applicable where the victim and the accused are acquainted).

      In misidentification defense cases, there is usually no reason to attack the victim’s credibility, other than as to the victim’s ability to have perceived and to identify the perpetrator. In consent-defense cases, there’s usually a more probing inquiry on cross-examination regarding the incident itself and the circumstances leading up to it, some of which may be quite uncomfortable for a testifying victim.

      As to any type of rape case, nearly every jurisdiction in the United States has adopted a so-called “rape shield law” that prohibits the defense, except in very circumscribed circumstances, from making any inquiry into the victim’s sexual history with anyone other than the accused.

      These rape shield laws have put to an end some of the practices of the bad old days that were regarded as putting “the victim on trial.”

      • Nicolaas Stempels
        Posted February 10, 2020 at 12:45 pm | Permalink

        Ken, I somehow missed your reply, but I think that indeed these ‘rape shield’ laws are an essential element to avoid putting the victim on trial.
        Nearly every jurisdiction… which are the jurisdictions that don’t?

        • Ken Kukec
          Posted February 10, 2020 at 1:07 pm | Permalink

          The first rape shield law was adopted in Michigan in 1974, and over the next quarter century, most states (and the US federal courts) had adopted them. There were still some hold-out jurisdictions in the early part of the 21st century, but they may have all adopted them by now. Off the top of my head, I can’t name a state that hasn’t.

          • sted24
            Posted February 10, 2020 at 4:54 pm | Permalink

            Hi Ken

            I understand the rationale for excluding a witness’s (victim’s) previous sexual history with others. But why is a defendant’s alleged previous sexual history with others (as in this trial) admitted?

            If you are trying someone for, say, bank robbery can you bring up that he was previously convicted of bank robbery (or was alleged to have conducted one). My understanding is that you cannot?

            So why are such allegations permitted here? And is it fair?

            • Ken Kukec
              Posted February 10, 2020 at 9:44 pm | Permalink

              In federal court, the admissibility of a defendant’s prior bad acts or crimes is governed by Federal Rule of Evidence 404(b). In essence, the prosecution cannot introduce evidence of a defendant’s prior bad acts or crimes solely for the purpose of showing that the defendant is a bad person predisposed to committing crimes.

              The prosecution can, however, introduce such evidence for other specific purposes — such as to show that the defendant had a distinctive method or pattern for committing such crimes or to show that the defendant was not acting under a mistaken understanding of the circumstances regarding the charged crime since the defendant had committed similar crimes before.

              I haven’t been keeping up with the day-to-day introduction of evidence in Weinstein’s case close enough to know precisely how much evidence of uncharged misconduct the prosecution has offered against him, or to know the theory of admissibility for such evidence in his case.

              • sted24
                Posted February 11, 2020 at 7:44 am | Permalink

                Thanks!

    • Nicolaas Stempels
      Posted February 10, 2020 at 12:37 pm | Permalink

      Yes, that is very true. Not only because the tendency “to put the victim on trial” (although certainly true), but even more elementary, it generally starts as a “he said, she said” from the beginning in most cases.
      Due process is supposed to find out what actually happened, but it often is an uphill battle.
      I agree with the OP though, it is the only even remotely acceptable means we have at our disposal, although it might often not result in ‘justice’.

  3. David Kahn
    Posted February 10, 2020 at 11:20 am | Permalink

    I don’t read this as an indictment of due process, as such, but in the way it is used as an excuse to humiliate and discredit accusers. I doubt the author here is calling for a regime of “accused, therefore guilty.”

    • Posted February 10, 2020 at 11:29 am | Permalink

      Trying to cast doubt on accusers (or on those accused) is part and parcel of this system, and the questions asked were within the law and were allowed. So I do interpret this as a criticism of “due process.” If accusers are not going to be questioned sharply, and made uncomfortable at times, then due process isn’t working, so what does the author suggest?

      • David Kahn
        Posted February 10, 2020 at 11:40 am | Permalink

        Nothing, admittedly. I don’t have an alternative either.

    • Deodand
      Posted February 10, 2020 at 6:12 pm | Permalink

      Why are you using the obsolete term ‘accusers’ they are ‘Survivors’ and whatever they say is true.

      Therefore the ‘purpose’ of a sexual assault trial is to determine the punishment of the ‘Perp’ (e.g. the one accused) and give the ‘Survivor’ justice.

