Why Due Process Doesn’t Apply: Stop Judging and Start Understanding the Constitution

, by Michael Darer, Assistant Arts Editor

I want to talk about due process.

For many, that phrase, as well as others that have over the years migrated from legal to casual discourse, has become a red flag. While it is a founding right of the American state (which, it is worth noting, often fails to remember this) and a legal doctrine designed to give voice to those who might otherwise fall prey to harsh and arbitrary justice, it has, very recently, become a tool for silence.

This is not universally the case. In most situations, due process is invoked as a means to remind overarching structures of the role they ought to play in the delivery of justice and the protection of citizens. In the space of the last year, however, it has mutated into a way to shout down public discussions of guilt, support, and responsibility. Like “freedom of speech,” it has fallen to reckless misuse in its invocation and begun to lose its meaning as an essential notion of jurisprudence and a means to ensure the rights of the marginalized as guaranteed under the 14th Amendment of the Constitution of these United States. Let me explain.

If we look at the conversation around any high profile instance of sexual or domestic violence—the accusations leveled against figures such as Woody Allen, Bryan Singer or Jian Ghomeshi—we are certain to see the wanton plea for due process, the scolding reminder that the American system thereof operates around the assumption of “innocent until proven guilty.” Even in certain campus discussions—both at Wesleyan and elsewhere—the same tone arises. When the story of Emma Sulkowicz (whose powerful and necessary decision to carry her mattress around Columbia University until her rapist is expelled inspired the beautiful Help Carry That Weight rallies) was covered in New York Magazine, hordes of commentators expressed their disgust with the project. They claimed that it implicated an individual who had not been found guilty in a court of law and thus violated his rights as an American citizen to due process.

Those claims are utter bullshit and dangerous bullshit at that. In these conversations, it becomes clear that those invoking legal rights not only have very little understanding of America’s legal system but also are more concerned with silencing a survivor than actually participating in important discussions about how our nation treats those who are sexually victimized.

The basic problem of this rhetoric is that it fundamentally misunderstands the idea of due process. Under the United States’ Constitution (which grants, in the Fifth Amendment, that no person shall “be deprived of life, liberty, or property, without due process of law”) due process exists only in regard to the actions of the state and the judicial systems, which are arms of that same state. The mention of “life, liberty, and property” underscores this. These are rights that are ensured by the state. They can only be revoked by the state. That is why due process exists: to ensure that in those cases where the state or its agents are poised to deprive a citizen of guaranteed rights, an appropriate level of scrutiny and fairness is attended to. Due process, like freedom of speech, does not apply to the dealings of the public (or “the court of public opinion”) or private institutions.

Focusing momentarily on that first part, nowhere does the government promise a citizen that they cannot be scrutinized or judged by society. Certainly, those judgments do not hold legal precedent, and thus they do not hold the weight of legal indictment, but they are neither discouraged or disallowed. If you are accused of a crime, members of society are more than welcome to decide that, in their personal views, you are guilty. They cannot, on their own, send you to prison, but they can call you a murderer or a rapist or a thief.

Furthermore, society seems to have very little concern when the court of public opinion comes to the first or third decisions. When O.J. Simpson was accused of murder, the public resoundingly considered him guilty. During the riots in Ferguson, those same individuals who demanded that judgment not be passed against Darren Wilson without due process of law were quick to indict those who they heard looted shops or the murdered teenager who they claimed stole cigarillos (the latter claim was later proven false). These trends point to both a hypocrisy and a misunderstanding in the worship of due process in the public sphere. They also underscore the problematic discourse around sexual violence that haunts our country.

The same applies when attention turns to private institutions. You are not guaranteed a trial before you are fired from a job or expelled from a school. Private educational institutions (Wesleyan included) have students sign paperwork upon entry that explicitly makes them aware of the institution-specific judicial codes. As such, it is lunacy to claim that Wesleyan does not adhere to the standards of the national judicial system. It is not required to, and students are made aware of that upon enrollment. For public institutions the line can become blurry, but as it stands, most scrutiny and outrage has been directed at schools such as Columbia and Wesleyan. In the same way that you are not entitled to say whatever you want to whomever you want in a private institution, you are not entitled to due process in one either. Why? Because punishments from private institutions do not violate those things that due process is protecting. Wesleyan will not be sending you to jail or executing you after years of dehumanizing prison time on death row. The boss who fired you does not seize your home or assets. The scope of punishment within a private institution is nowhere near the same as that available to the state, and so the protections are not either. You are not guaranteed a private education. You are not guaranteed a job with a private company. Neither your private college nor your private job is responsible for granting or protecting (beyond codified limits) “life, liberty, and property,” and so they are not subject to the same process as the systems that do. Those are public rights. These are private institutions.

