Briefly, On Andrew Sullivan, Katie Roiphe, and Due Process

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Sam Wilkinson

According to a faithful reader, I'm Ordinary Times's "least thoughtful writer." So I've got that going for me, which is nice.

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103 Responses

  1. Avatar j r says:

    This, though, misunderstands both the #MeToo movement and the list’s existence. Neither exist because of a contempt for due process; they exist because due process routinely and predictably tends to fail in favor of men.

    Statements like this show me that we have a fundamentally different understanding of American history.Report

    • Avatar Sam Wilkinson in reply to j r says:

      @j-r I had been bouncing back and forth between drafts, and have updated this to put “abusive” in front of men. As in, “due process routinely and predictably tends to fail in favor of abusive men.” Do you also disagree with that idea?Report

    • Avatar zic in reply to j r says:

      So how many women have been groped, raped, or otherwise harassed? Nearly every one I’ve ever met; it’s ubiquitous.

      Now how many men are serving time for that groping, raping or harassing? Statistically, almost zero; particularly when compared with the numbers of women on the receiving end of this behavior.

      So I’d be really interested to hear just how you think due process has a different history.

      I wonder why some men are so eager to demand due process; because due process means they’re facing legal action and a potential jail sentence. Losing a job because your employer deems you unable to treat others (particularly women) with the respect due colleagues in the workplace or academia seems a better alternative; and I fully suspect that men who demand due process only do so because it has, traditionally, benefitted men and absolved them of the crimes they committed because ‘he said/she said’ without other witnesses. Calls for ‘due process’ gives shameful men opportunity to question how much she drank, what she wore, who else she’s had sexual relations with all as opportunity to prove she an inclination to be sexual, so her charges were without merit.

      It’s been a very long time since I commented here; but I want to give Sam a shoutout for the excellent writing he’s done on the topic of gender violence, I’m grateful; it’s a good antidote to the willful ignorance of other’s lived experiences; attitudes that seem to fester here in the name of diversity of opinion, and that the responses that attack Sam instead of consider what he’s saying are truly pathetic, and why I won’t participate.

      Wishing you all well.

      Good job, Sam. Thank you.Report

      • Avatar Kolohe in reply to zic says:

        welcome back zic.Report

      • Avatar Oscar Gordon in reply to zic says:

        @zic !

        I have missed you!Report

      • Avatar j r in reply to zic says:

        So I’d be really interested to hear just how you think due process has a different history.

        It’s hard for me to imagine how this could be a serious question. I could argue that implying my comment is an “attack” is exactly the sort of thing that I’m talking about.

        But yeah, I’m happy to agree to disagree. As I said above, some of us have a different understanding of American history. You’re welcome to hold onto yours.Report

        • Avatar Sam Wilkinson in reply to j r says:

          @j-r What is your understanding of American history with regard to abusive behavior?Report

          • Avatar j r in reply to Sam Wilkinson says:

            I’ve been thinking about how to say this in the least aggressive way possible and the best that I could come up with is to say that is a pretty obtuse question. I have to believe that you know what I mean. So it’s weird to try to turn it around and make it about something else instead of just dealing head on with the issue.

            If you want to criticize Sullivan and Rophie for being in insifficiently interested in stopping sexual assault or being indifferent to victims, you’ll get no complaints from me. If you want to say that they’re using due process as a cop out, that’s fine as well. But when you go so far as to try to claim that due process is itself something that has routinely benefited male perpetrators at the expense of female victims, you’re only telling half a story. There is a pronounced history of black and brown men being cast as hypersexual predators and being railroaded in cases involving alleged sexual assault. Adding the word “abusive” doesn’t change my objection to your statement.

            As @don-zeko points out below, you don’t need to attack the idea of due process. Due process is not the problem. The problem is that due process has historically not been enough to overcome white supremacy and not enough to overcome misogyny. The whole point of due process is to get focused on the merits of an individual case and not reduce every dispute to a question of identity. Making this about men v women is not the way to justice.Report

            • Avatar Sam Wilkinson in reply to j r says:

              There appears to be a substantive difference between the Due Process that you’re referring to and the due process that Sullivan and Roiphe are referring to, and there is no denying the ugly history of sexual assault’s use as a cudgel against minority populations, but it seems just as clear that the Due Process investigations of sexual assault – on the rare occasions that they do occur, and do not involve investigators insisting that victims must have done something to deserve the crime committed against them – seem to be often be done with regard to the best interest of the accused. Maybe that’s how we want our justice system to function, but that again leaves victims of abuse high and dry in the pursuit of justice.Report

              • Avatar Nevermoor in reply to Sam Wilkinson says:

                Let’s not get too far away from your (true and important) distinction between private and state action.