    • Al
      Posted February 11, 2020 at 6:39 am | Permalink

      Why would you doubt that? That is exactly what feminist activists have been trying to do. Take a look at LEAF in Canada. The game is to get feminist “expert witnesses” into trials to assert anything that facilitates conviction, often completely unscientific, so that precedence keeps tipping the scales toward easier and easier conviction. They have managed to get the court system to “advise” judges in accordance with their agenda.

      A number of high profile acquittals have hinged on the accusations being at odds with the accuser’s own communications history or the accuser changing their story until they hit upon one that can’t be disproven. The feminist response in Canada has been to successfully push for the defense to reveal all of their evidence to the prosecution prior to trial, thereby facilitating abuse of the system by false accusers. Ghomeshi would be convicted if tried under those rules.

      It is worth noting the number of corroborating witnesses in some college sexual assault cases where the allegations have been proven false beyond doubt. It seems that “solidarity” and “listen and believe” can trump integrity.

  4. Jon Gallant
    Posted February 10, 2020 at 11:46 am | Permalink

    The trouble with Due Process in judicial proceedings is that it gives the defendant a chance. This violates the basic principle of upholding Virtue above all, which underlies such other processes as Title IX proceedings on American campuses, the Moscow Trials, and the tribunals of the Sacred Congregation of the Roman and Universal Inquisition.

  5. Mike Mayer
    Posted February 10, 2020 at 11:48 am | Permalink

    This sounds like she is assuming the accusers are telling the truth by calling them “victims” or “survivors”. That is not always the case, and that is part of what the trial determines.

  6. GBJames
    Posted February 10, 2020 at 11:52 am | Permalink

    sub

  7. Posted February 10, 2020 at 12:00 pm | Permalink

    I have an alternative. Why not have the women give their testimony in a recorded session in a private setting, where they answer the questions from the attorneys? It would be the same questions and the same answers, but without having to sit in the presence of their rapist.

    I see flaws in this, but was wondering how others saw it.

    • phar84
      Posted February 10, 2020 at 12:09 pm | Permalink

      As long as the defendant have the same rights.

    • DrBrydon
      Posted February 10, 2020 at 12:11 pm | Permalink

      Part of due process is the right to confront one’s accusers (Sixth Amendment), which is generally construed to mean the right to face-to-face confrontation. The reduction in pressure provided by recording could also be the reduction in pressure to tell the truth.

      • Ken Kukec
        Posted February 10, 2020 at 12:56 pm | Permalink

        Yes, the Confrontation Clause of the 6th amendment has been construed to give a criminal defendant both a right to a probing cross-examination of prosecution witnesses and a right to confront those witnesses face-to-face in the courtroom during trial.

        The late justice Antonin Scalia, who tended to construe some rights of criminal defendants narrowly, was a real stickler regarding the face-to-face in-the-courtroom aspect of the Confrontation Clause. See, for example, his dissent in Maryland v. Craig (1990).

        • eric
          Posted February 10, 2020 at 8:47 pm | Permalink

          I’m a big supporter of due process protections for the accused, but honestly I think the face-to-face is a holdover that could mostly be gotten rid of without ill effect.

          In modern procedure, it’s really the cross-examination by the defenses’ legal team that is critical in ensuring the jury gets “both sides” as it relates to testimony. The accused doesn’t even get to talk directly to the witness (unless they’re representing themselves).

          About the only wrinkle I’d be concerned about is ensuring the defendant can hear the testimony and converse with their legal team while it’s going on, so that they can provide ‘adjust on the fly’ suggestions. I’m not sure how often that actually happens, but I wouldn’t want to eliminate their ability to do that.

    • Posted February 10, 2020 at 12:12 pm | Permalink

      In the UK this is often done for witnesses who are minors.

    • EdwardM
      Posted February 10, 2020 at 12:14 pm | Permalink

      Flaws, yes. Not the least of which is the direct conflict with the US Constitution’s sixth amendment.

    • Adam M.
      Posted February 10, 2020 at 2:21 pm | Permalink

      I don’t think the set of questions is static, though. The answer to one question can (and, I imagine usually does) determine the next question asked.

      Furthermore, the information obtained in a cross-examination is not just the words but the reactions: the look on someone’s face and the tone of their voice when you point out an inconsistency can help you tell the difference between a lie and a mistake.