This all points to something else that is immensely important: the way in which our justice system approaches survivors of assault is abysmal, and it needs severe attendance. It is a well known fact that the statistics of those convicted of sexual violence do not make sense when held against the minuscule statistics about the rare cases in which violence has been fabricated. Our courts do not do survivors justice. Moreover, survivors are often demeaned by those to whom they report, such as the police or discouraged from reporting at all. In other rare cases, the survivor’s voice is ignored to such a degree that they are all but coerced into misidentifications by lazy officers. Time and time again, our justice system has not served those who need its protection, and it allows violent individuals to go or remain free. Where is the conversation about this?

Instead, we have hordes of moralists misunderstanding fundamentals of legal philosophy, bumbling through half-assed explanations of jury selection and the ways in which our justice system is supposed to be working. Their rhetoric isolates those in need of support and paints their requests for help and solidarity as false violations of a potentially dangerous individual’s misunderstood rights. It might be laughable if it wasn’t horrifying, but in the end all that it does is underscore the tenuous grasp we as a public have on the ways in which justice is supposed to work. More even than that, though, it instills a poorly constructed understanding of how ideas of responsibility and compassion are meant to function. It empowers the name of the privileged over the well-being of the victimized, and it reinforces the way sectors of society self-train to ignore and insult survivors of violence. Sitting at your computer screen, your job is not to be a judge. Coming upon the stories of those in your community who have fallen prey to abuse, your job is not to be the jury. Your job is to be compassionate, kind, supportive, or—failing that—quiet. You are no one’s lawyer, and this is not your courtroom. These are people’s lives. Do your research. Act accordingly.

Darer is a member of the class of 2016.

  • Greg

    I accuse you of rape. No Due Process for you. Go to campus kangaroo court n be expelled. Now go to criminal court where you are convicted, incarcerated n have to register as a sex offender for life. Remember, just like lunatic Emma Sulkowitz, no one would ever lie about rape.

    • Young men, stay out of colleges like this one. It’s clear you are hated, and presumed guilty until proven innocent because you are male.

      • Michael Darer

        K, bruh.

      • Michael Darer

        Though, your comment also should be addressed on another level. What I’m talking about is not about hating men. It’s about supporting survivors. While I absolutely hate bending to “what about men” arguments, I think you need to consider how these issues affect male survivors. Because they do. These same problems plague men who report sexual assault, albeit for different reasons.

        Wesleyan doesn’t hate men. There is nowhere in the world right now that hates men. There are places, though, that, like never before, that are starting to hold them accountable. And thank God for that.

      • I AM a survivor, and since most victims of sexual assault ARE male, it’s wrong to even frame it as a woman’s issue, although our sexist society frequently does.

        I’m sure you are sincere and are not generally a bad person, but I think you’re looking at it through a very distorted lens.

        Here’s what I read: it’s mostly about targeting men, and if a man winds up in tuition debt he can never repay, and his career aspirations are ruined, or even if a lynch mob comes after him, that’s for the greater good because it helps primarily female survivors and might once in a while help a male brave enough to accuse a female.

        We’ve gone to treating black men like they’re automatically guilty if any white woman accuses them, to treating all men like they’re guilty if any woman accuses them.

        I’m really stunned more people can’t see this. No man should willingly go to a college with this sort of environment being not just common, but never even seriously challenged.

        Peace to you, but there is no way our world views can come together on this.

      • Michael Darer

        First and most importantly, I want to extend my sympathies. I too am a survivor, and at the bottom of my comment I’ll include my email in case you want to continue this discussion in a outside of a public article.

        I’d actually be interested to see that statistic. I’ve heard it mentioned, but never actually gotten to read about it. I don’t mean that as a refutation of what you’re saying, more out of curiosity.