                I’d rather that consideration of the rights of the accused (in criminal lawsuits) be the default than that we criticize the resort to it when we really don’t like the accused. Now, if you are referring to failures to prosecute under that rubric (e.g. the utter failure to process rape kits in many jurisdictions) that’s a fair dig, but this comment seems to reach further than that in the specific context of criminal law and therefore makes me concerned.Report

              • Avatar Sam Wilkinson in reply to Nevermoor says:

                @nevermoor Depending upon the reach you’re seeing, you might be right to be concerned about my positions on this.Report

            • Avatar Jaybird in reply to j r says:

              I BELIEVE MAYELLA EWELL!

              I mean, Judas priest. Tom Robinson was found guilty in a court of law.

              What more do you freakin’ need?Report

            • Avatar veronica d in reply to j r says:

              To support @j-r ‘s point, one of the big divides in 70’s era feminism, between the mainstream “white feminist” types, and the emerging black feminists/womanists, was over the issue of “always believing women.” I hope we can all see how a group of women who had direct memory of lynching would reach a different conclusion from a collection of bi-coastal, upper-middle-class academics, whose experience largely consisted of drunk frat boys and handsy professors. (Yes, it’s more complicated. But still.)

              The point is, I think @sam-wilkinson ‘s point stands, at least with regards to gender dynamics not otherwise shaped by class and race. Add race, things change. @j-r gave an important correction.Report

        • Avatar Maribou in reply to j r says:

          @j-r FWIW, I don’t see your comments on this topic as attacks and never have. (There have been some exceptionally blatant personal attacks on Sam in the comments of other posts on this topic, by other commenters, which is what I’m choosing to believe @zic was referring to.)

          I also very much appreciate this thing you just said:
          “The problem is that due process has historically not been enough to overcome white supremacy and not enough to overcome misogyny.”
          Which is pretty much my entire issue with “justice” as done by historical courts (as in, historically up to the present day though not as bad now as it used to be), far more concisely than I would have been able to put it.Report

      • Avatar Chip Daniels in reply to zic says:

        And this is why #metoo is important, because my experience in history is similar to jr’s.

        I have never even once, had an experience with the police or legal system that wasn’t polite, professional and ended with anything but a just result.

        But I’ve also come to understand that my experience is radically different than many other people. #metoo is important in that it is women speaking in their own voices about their own experiences.

        And Mrs. Daniels has corroborated that virtually every woman has experienced some degree of harassment, pressure or unwelcome sexual advances.Report

        • Avatar Nevermoor in reply to Chip Daniels says:

          Which is why Sullivan is such a frustrating figure. Coming out, and putting the faces of people/friends/neighbors on the issue, is EXACTLY how the LGBT community gained acceptance in lots of places. MeToo is pretty obviously the same thing (or, at least, an overlapping venn diagram of things), so the fact he doesn’t see that is… let’s say telling.Report

        • Avatar Maribou in reply to Chip Daniels says:

          @chip-daniels

          And this is why #metoo is important, because my experience in history is similar to jr’s.

          I have never even once, had an experience with the police or legal system that wasn’t polite, professional and ended with anything but a just result.

          I am having an enormous amount of cognitive dissonance between these two sentences.Report

          • Avatar Chip Daniels in reply to Maribou says:

            Allow me to explain-
            I have never experienced the injustice that women and many minorities describe.

            Yet I have come to understand that my experiences are just that, my experience; women and minorities experience our justice system very differently than I do.

            This is why hearing them speak in their own voices about their lived experience is so important.Report

            • Avatar Maribou in reply to Chip Daniels says:

              @chip-daniels I took that to be the case, which is why I found

              ” my experience in history is similar to jr’s.” quite puzzling.

              He’s spoken before in these very comments about the choices he’s had to make specifically as an African-American man, in sexual situations, knowing that he’d be judged differently than white men would be in the same context.