      There’d be too much of an ability for the person answering the questions to look them all over, craft an overall narrative that avoids contradictions, leave out relevant details, and delivered the whole thing in a rehearsed tone of voice. Being limited to a prerecorded session with a list of questions would be a great disadvantage for the examining party.

  8. Posted February 10, 2020 at 12:09 pm | Permalink

    I couldn’t have said it better than you did.

  9. Randall Schenck
    Posted February 10, 2020 at 12:09 pm | Permalink

    The more recent mass molesters/rapist are a special class by themselves aren’t they. The Weinstein, Epstein, or Cosby who spent most of their adult life going after women for their own special thrills. If you have 80 or even only 35 accusers the due process seems to work, if that is what it is. These men do what they did because they could and got by with it for many years. And some multiple mass molesters get by with it and never go to court, also because of their money and other special circumstances. Due process never catches up with them. What does that say about our system of justice?

    • eric
      Posted February 10, 2020 at 8:51 pm | Permalink

      What does that say about our system of justice?

      On the glass half full side, it says “Our system still honors the concept of Blackstone’s ratio.”

      On the glass half empty side, it adds “…weeeelll, at least it does for the rich.”

  10. Pliny the in Between
    Posted February 10, 2020 at 12:12 pm | Permalink

    A few years ago I had the privilege of listening to my daughter’s constitutional debate team argue the virtues of inquisitorial vs adversarial systems of justice.

    One of the points discussed was how economic and political class affected the adversarial approach. While the USA considers itself a largely classless society our criminal justice system tends to show otherwise. Both systems claim to get at the truth but since truth largely seems to have vanished from our public institutions and political processes, having been replaced by bluster and monetary clout I sometimes wonder if we made the correct choice.

    • Posted February 10, 2020 at 12:26 pm | Permalink

      We made the right choice in attempting to have a classless society. Have not bern very successful in achieving that goal.

      • Pliny the in Between
        Posted February 10, 2020 at 12:34 pm | Permalink

        I was referring to the choice of adversarial system not the pursuit of a classless society.

        • eric
          Posted February 10, 2020 at 9:04 pm | Permalink

          I don’t think it’s our adversarial system per se that’s faulty. It’s the huge inequality of resources between it’s components. What I mean is, if a state-managed adversarial system is going to work, the state should really put as much resources into public defenders as it does prosecutors.

          An analogy: imagine the NFL decides that the salary cap for the AFC is going to be $200 million/team and the salary cap for the NFC is going to be $20 million/team. You’d have to be insane to think that’s fair, or to think that the outcome of NFC/AFC matches are not heavily skewed by the resource difference.

          • Pliny the in Between
            Posted February 11, 2020 at 1:09 pm | Permalink

            While I agree with your points, I think the overall societal effects of the adversarial system are an issue since it’s at the root of all of our public discourse. Our courts establish the mindset of America – that everything is debatable. We debate in court, we debate in politics and the legislature. We debate endlessly online. The debate mindset (winning is everything) causes people to circulate valid arguments that aren’t sound. It establishes false equivalency in the media. We debate things that aren’t debatable like issues of science. Hard truths are lost amid the rhetoric.

      • Pliny the in Between
        Posted February 10, 2020 at 12:36 pm | Permalink

        I was referring to the choice of the adversarial system not the pursuit of a classless society.

        • Posted February 10, 2020 at 1:12 pm | Permalink

          On that point I agree with you in your doubt. Our system may not be the best and could certainly be improved.

  11. Posted February 10, 2020 at 12:14 pm | Permalink

    ” Does Garber want to use the Title IX standards of “preponderance of evidence” instead? I don’t think any of us would support such a system.”

    If by “us” you mean readers of this website, then agreed. But there are other websites where the readership think that any accusation is enough to establish guilt: “believe victims!”.

    • rickflick
      Posted February 10, 2020 at 1:09 pm | Permalink

      That’s one of the things you can ding Obama about. I don’t think he misunderstood the legal objections to the proposal, since he was schooled in the Constitution. He caved to pressure.

  12. KD
    Posted February 10, 2020 at 12:18 pm | Permalink

    Oh how I pine for the glorious days of the Stalinist show trials, with executions based on tortured confessions and the prejudgments of guilt based on class identity (subsequently “corroborated” by confessions extracted by torture). Maybe we can include race-based identities for liquidation this time. The problem with right-wing terror is enemies just disappear in the night, left-wing terrors are more fun, because they pretend to have a trial before they execute people suspected of being members of the wrong group.