        I tried my best to refrain from gendered pronouns in the article for this exact reason (I’ll have to go through it again, because I may have failed). I also think it’s immensely important that you bring up racial dynamics. Intersectionality will always be a huge part of justice, and it’s not something we can overlook. I hoped to address it somewhat (while not straying from the contained topics) with the references to OJ Simpson and Ferguson. We as a nation are extremely guilty of using race as a point of guilt. It’s despicable, and undeniable. I guess for me, that deals with a number of different issues:

        1) It involves the reformation of state justice systems that do rely on due process (and rightfully so), and requires a massive overhaul in our national conversations about crime and race.

        2) It also requires conversations at the individual level on these same topics. I do not believe that the judicial systems of private institutions are perfect. Far from it. I think that we’re looking for two different types of reform. I’m of the mind that due process has never been a barrier to racial discrimination in the justice system (even if it theoretically should be), so I don’t think that applying standards of public justice to private institutions solves that. I also think that it’s important to look at the general use of due processes’s invocation, which is what I planned on addressing. I honestly don’t see it invoked for black or hispanic men and women as much as I see it invoked for white men of power and privilege. There are absolutely exceptions. My concern is less with being complacent before a problematic system of punishment, though, and more about figuring out how–from better understanding the mechanisms of punishment–we can inch towards compassion as a force for justice. You’re 100% right that society will be quick to blame individuals of color for crimes more so than accused white men. That’s why I feel like the invocation of due process is flawed. It’s technically false, and ultimately dishonest about societal intentions.

        As promised, here is my email: mdarer@wesleyan.edu. I really appreciate you having this conversation with me, whether or not we can ultimately agree.

        Kind regards.

      • We agree on some things disagree on others. A book I would strongly recommend with a huge number of sources from two very credible authors is “When Women Sexually Abuse Men: The Hidden Side of Rape, Stalking, Harassment and Sexual Assault” by Philip W. Cook and Tammy L. Hodo. Get the university library to get it for you. You can also find my interview with Mr. Cook here:

        https://www.youtube.com/watch?v=tT-MmE5kFzc

        In general, while the language is always couched in gender-neutral terms, in point of reality it’s almost always males targeted for allegations. That’s part of the book. There’s quite a bit else there too. It’s very ahead of its time.

        At this point I have a son nearing college age and I intend to advise him to avoid any college campus because of the current witch-hunt climate toward males, which I perceive as large and growing.

        I may write you but I find revisiting my past and seeing everything through a victim unproductive. I’d rather concentrate on helping people in the here and now.

        Peace.

      • Michael Darer

        Thank you so much! I will try to find it this weekend.

        I’m glad we could talk, whether or not we fully agree.

      • Thiskidisdelusional

        America has tried the no due process thing, it didn’t work out well…

        http://en.m.wikipedia.org/wiki/Salem_witch_trials

      • Michael Darer

        I think you may have misread the article. The second paragraph makes the importance of due process clear. Rather, the piece says nothing about abolition of due process, but about understanding how due process is discussed and its constitutionally defined limits in our society.

        So, yes, we should not relive the Salem Witch Trials. But that’s far from the same thing as assuming that private organizations do not have the right to fashion their own internal judicial systems.

      • florenceg

        Young man, there is still a lot you need to learn about. In their eagerness to protect women in their educational environments, the Department of Education has been spurred on by a “rape hysteria” based on flawed statistics, to impose procedural rules in college disciplinary proceedings which effectively strip the accused of any due process rights he may have and weight the scale heavily toward findings of guilt. In most cases these accused students would fare far better in the criminal courts, which is why extreme feminist activists have lobbied to create this alternative adjudicatory process, which denies the accused a presumption of innocence by effectively shifting the burden of proof, requiring him to prove he had the consent of the alleged victim. Many of these cases result,in a guilty finding and expulsion, preventing the accused from transferring to another college and obtaining a degree. Even though what they’re doing is CRIMINAL those who falsely accuse are never held responsible, the fact that has made many believe they can get away with their false accusations.

    • Michael Darer

      You do know that TWO SEPARATE REPORTS need to be filed if a matter is being brought before the school and the police, correct? It’s not like you get expelled and walk off campus into a police blockade. The burden of proof is different (for the reasons clearly specified in the article) and so there are separate proceedings. So I really don’t know what your point is. Take the strawman off your porch. Halloween was legit a week ago.