              I don’t know about his experiences with the law, but I’ve inferred them to be somewhat different than perfect politeness from other things he’s said.Report

      • Avatar LeeEsq in reply to zic says:

        Welcome back Zic.Report

      • Avatar North in reply to zic says:

        Zic! It’s spectacularly great to see you about!Report

      • Avatar Burt Likko in reply to zic says:

        I understand your frustration, @zic; know that you’re always welcome here, whenever you wish to chime in.Report

      • Avatar Sam Wilkinson in reply to zic says:

        @zic These are very kind words. I truly wish your experience had (or would have) been different here, but comments sections are what they are, unfortunately. And even if you are here only briefly, it is so nice to have you back.Report

      • Avatar veronica d in reply to zic says:

        Hi @zic !!!!!

        *waves vigorously*Report

      • Avatar Mike Schilling in reply to zic says:

        zic! Welcome.Report

  2. Avatar LeeEsq says:

    Due process is supposed to protect the accused. The ideal of common law criminal jurisprudence is the assumption of innocence and that it is better for ten guilty people to go free than for one innocent person to be punished falsely. Reality often works differently but the common ideal is a real thing. Its an important way of preventing tyranny. One reason why the 20th century dictatorships were so fearsome was that they did not pay lip service to liberalism in their quest to achieve ideological utopia.Report

    • Avatar Sam Wilkinson in reply to LeeEsq says:

      @leeesq Ideals are great, but we should be honest about how they often have limitations, and one of them is dealing with instances of abuse. To deny women a workaround – as both Sullivan and Roiphe want to do here – is to implicitly acquiesce to the abusive behavior.Report

      • Avatar LeeEsq in reply to Sam Wilkinson says:

        The star of any criminal trial is the accused. It doesn’t matter what the crime is, it could be burglary, murder, sexual assault, or financial fraud. The issue is whether or not the accused is guilty or not guilty and whether there are mitigating circumstances when determining the punishment if found guilty. The victim’s rights movement had bad effects on the criminal justice system and American society. It helped create our current semi-police state.Report

        • Avatar Sam Wilkinson in reply to LeeEsq says:

          @leeesq Is the implication here that women have been getting too MUCH vindication from the criminal justice system? (We’ll put aside, for the moment, small d and p due process.)Report

      • Avatar Nevermoor in reply to Sam Wilkinson says:

        This is true, which is why your criticism of them is well founded, why no criminal action is (or could be) brought against anyone contributing to the list, etc.

        It does not justify a change in criminal procedures to be more hostile to the accused.Report

        • Avatar Morat20 in reply to Nevermoor says:

          There’s also the fact that “creepy” is not always “criminal” and things that are criminal are not always worth pursuing through a criminal case.

          Grabbing someone’s butt is a misdemeanor assault, I believe. Which is unlikely to go anywhere, and certainly not worth the hassle to many women. But they’d also like to go unmolested.

          Honestly, I don’t even see why Sullivan is whinging about due process when no one’s talking criminal or civil charges, or court cases, or anything other than literally people expressing their opinion about other people.Report

    • Avatar Chip Daniels in reply to LeeEsq says:

      it is better for ten guilty people to go free than for one innocent person to be punished falsely.

      Then someone might say that we have achieved that ideal, and then some.Report

      • Avatar LeeEsq in reply to Chip Daniels says:

        Carceral feminism is going to work just as well as the War on Drugs. Lots of liberals and people of color supported the War on Drugs. Drugs were seen as doing a bad things in poor communities. Going against the drug dealers was supposed to help shape those communities up and make things better for everybody. Turned out very differently.

        I wrote this before but the problem with sexual assault is that we are dealing with two very different things. You have sex assault the legally defined crime. Theoretically, sex assault the crime should be treated no differently from a legal perspective than any other crime. The person accused of sexual assault should be treated no differently than burglar. Sexual assault is more than a legally defined crime though. It has an ideological definition as a tool of oppression against women, children, and the powerless that other crimes do not. This means that there is an argument to be made that sexual assault should be treated differently from other crimes with fewer rights for the accused.

        As stated above, I think this will work out as well as the War on Drugs from a liberal perspective.Report

        • Avatar Sam Wilkinson in reply to LeeEsq says:

          Except that sexual assault is treated as being considerably less important than burglary, and with apparently considerably more rights for the accused.Report

          • Avatar Nevermoor in reply to Sam Wilkinson says:

            Depends upon where.