    It makes me want to re-read Solzhenitsyn’s Gulag Archipelago so I can understand how the ideal of Justice per American Mainstream Journalism has actually been historically actualized.

    Don’t get me wrong, I’m all for it provided that I get to be the head of the New Committee for Public Safety.

    • chrism
      Posted February 11, 2020 at 6:18 am | Permalink

      Right on, comrade! I think we have to be especially careful when society goes through one of its periodic obsessions with a particular offense. Can a Catholic priest accused of child molestation actually get a fair trial in an age when the default assumption is guilt? If half the things in this article are true then Cardinal Pell has been railroaded: https://quillette.com/2020/02/10/convictions-and-doubts-the-case-of-cardinal-pell/
      And since we have touched upon the Weinstein trial, I have to say that, despite my personal poor opinion of the man, it doesn’t have the appearance of fairness. When (not if) he is convicted, it will be upon the evidence of witnesses who have very good reasons to hate him, if their testimony is accurate, but who have no objective knowledge of the alleged offenses upon which he is charged. They are, in effect, seeking a vicarious justice by ensuring he is convicted for things about which they cannot possibly know a thing. Under normal circumstances, the defense team would already be celebrating their certain win on appeal, but in the age of #MeToo there is little chance of that. Surely the sniff test here ought to be this: imagine Weinstein is innocent – how would we know that with a trial formatted in this fashion? Even if he is as guilty as hell, we don’t want to have him convicted unfairly or for the wrong reasons; such a system will also be convicting the innocent and one day it might be you or me.

      • GBJames
        Posted February 11, 2020 at 7:59 am | Permalink

        “Can a Catholic priest accused of child molestation actually get a fair trial in an age when the default assumption is guilt?”

        You misunderstand the problem. At question has been whether a Catholic priest accused of child rape gets a trial at all.

  13. sted24
    Posted February 10, 2020 at 12:18 pm | Permalink

    “I don’t know who Cathy Young is.”

    Easy to find out. Per WikiP she comes from a Russian Jewish family who emigrated to the US in 1980 when she was 17.

    “[She] worked as a freelance journalist for a variety of publications including The New York Times, The Washington Post, The Philadelphia Inquirer, Newsday, The New Republic, The Wall Street Journal, The American Spectator, National Review, Salon, The Weekly Standard, and Reason.

    From 2000 to 2007, Young wrote a weekly op-ed column for The Boston Globe…etc”

    These days her options are likely split along Woke/Non-Woke lines. She is pretty much unacceptable to the W, I think.

    I’ve often been impressed by her tenacity in questioning the ‘received version’. Notably in her coverage of the ‘Mattress Girl’ a few years back:

    http://www.thedailybeast.com/columbia-student-i-didnt-rape-her?ref=scroll

  14. Posted February 10, 2020 at 12:22 pm | Permalink

    European countries have systems different from ours. Some if their procedures sound better than ours. We gave the constitution which limits us, it gas to be followed and is very difficult to amend. I think it should be amended in a number if ways, but obstacles to amend are pretty high, and were made high by design for a reason. I think the bar was set too hihj.

    • Posted February 10, 2020 at 12:23 pm | Permalink

      too high.

    • Ken Kukec
      Posted February 10, 2020 at 1:24 pm | Permalink

      The constitutional rights of criminal defendants are set out in the Fourth, Fifth, Sixth, and Eighth Amendments in our Bill of Rights. The clauses therein are written broadly and subject to much interpretation by the courts. They’ve proved pretty flexible over the past 230 years.

  15. Ann German
    Posted February 10, 2020 at 12:42 pm | Permalink

    I’ve practiced criminal defense since 1976 and have turned down representation of (usually) men accused of sex offenses because the winning strategy is always to demean the complaining witnesses, (usually) women. Someone else can do it. (BTW, the other winning defense strategy is to have a woman defense attorney . . . .) That said, we can never have enough due process. Juries are surprising if the advocates do their jobs well, including educating the jurors during voir dire, of their biases.

    • Posted February 10, 2020 at 2:58 pm | Permalink

      Thanks Ann.

      I believe it is good for the Atlantic to allow the article and publish comments similar to,these.