      • Greg

        Of course 2 reports. I filed them both. You’d better pray you’re never accused by a woman Michael. You will lose.

      • Michael Darer

        …You seem really really scared of being accused of rape… :(

      • Greg

        More for my Sons than me. I’ve been accused of DV, n that’s bad enough. Emma Sulkowicz, at the behest of a feminist women’s advocate, decides she’s been raped n makes an accusation. The kangaroo court, which is stacked 100% against a male, finds him not responsible. She goes to police, names n shames him, all the feminist blogs pick up story n now he has 20 pages of BS following him, when you google his name. He should drop out of school n go work in the oil fields of ND, cause nobodies gonna hire him. Could happen to you, my Sons, or I. Let’s try to prevent that.

  • It is perfectly OK to destroy a man’s life based on allegation alone. Got it.

    • Michael Darer

      Not even close to the point. But I like your hair.

      • Thank you for the compliment. *preen*

  • DavidL

    You are correct that private institutions like Wesleyan are not subject to the requirement that their disciplinary procedures comply in all respects with the constitutional standards of due process of law. However, your rhetoric (“wanton plea for due process . . . scolding reminder . . . of the assumption of innocence . . . lunacy . . . moralists misunderstanding fundamentals . . . half-assed explanations”) indicates that you are unsure that your arguments alone carry the weight you would like. Your contempt for those you argue against is unpersuasive.

    The procedures in the Wesleyan Student Handbook are lengthly but vague. However, it is clear that they require basic fairness. Indeed, lack of fairness is a specific ground for appeal of a decision. Also, Wesleyan is subject to Title IX, which requires that there be no discrimination on the basis of gender. This includes no discrimination in hearings and punishment. Numerous cases are now being brought under Title IX successfully showing that university procedures in sexual assault cases have been biased against males. These are not (to use your word) half-assed claims. They are a serious inquiry into whether the procedures of our universities are non-discriminatory.

    Since Wesleyan’s procedures are not visibly applied (all proceedings being closed to the public), it’s hard to evaluate how fair they are. The hidden nature of the process is compounded by the various (quite possibly illegal) confidentiality requirements. However, even without seeing individual cases, it is not to hard to conclude that where the “prosecution” is done by skilled and experienced persons, and the defendant is restricted or prohibited from availing of assistance that would level that playing field, there is a problem. That fact alone could be enough to invalidate regimes like the one in place at Wesleyan.

    Then there is the question of attitude and bias on the part of the hearing officers. In the legal system this is called “poisoning the well” which refers to attitude and biases which may taint a trier of facts ability to be impartial. If your attitude is typical of what pervades Wesleyan, that is a real danger. You seem much more interested in findings of guilt than in finding the truth in individual cases.

    There is finally the question of whether a place like Wesleyan, supposedly dedicated to open inquiry, fairness and justice in all matters, should so easily dismiss the concept of due process of law as a guide. This does not mean turning Wesleyan procedures into clones of the judicial system. It does however require recognition of the importance and value of concepts like the presumption of innocence and fair and level playing fields in hearings. These are core values of our society and Wesleyan does not distinguish itself if it chooses to ignore them.

    Finally I think you need to brush up on free speech as well. The job of the citizen of the community is not “to be . . . supportive [to conform] or–failing that–quiet.” That is just the opposite of what a member of the Wesleyan Community should be.

    • Michael Darer

      I absolutely agree on the vagueness of Wesleyan’s policies, and do think they need to be elucidated and reformed, not least of which because that vagueness in the past has harmed survivors.

      I don’t think–and this could very well be a result of poor wording on my part–that taking a survivor’s word is equivalent to looking for guilt. I don’t think it’s the job of the community at large to defend someone accused of sexual assault (though I also don’t think that person is protected from the community doing so). I think that it’s of paramount importance to support survivors and one of the ways to do that is to believe their story, to have faith in them, and to not invalidate their experience by pretending that you (the general “you”) are in a position to investigate the incident. When someone comes to you to talk about suffering an assault, they are trusting you, against all odds to be there for them. Perhaps you have no legal obligation to do that, but I would argue you have a moral one. In the justice system at large, survivors of domestic and sexual assault are told that they are misremembering. They are told that maybe they instigated the incident in some way. As a student, you taking them at their word has no judicial power and so it’s ultimately not going to be some great miscarriage of justice. What it does do, however, is create a safe environment. That’s the most important thing.