            For example, San Francisco has a policy of aggressive prosecution of crimes in this category. One result is that the only time I served on a jury was for an assault without battery (i.e. man makes threatening gesture at woman on the street, no physical contact or harm) where the woman’s statement was contradicted by the available witnesses, and inconsistent with the police report (though police were not present until after the critical time). It was an easy acquittal, to the point where I suspect there would have been no trial but for the policy.

            One could have interesting conversations about how to balance limits on prosecutorial discretion in this area (because you are absolutely right it has been misused too many times). If, instead, you’re saying that each case should be more tilted against the accused, though, you’ve thoroughly lost me.Report

        • Avatar Chip Daniels in reply to LeeEsq says:

          Very true and as @j-r points out above, our noble concepts of justice have a way of being transmogrified into vehicles of prejudice.

          But I think@jaybird has the right of it here where #metoo is essentially an asymmetric guerilla tactic, by those who don’t occupy the commanding heights of power.Report

          • Avatar LeeEsq in reply to Chip Daniels says:

            Jaybrid’s point is a good one. Sexual assault and sexual harassment are real issues and very tricky issues to deal with because common law presumptions about innocence and American rules on due process really do help people accused of sex crimes more than somebody on trial for grand theft auto. Its a lot easier for prosecutors to prove that a young man stole a car than that a young man raped a woman. When you add the ability of a wealthy person to hire good lawyers exasperates this.Report

            • Avatar pillsy in reply to LeeEsq says:

              I dunno about this. It seems like American police and prosecutors have a pretty good record of locking up young men for rape or sexual assault even when those young men aren’t guilty.

              It’s just that they are able to do it because those young men are viewed through the lens of racial prejudice, and on top of that don’t have the resources to actually mount a vigorous defense.

              Then a little while later someone who does have those resources, and gets acquitted or receives a slap on the wrist, often despite strong evidence of guilt, and we’re told that it’s the system working and the rights of accused have been upheld.

              Of course, for a variety of reasons, we hear a lot more about the latter case than the former, and then people conclude from what they’ve heard that due process protects the guilty, without noticing the part about protecting the innocent.

              And perhaps they’re actually getting the right impression, since the ability of due process to protect the innocent is pretty dubious.Report

              • Avatar Sam Wilkinson in reply to pillsy says:

                @pillsy If the police took rape seriously, then there wouldn’t be enormous backlogs of testable evidence, and yet, there is exists this evidence of policing’s fundamentally unserious approach to these particular crimes.Report

              • Avatar pillsy in reply to Sam Wilkinson says:

                I don’t think they take it seriously, since if they did take it seriously they’d care a hell of a lot more about only locking up the guilty. Locking up someone for a crime they didn’t commit is obviously not helpful in any way.

                Here, for all their nonfeasance in the face of that backlog of sexual assault cases, and the bending over backwards to extend the benefit of the doubt accorded to high status men regardless of strong evidence of guilt, we still wind up with quite a few innocent men in prison.

                So we’re left with a system that functions badly, but not in a way that consistently serves the interests of the guilty or the innocent. Instead, it consistently serves the interests of the powerful.

                And for all the rhetoric about what due process does in an ideal world, in our actual world it seems to provide little benefit to many, many people who have the full force of the state bearing down on them.Report

              • Avatar bookdragon in reply to pillsy says:

                I think it may be worth pointing out that the list under discussion was not aimed at naming average joes without any means of defending themselves. It was aimed specifically at men who have the money/power to get away with harassment and even outright assault because they can have the influence and resources to do so.Report

              • Avatar Maribou in reply to bookdragon says:

                @bookdragon Yep.Report

              • Avatar pillsy in reply to bookdragon says:

                When it comes to the list itself, I think the objections that Roiphe and Sullivan raised are bizarre.Report

  3. Avatar Don Zeko says:

    This may come off as nitpicking, but Due Process is a real thing that has value, so I don’t want to buy in to the corruption of the term that #metoo critics are pushing. Due process is what restricts arbitrary us of the power of the government: it’s what keeps the government from locking you up, taking your property, or depriving you of other rights and benefits without showing it’s work and exposing itself to legal challenge. It has fish all to do with whether or not a private employer keeps someone on payroll or whether or not people decide that somebody else is a scumbag they want nothing to do with.