  16. Posted February 10, 2020 at 12:54 pm | Permalink

    Garber knows an awful lot about this subject. She would do well to apply her knowledge and time to preventing future Weinstein’s.

    Inculcating young teenage boys is a starting point. Teaching them form an early age not to get caught up in some kind of despot-platform of entitlement culture that makes them think that at any point in their future careers that they are justified to take advantage of employees under them, whether they be female or male.

    One simple solution is to have strong male role models explaining to young boys that it is not ok to take advantage of girls in unfair ways. Likewise have boys and girls discuss, opening, what ‘consent’ means to each of them. Consent doesn’t mean the same thing to everyone but it means something to everyone.

    • Posted February 10, 2020 at 12:57 pm | Permalink

      I’m not sure what you mean about “this subject,” but she doesn’t seem to know much about how the law is supposed to work.

      • Posted February 10, 2020 at 4:47 pm | Permalink

        I meant to say Garner has spent some time concerned with complaints against Weinstein and also the MeToo movement in general. And yes, she seems to be consciously biased against due process or just ignorant of it.

    • denise
      Posted February 10, 2020 at 6:40 pm | Permalink

      Sure, and while we’re at it, why don’t we just teach young people not to murder, rob, assault, defraud, embezzle, extort and commit arson?

      So simple. I wonder why haven’t we thought of this before.

    • KD
      Posted February 11, 2020 at 3:25 pm | Permalink

      I assume this is satire, but if not, have you noticed that ~15% scales anti-social personality disorder in public surveys. This means they have no real inner sense of right or wrong. Moreover, no one knows how to “fix” anti-socials, which is why most anti-socials with bad risk assessment skills end up in prison.

      Further, personality is heavily heritable, so there is zero reason to believe this trait is going to be socially engineered out of existence.

      Any place where you have a tightly controlled network with a gatekeeper (like Hollywood), you are going to get an anti-social and they will sexually exploit prospective stars or starlets.

      The overwhelming number of rapes are committed by a small percentage of men, and the small percentage of men who rape are overwhelmingly antisocial personality. [The exception is sometimes coordinated mass rape in wartime.] To pretend that sexual violence is some kind of feature of male gender stereotypes is not supported by evidence.

      • KD
        Posted February 11, 2020 at 3:34 pm | Permalink

        Given that antisocial personality has about a 3:1 gender skew to men, that still leaves a large swath of women who will victimize others or lie with impunity to help themselves. If the incidence of antisocial personality in females is ~4%, assuming random reporting rates then “Believe her” means approximately 1 in 25 times you may have a antisocial lying to destroy someone innocent. Of course, just as rape is overwhelmingly committed by antisocial males, I imagine false accusations of rape are overwhelmingly made by antisocial females. . . . which is why we have historically had due process.

        I am perfectly willing to concede that the overwhelming majority of accusations of rape are probably true, but we still have a duty to protect the innocent and afford them a fair trial.

  17. Jonathan Gossage
    Posted February 10, 2020 at 1:25 pm | Permalink

    One step to making due process more effective would be to restrict both the prosecution and defense from using attack language against witnesses. A rigid process of sticking to discernible facts, rather than trying to vilify witnesses would be helpful.

  18. Richard Sanderson🤴
    Posted February 10, 2020 at 1:30 pm | Permalink

    Cathy Young is a good egg.

    Defo worth a follow.

  19. drew
    Posted February 10, 2020 at 1:30 pm | Permalink

    The author spends a bunch of time basically arguing that it’s inhumane to expect the complainant (This may not be the proper term here, I wanted to say plaintiff, but in a criminal case the state is the plaintiff) to testify.

    Interesting that the person who wrote this article also wrote “You can’t have a fair trial without witnesses.”

  20. rickflick
    Posted February 10, 2020 at 1:34 pm | Permalink

    In contrast, I just watched the academy award winning film, The Favorite (highly recommended), which portrays the court of queen Anne of Great Britain (1707–14). The film undoubtedly takes liberties with historical fact. But, the women of the court are very much tougher than women seem to be in our time. Rape and abuse was pretty common and the women accepted the likelihood and simply defied being put off in their life goals. I found myself being proud that these women were gritty enough to get back on their feet and press on rather than collapse in total despair and resignation. I don’t know how much is true, but it does occur to me that through the moral progress we have made, women who testify today should be doubly applauded. It would have been much easier in those days to hold your own in court, being used to the subject and the rough language of abuse in everyday life. Today, it’s something society hardly accepts as real. Or doesn’t want to accept.