      Finally, you’re absolutely right. You do not have any legal obligation to be supportive, or to refrain from victim blaming. You can be loud and blame-y to your heart’s content. Again, my poor wording may be at fault. I do think that you have a moral obligation not to run around questioning the stories of those who have suffered trauma. That’s not your job. You’re not carrying out justice by doing so. You’re just being an ass. I don’t think that the people who hear stories of sexual assault, and say, “Hey. That guy you say raped you is my friend. He’s not a rapist,” have any concern for the way in which justice is going to work. After all, they’re not even making a legitimate argument. It’s just about, once again, trying to take the conversation away from a group of people.

      Thanks for your comment.

      • DavidL

        “When someone comes to you to talk about suffering an assault, they are trusting you, against all odds to be there for them. Perhaps you have no legal obligation to do that, but I would argue you have a moral one. In the justice system at large, survivors of domestic and sexual assault are told that they are misremembering. They are told that maybe they instigated the incident in some way.”

        It is one thing to show compassion, but quite another to be credulous about every allegation. Some incidents are unambiguously assault, but many are not. They are ambiguous. Are you really doing your friend a favor by being completely uncritical of everything he or she may say? Suppose you turn the entire thing around. A man (we are talking mostly about men) is deeply distressed and believes that he is being unjustly accused of unwanted sexual contact with someone. Should you believe everything he says? Might you not be better advised to see if you can help him to examine his own conduct more closely? And if that is true, why does the same not hold true for women?

  • Bob

    Texas Tech student admits to reporting false sexual assault. Good thing Texas Tech’s administration respects due process for the accused.

    http://www.dailytoreador.com/news/student-admits-to-reporting-false-sexual-assault/article_7c12ba42-5980-11e4-97ee-001a4bcf6878.html

    • Michael Darer

      1) That student did something terrible. There’s no getting around that. False reporting damages the narratives and safety of survivors.

      2) Nowhere does this article explain Texas Tech’s judicial system. The case is being handed over to the police because the new offense (filing a false police report) is not an offense that the school can or would handle.

      3) Please please please look at statistics for false reporting. Omg please.

      4) False reporting–in the minuscule amount that it does happen–is usually discovered. As it was here. The article specifies why the report was immensely strange to begin with.

      5) As if a falsely accused person has no recourse. If this person were expelled and the report was discovered to be false, you don’t think the school would do something? And it’s not like false reports are secrets. Whenever it happens, the media gets so excited to reinforce the dangerous pre-existing narrative. It’s not like this person would walk back into a school where no one had heard about this false reporting scandal.

      Ideal? no. Reason to make it more difficult for victims of violence? Bigger no.

      • Greg

        Everything you think you know about false reporting is a feminist lie. Edward Greer, Loyola Law(LA), traces 2% rape cry false back to 2nd wave feminist/bigot, Susan Brownmiller, n her heinous book “Against Our Will.” You remember the book, right? “All men use rape as a means to keep all women in a state of fear(paraphrased) you’re a rapist, I’m a rapist, my Sons, your future Sons, we’re all rapists, to feminists.
        http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2216&context=llr

        This is reality on campus. 1 in 5? It’s a lie! Closer to 1 in 1877.
        http://communityvoices.post-gazette.com/opinion/the-radical-middle/27667–one-in-one-thousand-eight-hundred-seventy-seven

        This is a must read.

        http://www.city-journal.org/2008/18_1_campus_rape.html

        Thanks!

      • florenceg

        Defending Emma Sulkowicz and other false accusers? ? Here is a woman who didn’t have to provide the world with ONE single proof that the guy who was found NOT guilty by Columbia and the Police raped her. As long as we’re sufficiently emotional about the issue, we’re so ready to throw Due Process out the window. At the end of the day, it seems to me that Emma’s claims are riddled with nuances and questions, including her past sexual relations with the alleged assailant, her delay in asserting her complaint until she heard about other supposed rapes (that didn’t happen), her refusal to actually present her case in any court, and her selective attempt to tell her story in press-driven venues where there are few opportunities for rebuttals.
        If there’s any unfairness, it’s Emma’s to make bold statements about the “assailant”, the administration, the process, etc. without undertaking a single step to prove her statements in a court of law. The question – Why?