    So what failed the victims of Nasser, Weinstein, etc. was that other people with the power to stop it didn’t take them seriously. Because these people protected abusers, they never reached the point where die process was an issue. In some cases they still haven’t. Due process doesn’t matter at all when predators never come close to the inside of a courtroom.

    This means that Sullivan and Roiphe aren’t actually demanding due process at all. They’re demanding that people keep ignoring victims and not taking women seriously, because they are more worried about reputational damage to rich and powerful men like Weinstein. If they were worried about people being fired for bad reasons they would be coming out against at-will employment, not the shitty media men list. After all, you can only lose your job from a flimsy accusation if your employer takes it seriously. Indeed, people get fired all the time for terrible reasons that leave them no recourse. But when it’s the word of a woman bringing down a powerful man, suddenly something must be done.Report

    • Avatar Burt Likko in reply to Don Zeko says:

      Right on, Brother @don-zeko .

      As I opined on Twitter some time ago, due process is like federalism. It is too often invoked by those who deploy it in the defense of what, on the merits, would be obviously indefensible. This doesn’t mean that it lacks independent and inherent value, and ought not diminish our respect for the concept. I’ve long argued (since before my association with Ordinary Times) that due process is the basic and fundamental reason that the United States of America exists in the first place.

      Punishment for crimes, consistent with the concept of due process, does require the state to produce some evidence. For some reason we seem to like the concept of victim testimony as evidence in some cases and we seem to not like it in others. Consider two statements from victims of two different crimes, one theft and one sexual assault, both made to police officers:

      “That’s the guy who took my wallet.”

      “That’s the guy who grabbed my butt.”

      We seem to take a victims at his word when he visually identifies the perpetrator of a property crime like theft. “That’s the guy who took my wallet.” There’s no other hard evidence of the crime happening, no hard evidence that the victim ever had a wallet in the first place, and if the event occurred, it’s exceedingly likely that the thief took the cash and ditched the wallet somewhere. Yet “That’s the guy who took my wallet” is enough for a police officer to arrest someone.

      Protesting that a woman saying “That’s the guy who grabbed my butt” is “not sufficient evidence” ignores the fact that her statement is, inherently, evidence in its own right, exactly as much as “That’s the guy who took my wallet.”

      Taking a property crime victim at his word, but making a sex crime victim come up with objectively-verifiable corroborating evidence, is not extending equality before the law as a practical matter. Equality before the law is also a very fundamental American value. And given that sex crime victims are overwhelmingly women, that’s a big equal protection problem for our government complying with its Constitutional mandates.

      I hope that’s a way of phrasing the issue in the parlance of the “male system” @jaybird describes infra.Report

    • Avatar veronica d in reply to Don Zeko says:

      Given the jaw flapping over “due process,” this seems an obligatory read: https://theestablishment.co/due-process-is-needed-for-sexual-harassment-accusations-but-for-whom-968e7c81e6d6

      I told her that I’d be happy to write about how the fixation on “due process” for these men was an attempt to re-center the concerns of men. How the question itself was absurd, because if there’s anything these stories show, it’s that these men in their years of open abuse were given more than just due process—but the women, many of whom had tried bringing this abuse to those in authority years before, were given no process at all. I said I’d love to write about the countless women whose careers were ended by coming forward with the abuse they faced, about the countless women whose careers were never able to get off of the ground because of abuse and gender discrimination. Due process. Women would love ANY process. They would love to even be heard.

      Report

      • Avatar Don Zeko in reply to veronica d says:

        My take is that due process has nothing to do with #metoo precisely because abusers have been so successfully shielded from even the possibility of punishmentReport

        • Absolutely an amen to this. The List was, as plainly stated by its creator, a workaround to the reality that the systems in place to prevent or at least minimize abuse had all failed completely. Sullivan and Roiphe genuinely seem to believe that these women, despite knowing of potentially risky individuals owe it to due process (for some reason) to let others remain ignorant of dangerous situations. It is such a huge ask which they have thus far refused to fully explain.Report

          • I keep coming back to how selective this fear of losing a job is. I mean we’re talking about workplace sexual harassment! An unknown, but almost certainly very large, number of women lose jobs or are driven out of industries by harassment. If you get fired for turning down your boss’s advances or for complaining to HR, it is sadly common for you to have no practical legal recourse. That’s because there are very few due process protections for employees of any kind. This concern for people like Aziz Ansari or Garrison Keillor is so obviously selective in order to make a cheap argument and defend the influential media figures that these influential media figures identify with.

