Sunday, December 21, 2014

More on the Rights of the Accused

It’s freshman year of college and I have been handed my first campus petition. I am thrilled. This, at last, is the vindication of years of waiting out the clock at my conservative Southern high school, in the hope that one day, I would finally be around fellow radicals and malcontents at some institution of higher learning. I am ready to join any revolution going; I will put my name to anything they hand me, and probably my phone number and home address too.

I look the petition over – it’s about reforming the university’s sexual assault policy. Seems like a good cause, I think, assuming as a matter of course that if there's a sexual assault policy it needs reforming, and if there's a university administration it needs toppling or cajoling, belonging as it does to the power structure.

I nod as I look over the list of specific demands, yet my eyes stumble over one of the last of them. The petition reads something to this effect: “Under current university policy, the accused has recourse to multiple appeals, but the accuser can only bring the same disciplinary charge once.” This status quo is presented as self-evidently unjust—a brazen instance of unequal treatment.

“But that’s just ‘double jeopardy’,” I say. As in, the university is just mirroring a basic legal principle intended to protect the rights of defendants, and rightly so. I say I have a hard time agreeing with a demand to limit such an important safeguard. I am told in reply that we are not talking about a courtroom; we are talking about internal university discipline.

I can’t remember if I ended up signing it or not. I think I did. Either way though, I certainly wanted to – even over my hesitantly articulated qualms. I wanted to sign it because I wanted to be on the side of feminism; on the side of the victims of sexual assault, female and male and transgender alike. I wanted to show my hatred of sexual violence; to demonstrate that I wasn’t like the others – to absolve myself, I suppose, of whatever guilt I felt in this by virtue of being male. That’s why I wanted to sign it. The content of the demands was secondary. The failings of the current university policy were never made known to me. I’m not sure I cared what they were.

When I read stories in the news lately about universities rewriting their disciplinary codes for sexual assault to lower the evidentiary standards or broaden the definition of the charge, I can’t help but think back to that conversation. It had been my first college petition, and already I knew it had been a betrayal—however small – of my principles. I knew I had signed it, at last, not for conscientious reasons, but for basically conformist ones (even if they were not wholly unsympathetic reasons, for that). And afterwards, I couldn’t but wonder how many of the other people on the roster had signed out of equally questionable motives. Surely not all of them. My reasons may have been atypically cowardly, even. But probably a fair number.

Yet, as I say, I knew that signing that petition had been a betrayal, if modest, of my own liberalism. Liberalism insists, after all, on very strict protections for the accused, because it regards it as far worse a social injustice to punish an innocent person than to free a guilty one.

Granted, the person who had handed me the petition was right-- we were talking about a college, not a courthouse. Private institutions have, for better or worse, a great deal of discretion over deciding how, when, and whom to punish, which the rule of law in our broader society would not allow. People who favor much harsher sexual assault policies on campus and a liberal criminal justice off it are not strictly or necessarily violating the letter of their own principles.

They may, however, be violating their spirit.

Liberalism insists on an incredibly strong burden of proof to show guilt, a strict presumption of innocence, as well as such further safeguards, conceived in a spirit of mercy, as protection from double jeopardy and a statute of limitation. These are immensely exacting, painful, and morally rigorous doctrines. They ask a great deal of sacrifice from us, because they virtually guarantee that justice will not always be satisfied in every case. There will be instances in which people who have done very evil things are left free to go on and do more of the same. The men who tortured, mutilated, and killed Emmett Till—a fourteen year old black child attacked for "flirting" with a white woman in 1955 –  were not only exonerated by a jury; they also basically admitted to their actions after the fact, because they were protected by law from being tried a second time for the same atrocity. Liberalism asks us to accept even that outcome as a necessary evil – not to accept it morally, of course, but to accept it legally -- to accept that there was nothing further that the law could do, after the exoneration.

Perhaps even more rigorously and tryingly, liberalism asks further that, even after a person’s guilt as been established beyond a reasonable doubt, that we still treat that person as a human being, possessed of worth and dignity. It asks us to treat even people who commit horrible acts of violence, who torture or kill or commit hate crimes or rape, in this way.