  • LostSailorNY

    These are people’s lives.

    But apparently some people’s lives are more important than others.

    Mr. Esmay is correct. If over-broad policies and opaque tribunals along with a presumption of guilt to protect women’s “narratives” becomes the norm, men should absolutely avoid private colleges and universities and alumni should withdraw their support. It may be within the legal prevue of private institutions to engage in censorship and star chambers, but in doing so they violate the very essence of a liberal arts education in favor of indoctrination.

    Emma Sulkowitz’s alleged “rapist” was found “not responsible” after a hearing, but since that result didn’t fit her narrative, it is apparently invalid. He must be expelled anyway because she feels he should. That is the level of “justice” that’s being supported here, which is to say no justice at all, just mob rule.

    • Michael Darer

      It’s absolutely true that Columbia found him not guilty. I think the question that needs to be asked, then, is was that the success of due process or its failure, and (on top of that) do we, as a society, actually value due process in cases of sexual assault. If you read articles about Ms. Sulkowicz, you’ll find a mass of improper conduct in the investigation of the case. That’s not due process. He wasn’t found innocent by due process. On the whole, the way in which law enforcement harasses victims of sexual assault through the reporting process ensures that due process does not prevail.

      We need to stop holding due process up as a badge of morality. It’s a fundamental aspect of jurisprudence, but it continues to fail those victimized sexually, and those who are systematically victimized on racial grounds. I would and do argue that not only do we need to stop pretending like due process is an all pervasive force for good in society–that it exists and works everywhere–but also that we need to understand our roles in communities, as individuals with the capability to provide support. Those who support Ms. Sulkowicz are not really carrying mattresses around in order to assail one individual. They are carrying them to suggest a society in which survivors are supported and systems are reformed around actual principles of justice, fairness, and compassion.

      • DavidL

        No system for the resolution of contested facts gives perfect results. The conclusions are sometimes wrong. More often than not in the legal system, the wrong conclusion is a product of either greater legal firepower by one side, or misconduct. Misconduct by prosecutors is the most pervasive problem, since prosecutors have a very large amount of power. And even where the system gets it right, quite often the losing party remains convinced it got them wrong.

        Columbia’s system found that the person Sulkowitz accused was not guilty under their procedures and standards of proof. Neither you nor I can actually know what happened, but there were some reasonable bases to be skeptical about the lady’s claims, particularly her delay and their prior intimacy. If her claims of choking and forcible anal penetration were true, it was assault, but she made it very difficult on herself by delaying the report. They did not believe her, or did not find enough reason to believe her to declare the man guilty of a heinous act.

        This is not, as you assert, an example of failure of due process. The more informal and less rigorous process of Columbia did not find him culpable. Thereafter Sulkowitz had an opportunity to have the police and public prosecutor get involved, but she did not like that she encountered skepticism and gave up cooperating. That is her choice, not a flaw in the system. (I will say she has some strange views of how she should be treated, seeming to want it all to go her way. This is a woman who has skillfully publicized herself a performance artist on this issue, and then has complained about getting too much media attention.)

        Nobody argues that “due process” or any process always produces perfect results. But process is designed to institutionalize skepticism. There is an obligation for the trier of fact to be skeptical, and people like Sulkowitz, who choose to wait for a considerable time before complaining, must accept that in a grown up’s world, that delay will induce more doubt.

        Right now there is a cadre, of which you are a part, which will never be satisfied by a not guilty finding. The irony is that this strident and unquestioning point of view is precisely what is leading many to question the fairness of the system being tested by these claims.

      • LostSailorNY

        I think the question that needs to be asked, then, is was that the success of due process or its failure, and (on top of that) do we, as a society, actually value due process in cases of sexual assault.

        First, I absolutely agree with you that victims of alleged sexual assault should be treated at all times with sympahy, respect, and compassion. But this apparent dissmissal of due process seems to give the feelings and narratives of the alleged victim extreme precedence over the rights of the alleged assailant. (Unless you are going so far to say that the accused have no rights.) You wrote to Mr. Esmay below:

        we can inch towards compassion as a force for justice….I feel like the invocation of due process is flawed. It’s technically false, and ultimately dishonest about societal intentions.