  21. Posted February 10, 2020 at 1:40 pm | Permalink

    We are becoming surrounded by knee-jerk, tit-for-tat, unskeptical, “social justice” question-begging, ad hominem, and tu quoque political-emotional blackmail. It truly is alarming.

  22. Max Blancke
    Posted February 10, 2020 at 2:20 pm | Permalink

    I think it is unfortunately trendy to attack any system that is not currently getting people what they want, and not thinking in the long term. The electoral college is an example. Some of the same people who wrote of the necessity of the process before Trump’s election wrote scathing rebukes of it after the election.

    Perhaps a strong civics education would keep people from wanting to fundamentally change the constitution every time they are unhappy about something.

    • Ken Kukec
      Posted February 10, 2020 at 3:36 pm | Permalink

      I think many people have long looked at the electoral college as an anachronism. In an era of universal suffrage and the one-person/one-vote doctrine, it is difficult to justify why some American citizens’ votes should be weighted at over three times that of others, or why the nation should choose its president by a method so different from how it chooses every other elected official, from dog-catchers to senators and governors. Plus, the way the electoral college functions now is not at all how it was envisioned to work by the constitution’s framers.

      The reason the move to abolish it has gained momentum recently is that, as of 2000, the electoral college result had not differed from the result of the popular vote in 112 years, long enough that quite a few generations of Americans had come of age without having to give its abolition much thought.

      • max blancke
        Posted February 10, 2020 at 7:17 pm | Permalink

        I did not mean to start an parallel discussion on the merits of the Electoral College. I just noted that it was one of those subjects where some people considered it essential for democracy until their candidate lost, and afterwards it became a tool of oppression. And the authors sometimes published those opposing views in the same publication, without much time passing between the publication dates.

  23. Posted February 10, 2020 at 2:34 pm | Permalink

    “What is the alternative (to due process)?”

    Well, I guess it would still be due process but perhaps someday we’ll be able to probe the brains of the accused and accusers to see whether they are being truthful under examination. This might become a very accurate way to determine guilt or innocence.

  24. eric
    Posted February 10, 2020 at 2:44 pm | Permalink

    There’s no doubt that it’s hard for a witness, particularly one who might have been raped, to face Weinstein in court and recount what happened. But that’s not a “perpetuation of harm”, it’s a way to ultimately prevent the greater harm of sexual predators like Weinstein from continuing to operate.

    It does that when it works, but that doesn’t really speak to why the process is important.

    I would say, instead, that having a witness face the defendant is a way to ultimately prevent innocent people from going to jail more often. The aim is to allow defendants to actually defend themselves against charges, and to allow the jury more complete information on the origin and source of the charges. To that end yes, it’s painful to the witness when the defendant isn’t innocent. But from the court’s perspective, that’s not the only possibility.

  25. Posted February 10, 2020 at 3:01 pm | Permalink

    I don’t think we should ask about an alternative to due process. There is none. But we can look into the definition of what constitutes due process. Due process should not require subjecting witnesses to complete character assassination . And it does not necessarily require all witnesses, even the accuser/victim to testify in open court and be subject to harsh cross examination.

    Concepts of due process, as concepts of what constitute cruel and unusual punishment, snd other concepts can snd do change over time.

    • Pliny the in Between
      Posted February 10, 2020 at 4:17 pm | Permalink

      The challenge now as always is to preserve due process in a system with a huge power gradient and a long history of differential expectation. We don’t saddle women with burkas but in US courts when a woman testifies against an abuser it is often she who’s virtue is in question. The adversarial system seems to be more about tactics and strategy than truth.

      • Posted February 10, 2020 at 4:55 pm | Permalink

        If a lawyer is defending someone who us guilty the last thing he wants is truth. The goal is to twist and misrepresent the truth as much as possible.

      • Al
        Posted February 11, 2020 at 7:30 am | Permalink

        I would strongly disagree. An accusation of sexual abuse is a very powerful thing which can, and very often does, destroy a man’s career, relationships and reputation. Some men never recover from having their house unexpectedly invaded at four in the morning by police and the subsequent years under the threat of conviction and material cost.Having one’s virtue questioned, especially if one is a genuine victim, may indeed be a harrowing experience, but consider that the accused is facing the full power of the state with it’s force of armed employees ready to take away his bodily autonomy and there is no escape.The devastating nature of the accusation and, perhaps understandable, reluctance to convict, false accusers makes it tempting for a particularly vindictive woman to use the state to punish a man.