Because of the exacting nature of these principles, not everyone in any country is ever going to be a liberal, at least not every day of the week. Writing these principles out, in fact, I am freshly amazed that our notoriously punitive society recognizes them at all in its criminal law—however often it may find ways of avoiding them in practice. (Our system has certainly found ways of skirting these demands when it is punishing nonviolent drug offenders, poor or working class defendants, people from black and Hispanic neighborhoods, etc. Our system often manages to railroad such defendants past these legal protections by a combination of terrifyingly high federal mandatory sentences and unforgiving prosecutors who use these sentences to compel plea bargains.)

In other words, there are plenty of ideological positions available apart from liberalism (just as, I should add, there are a lot of positions that are not liberal that would still agree with liberalism as it is described here). People might think, for instance, that larger social goods are sometimes worth the price of occasionally jailing innocent people. They may well decide that forcing people to live with the knowledge that someone who raped them or murdered their loved ones has gotten away with it, is ultimately a worse injustice than punishing the potentially innocent for those crimes. Not everyone is or will be a liberal.

It disturbs me greatly, however, to see people who are plainly liberals, who endorse liberal or leftist theories of justice in most cases, suddenly pressing for reduced protections for the accused, when the issue is campus sexual assault. I’ve met people who claim not to believe in “crime and punishment” models of justice at all, yet who will suddenly call for lower evidentiary standards when this is the offense under discussion. I’ve met people who consider themselves prison abolitionists or proponents of “restorative justice,” who appear not to see any irony at all in sounding conventionally punitive about this issue.

It happens that I personally still think there is some legitimate role for incarceration to play in criminal justice. Ideally, it would not be for the sake of punishment, but for protecting future victims from harm. Ideally too, rehabilitation would be treated as a real option for those who are incarcerated. We would not deny their humanity the way we do now; we would not saddle them with criminal records that act as a sort of scarlet letter on their foreheads the rest of their lives. But even in this ideal world, protecting people from violence and arbitrary deprivation of property would probably require some form of incarceration. Sexual assault is very much one of the things people need to be protected from in this way, in my view.

But establishing who is guilty of this crime is a legal matter, and has to be done with all the most robust protections for the accused in place. That liberals and leftists who generally defend these principles seem to be willing to walk them back in cases of campus sexual assault is a strange, and troubling, thing.

Many would reply to this, I suspect, by pointing to the special heinousness of the crime involved. And it is true that compared with a lot of the nonviolent drug offenses that keep our prisons overflowing, sexual assault is far, far worse. But the Left historically has made a point not just of sticking up for drug offenders, but for defending the rights of people accused of multiple homicide, or child sexual abuse, and other crimes that are surely as or more heinous than sexual assault.

So why the inconsistency of spirit? Admittedly, I can’t read anyone’s mind—I can only know my own, and that unevenly. But on that evidence alone, I suspect the inconsistency has something to do with the motives that led me to put my name on that petition as a college freshman. It has something to do with the desire to be on the right “side”; the desire to separate oneself off from the wrongdoing.

Perhaps a more sympathetic way of interpreting this impulse, is to say that the Left generally tries to take the side in a dispute that it regards as otherwise lacking in social power. In most cases, this means prisoners and defendants. On the campus, it often means abuse survivors, whose stories are not believed or treated seriously.

But calculations of power and powerlessness are always of the moment—they must be continually revised in the course of events. The bigot may control the hour, and the poet a mere instant, in the words of Langston Hughes; but even hours must end. Moreover, when a retributive moral panic begins in earnest, the “bigotry” starts to be shared across the aisles. The roles of bigot and poet can quickly be reversed.

If I say that the current debate over campus sexual assault policy bears features in common with a moral panic, it is not because I think the problem is not a real one. I think it is a real one, and I certainly believe that universities should devote more resources to preventing rape and supporting its victims.

What has troubled me though, as this story has unfolded, is that people have shown a willingness to credit even very implausible accounts – including ones which posit vast conspiracies of silence across entire academic institutions. That is warning sign. Another and more distressing one: people – at least some of them – have responded to these stories with a willingness to weaken standards of protection for the accused, to broaden definitions of sexual assault to include behavior that most of us would never think of under that heading, to raise the standard of consent to implausibly high levels, to overlook the nuances of a situation in which both parties are intoxicated, etc. (All concerns raised against Harvard's new policy, e.g.)