        Your emphasis on calling due process procedures “false” and “dishonest” and questioning whether there should be any due process in cases of sexual assault are troubling and problematic. Coupled with your call for “compassion as a force for justice” seem to be advocating quashing the rights of the accused and overturning the presumption of innocence. Whether in a court of law or procedings of a private institution, these are slippery and dangerous ideas.

        To answer your question: Yes, I for one absolutely value due process in all cases of misconduct or criminal charges. Moreso when the standards of evidence (preponderance) are already so low and the consequences are so high. Having your life and reputation ruined, wasting tens or even hundreds of thousands of tuition dollars (for Wesleyan $60,000 annually) may not be incarceration, but they are extremely serious. The problem you and women like Ms. Sulkowicz seem to have with due process is that you simply didn’t like the outcome, so therefore the process must be flawed. And that is a very troubling thought.

        So, I will reiterate my initial post: if this is to be the standard by which misconduct on college and university campuses is judged, I cannot honestly advocate that any man enroll or attend any such institution. Nor should any right-minded person support such an institution. Indeed, I would go further and suggest that degrees awarded by these institutions should be disregarded by society at large because if they are so willing to casually discard something so crucially fundamental as due process, one must consider what other fundamental shortcuts they are taking in their pedagogical philosophy such that the education they are providing may be actually worthless.

      • Whendidwesgetsocrazy

        I hope you understand that due process can some times end up with a result that you personally don’t like. I’m sure you would like every man accused of rape to be found guilty but unfortunately for you accused does not equal guilty to anyone with a sane view on justice.

        Due process isn’t about silencing anyone, it’s about having a fair and equal trial in the pursuit of truth. Yea sometimes people get away with crimes, the legal system isn’t perfect but there are also people on death row for crimes they didn’t do. I think most reasonable people would understand that these are failures of due process rather than a result of the process itself.

      • Cardinal

        You said this:

        “Neither your private college nor your private job is responsible for granting or protecting (beyond codified limits) “life, liberty, and property,” and so they are not subject to the same process as the systems that do. Those are public rights. These are private institutions.”

        Then this:

        “If you read articles about Ms. Sulkowicz, you’ll find a mass of improper conduct in the investigation of the case. That’s not due process. He wasn’t found innocent by due process.”

        And also this:

        “Sitting at your computer screen, your job is not to be a judge. Coming upon the stories of those in your community who have fallen prey to abuse, your job is not to be the jury. Your job is to be compassionate, kind, supportive, or—failing that—quiet. You are no one’s lawyer, and this is not your courtroom”

        That’s a lot of conflicting claims. So you say private institutions shouldn’t be expected to uphold due process, and that expecting them to would be “lunacy”. But then when Columbia made the decision that the accused at Columbia was innocent you say that he wasn’t found innocent by “due process”. Then you also say that it should be up to public opinion, and that you presume that the accused man was guilty but at the same time say that it is not on us to judge, we should be understanding and compassionate. So what if the public opinion is that Ms. Sulkowicz is misguided and putting this man through public defamation that he doesn’t deserve? Is that still valid or is it only if people disagree with you that they are being inappropriately judgmental.

        What are you getting at here? Does the accused at Columbia not deserve our compassion and empathy as well? Are we supposed to just condemn him based on the word of one person?

        As for the whole due process argument, you are noting that private institutions don’t technically need to uphold these standards (actually leaving out the part that any school receiving federal funds is influenced to stack the odds against the defendant) yet at the same time saying that the Columbia man’s innocence wasn’t sound because it wasn’t found by due process? So what exactly are you advocating? Are you saying that we need to further stack the odds against men? That the system won’t be fair until the accused is always found guilty?

        All of the due process talk aside, you seem to have a lot of dissonance going on. You seem to imply that private institutions shouldn’t have any kind of fair review of sexual assault and that the accused should just be assumed to be innocent. What I don’t understand, is what has caused you to believe that the defendant should not have any rights in this situation?

  • Alum 13

    As an alum of Wesleyan I sincerely hope you grow out of these views before graduation. The world doesn’t revolve around you and things aren’t going to always go the way you want them to. Due process, free speech and other policies we embrace to defend our rights are designed to help make sure that all people are treated fairly, both the victim of assault and the accused. A court is not going to find someone guilty just because you claim they are, just like a job isn’t going to hire you just because you tell them you’re a good candidate, we expect to have proof behind such claims – hence due process.