        Contrary to the activist claim, sexual assault is regarded as a vile crime by both men and women, which is why it carries a high criminal and social penalty and that is why it is imperative that everything possible should be done to arrive at the truth. Lowering the bar for conviction is unacceptable.

        • Pliny the in Between
          Posted February 11, 2020 at 1:32 pm | Permalink

          “Having one’s virtue questioned, especially if one is a genuine victim, may indeed be a harrowing experience,”

          I think it’s a lot more than that. It’s using tactics that further victimize and traumatize to suppress the reporting of assault. It’s punishing the accuser.

          “false accusers makes it tempting for a particularly vindictive woman to use the state to punish a man.”

          What percentage of claims would fall under that possibility? Shouldn’t the presumption of innocence include an accuser as well?

          • KD
            Posted February 11, 2020 at 3:46 pm | Permalink

            Shouldn’t the presumption of innocence include an accuser as well?

            An accuser is entitled to the presumption of innocence if they are accused of a crime.

            I suppose if we had a system whereby if the jury votes up, the accused goes to prison, but if the jury votes down, the accuser goes to prison, then this kind thing makes sense. But that is not our system.

            In reality, while there may be some unpleasant cross examinations that some have had to sit through, but its nothing compared to spending a decade or more in prison and being a registered sex offender for life. Its completely asymetrical.

            Not to mention due to the (good) work of feminist activists, there are a host of restrictions across the U.S. against inquiring about a victim’s sexual history, or similar inquiries, despite the imaginations of some of the people producing copy for TV shows.

            • Pliny the in Between
              Posted February 12, 2020 at 9:57 am | Permalink

              It would be interesting to know the real statistics about false accusation vs the number of women who don’t come forth at all because of our current system.

              • KD
                Posted February 13, 2020 at 5:52 pm | Permalink

                I think Germaine Greer has some interesting ideas about dealing with sexual assault, but she is persona non grata.

                I suspect many women don’t come forward because they don’t want their rapists to be subjected to humiliation and criminal punishment, especially in acquaintance rape context, more then fear of going through a trial process.

                However, the problem trying to study “false rape allegations” is what counts as a false allegation? There is often no physical evidence, especially with delays in reporting. Even if the victim recants, did he or she really recant because it didn’t happen, or did they get paid off or intimidated into withdrawing the allegation. “Consent” is vague as hell, if one party thought there was consent and the other didn’t, is that a rape or not? It would certainly be a hard case to prove if there was some reasonable basis for the belief in consent.

                My guess is that most accusers with an account that persuades the cops and the prosecutors to take the case probably were raped and not making it up, and most of the guys on trial are probably guilty. None the less, they are entitled to due process.

  26. Torbjörn Larsson
    Posted February 10, 2020 at 3:52 pm | Permalink

    There is due process and there is honorable conduct from the defense.

    For these mass witness trials, it may be sensible to make a lump accusation instead of having each of the witnesses considered in detail. Correlation doesn’t imply causation, but if we expect causation … (But a private nude photo of an alleged sex offender might provide test of cause.)

  27. jedijan
    Posted February 10, 2020 at 9:06 pm | Permalink

    Due process it seems is the better of two evils, the only option is to ignore the crimes so the perpetuator continues to harm others. One can completely understand the fear these women had of coming forward, when facing a cashed up manipulator like Weinstein. Wonder at the number of women who felt too degraded to report his crimes.

  28. Kevin P
    Posted February 11, 2020 at 12:26 am | Permalink

    Discussion of due process always make me think of former Attorney General John Ashcroft who declared, in the aftermath of 9/11, that terrorists did not deserve due process.

    There are so many things wrong with this statement but the most obvious is that without due process how do you know who is a terrorist?

  29. g.
    Posted February 11, 2020 at 7:33 am | Permalink

    Yes, there is an attack on due process. This article reminds me of another in the NYTimes that claimed “the right” was weaponizing the first amendment. Another example is critical legal theory which posits that the law has never treated people equally so we need to treat people unequally in order to achieve justice. The ideas in these articles should trouble us all. They are insidious attempts at undermining the core legal foundations of our country.


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