Stories of sexual violence on campus appeal to very deeply rooted fears and prejudices on the part of parents worried about the safety of their children, and people are responding to these (legitimate) fears with a willingness to let procedural niceties slide—because the crisis is thought to be of such vast proportions. And the crisis is talked about in this way despite the fact that rape, while still all too common on campus, is considerably less prevalent there than it is elsewhere. There has been a dangerous over-reliance on anecdote and rumor, followed by a swift rush to judgment on the basis of the latter. That’s the aspect of this that looks to me very much like a moral panic.

One hears expressed sometimes the following thought: namely, it doesn’t really matter whether a given story of sexual assault is true, because it can only be a good thing if it inspires policies that will combat rape on campus. (I’d be hard pressed to find a published quotation to this effect, I admit, but anyone’s who’s been in or near academic circles or other left-wing strongholds these last few months has probably encountered people who believe this.) And if all we were talking about were institutional changes that focused on rape prevention and survivor support, I would entirely agree with them.

But evidently we’re talking about something more than that—we’re talking about disciplinary and reputational consequences for the accused that may be life-altering, and even life-shattering. Hadn't we better be careful then about what's true and untrue?


Some of you may remember an urban legend from a while back that appeared in a lot of chain emails. Supposedly, some street gang was driving around in cars on the highway with their lights out. When friendly people on the other side of the road signaled to them to turn their headlights back on, this gang would proceed to switch directions, chase down the signalers, and kill them. It was an “initiation game” of theirs.

No actual stories of this taking place have ever been found or documented, as you might already have guessed. But suppose politicians had taken these legends seriously (who knows, maybe some did?) Suppose these stories inspired a wave of tough-on-crime legislation, followed by sensationalized news accounts accusing particular individuals of participating in the initiation murders, and positing institution-wide conspiracies to cover it up.

I don’t think the Left’s response to this would be “Well, murder is so heinous a crime, that these stories will probably have a salutary effect even if they are false. Better to crack down on murder, even if the original stories were invented.”

Something tells me instead that the Left would be in front of the people combatting the new legislation, discrediting the stories, disavowing the accusations.

I offer this hypothetical not to say it is equivalent to our current situation. Plainly, sexual assault allegations are far better substantiated than some urban legend. My point is just that the Left would in most cases be the first to insist that the truth of an accusation matters above all else; they would typically be among the first to say that the truth of a defendant’s innocence should never be subordinated to a social goal, however important.

The trial started in Boston this week of the 21-year-old boy accused of responsibility for the Boston Marathon bombing. He will likely face death for it, or spend the rest of his life in jail, without hope of release. The bombings were an incredibly heinous thing. They took two innocent people’s lives from them and were intended to kill a great many more.

But still, I say, to kill or imprison for life this 21-year-old, who is probably emotionally unsettled and psychologically afflicted in various ways, seems to me a terrible denial of his humanity. To define someone absolutely and solely by something they did at age 19, and that they will never be allowed to work off for however may decades they remain alive, is to label that person a “murderer” or “terrorist,” rather than as a person who murdered; a person who terrorized. It is only by the latter terms, though, that we should ever denote human beings; because it is only these terms that leave the possibility for later moral growth.

Of course Dzhokhar himself denied humanity in the most fundamental way possible to the people he killed – he deprived them of the only human lives they will ever have. Why should he deserve any better?

Well, he deserves it because the purpose of true justice is to be better than the crimes it combats. It is part of how justice declares its ultimate moral sovereignty over wrongdoing, by respecting the rights and dignity even of people who did not do the same to others. It is how justice wins its greatest victory over evil—by refusing to repay it in kind.

I suspect a lot of other people on the Left would agree with me in this—so far, at least. The question I have been harping on, however – excessively and obsessively so, these past few posts – is as follows:

If Dzhokhar were a 20-year-old fraternity student accused of sexual assault; or if he were a police officer accused of brutality; if he were a Southern rural white accused of a hate crime – would the Left be willing to play this same prophetic role of insisting on his humanity? Would it do so even in the face of evidence of terrible wrongdoing; even in the face of a widespread (and even sympathetic and perfectly comprehensible) will to punish?

And if not; why not? Would his deeds have been more heinous in these other cases? Would he have been less human?

These have been my questions for the Left these past several posts. I think now I have finally managed to ask them.

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