  • JG

    When folks say “due process is simply a restriction on the state, therefore its not a valid argument in the private sphere” they usually fancy themselves as better informed than the opposition, but in truth of fact, they are showing their ignorance.

    “Due process” did not spring from a vacuum fully formed, as a legal concept. It has moral/philosophical underpinnings, rooted in traditional notions of fundamental fairness. The phrase “due process” is often used interchangeably, in the law, with the phrase “fair process.”

    So when you suggest that arguments regarding “due process” have no place in a discussions regarding college disciplinary procedures, what you’re really saying is that procedural fairness should not be a limitation on college administrators.

    I might agree with you that its not a legal limitation per se. But it absolutely should be a moral and ethical one that students insist upon. It is kinda disappointing to see youthful idealism give way to technocratic (and factually incorrect) arguments that seek to downplay and excuse injustice.

  • Mark

    This is disgusting. Nothing else to say.

  • Alum ’14

    ….Is this for real? Wesleyan has become a parody of itself.

  • person

    Michael, your argument often seems to be confused about whether it’s talking about the “court of public opinion” or judicial hearings. Due process refers to two separate things in each case. A layperson may have a duty to accept a victim’s story. A court system–even if it’s just that of a private institution–shouldn’t share the immediate emotional reaction you display here. You also fail to bring up the (very relevant) recent petition signed by 28 Harvard law professors, including prominent feminist legal theorists, arguing for fairer processes in sexual assault cases. All in all, I would say this article, while passionate, does a disservice to the cause.

  • Kit

    Michael…it feels like, to some extent, you’re missing the argument made by due-process advocates in this situation. You make really important points about the court of public opinion, and the awful things it does to survivors, as well as outline that due process is something ensured by the state. The real due process issue is that private educational institutions like wesleyan purport to do the state’s job for it via its system of unfair, kangaroo courts. I think that due process advocates in this situation would say that wesleyan, by having students sign the document you pointed out, has stepped way over its bounds into an issue that should be dealt with exclusively by the state judicial system – accusations of sexual assault.

    Secondly, I find your definition of “life, liberty, and property” extremely restrictive. A campus/private job, a guaranteed education, and the other things you list are nowhere near the full scope of what a mishandled rape accusation can lead to (though I might call a paid-for year at wesleyan property). Life and liberty are very much affected when an individual’s future job prospects are effectively reduced to little or nothing because of an accusation hanging over their head. They are affected by the social isolation one experiences after being accused. You focus on the surprisingly material aspects of “property” without due attention to the social/psychological barriers that are put in place.

    I of course am aware that survivors on the whole experience a different, more intense hell than the falsely accused. The victim-blaming and shaming that happen on and off college campuses is as much a violation of due process for the survivors because their freedoms are also limited as a result of out-of-court actions. The point I’m trying to make is that I think you miss a big part of the due-process argument, which is that it is not trying to silence survivors, but get these trials and proceedings the hell out of institutions like wesleyan and into the real criminal justice system.

  • Embaressed Wes Alum

    As a Wes Alum, this is just really embarrassing. Campus sexual assault is clearly a problem across the country but you are literally suggesting that being not guilty is not good enough, and that if you are not guilty you don’t deserve due process to demonstrate your innocence because due process may potentially silence the alleged survivor. Stick to being the assistant arts editor, which I presume you are more qualified to report on, and follow your own advice to stay quiet about this.

  • Aaron

    I watched a very good and disturbing documentary called “Gideon’s army”. And it’s appalling how stacked the deck is against a defendant. The public defenders featured are so overworked and underpaid, and shackled with their huge college debt, that it’s almost impossible for them to do the job, and of course turnover in these jobs is huge. First of all, unless they are rich, that can’t affort the bond or bail, and can’t even get out of jail, even if they happen to be innocent. And the system has all of these mandatory minimum rules now, so faced with the risk of losing their trial, and huge, punitive sentences, or trying to win their case, so many, guilty and innocent, just have to plea out, which is a terrible, and unjust way of approaching the situation, but that’s how it is arranged now. I read a quote once that was supposed to be humorous, but is tragically true now that was like, “a jury consists of 12 men and woman who get together to decide who has the best lawyer”. Sad, but true.

  • Anon

    How ironic that this post was written by Michael Darer of all people.

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