            (Yes, I am fully aware that retaliation like i describe above is illegal. But when the default rule is that you can be fired for almost any reason at any time, or when job seekers don’t know what their former employer is telling their prospective new one, proving anything is very difficult. You know who has always been capable of screwing your career with malicious rumors? Your former boss)Report

            • That’s one reason I support “for cause” laws and end the presumption of “at will” employment. It might help move the needle a little bit to protect people from such harrassment.

              That said, it’s certainly no cure all. I just see it as one thing we could do that might help in some situations and that might do so just enough to justify the bad effects of such a change in policy.Report

  4. Avatar Jaybird says:

    I probably made all of the points that I’m inclined to make in the original “Briefly” comment section. I’ll restate this one because, hey.

    Well, there are public accusations of violent felonies and private ones.

    To repeat a point made every time we discuss sexual dynamics, one of the big problems with a lot of intimate interactions between two people is that there is nothing that really meets the level of legal proof after the incident. Just a he-said/she-said.

    Which then brings up the question… if a guy does something that would be felonious if it could be proven (that cannot be proven after the fact), is his victim obligated to not tell anybody in private?

    If she tells someone else in private, is she obliged to tell him about telling someone else so that the someone else can hear his side of the story too?

    This seems odd.

    Heck with that, let’s build on the above. (Disclaimer that I’m hesitant to wander into EvoPsych territory or, Atheist God help us all, essentialism.)

    Let’s call the modern legal system a Male System. This has all sorts of various traditions that were hard-won across culture. These include such things as “presumption of innocence” and stuff touched on in the Sixth Amendment like the right to face one’s accuser.

    The Male System has a handful of problems when it comes to stuff like the private felonies mentioned above. Someone grabs your butt in the breakroom… how do you prove this? If there isn’t a camera in the breakroom and there aren’t any witnesses, how could you possibly prove this? It’s a he-said/she-said. Let’s say that the person who did the grabbing has a great deal of power in the company? Look at Weinstein, again. Let’s say that he grabs your butt. Is that someone who you want to accuse in public? He can have you fired, make your life a living hell at work…

    (If you want a recent example of this, Terry Crews says that he’s been pressured to drop his sexual assault lawsuit. It would help “avoid problems”, he says he was told.)

    How do deal with how the Male System Fails? Well, there is also a somewhat Female System. The Grapevine. The Whisper Network. The Writing On The Restroom Stall. “Hey. New Person. If you find yourself in the breakroom with Bob From Accounting, watch yourself. He is a butt grabber.” Write it on the bathroom stall. “Bob from accounting grabs butts.” This Female System helps protect people that The Male System isn’t set up to deal with.

    Indeed, most of The Male System responses to this Female System is to look at it and to complain that The Male System doesn’t have the tools to deal with problems like these. “But what about due process? What about presumption of innocence! What about the right to face one’s accusers, for goodness’ sake!”

    Well, this Female System arose because The Male System doesn’t have the tools to deal with problems like these.Report

  5. Avatar Maribou says:

    @sam-wilkinson I think you and I have some very different ideas about some parts of this…. but overall we have more in common than we differ on. Particularly about calls for “due process” that really mean calls for quashing women’s efforts to protect themselves without relying on the court system that has repeatedly (not universally, but more often than not) failed to protect anybody except people at the top of whatever food chain.

    Thanks, as always, for your thoughtful and incisive writing on this topic.Report

  6. Avatar Mike Schilling says:

    Considering secretly removing a condom during sex minor is a strange blind spot for someone who’s HIV positive.Report

    • @mike-schilling He later apologized, sort of, but blamed a copy editor, in what sure as hell looked like a repeat of Roiphe blaming the factchecker for threatening to out Donegan. He insisted though that a man who removed his condom during sex, even discretely, is not in violation of any workplace standard, which Donegan accounted for. It was frankly unfathomable.Report

  7. Avatar Les Cargill says:

    Our choices rather seem to be limited to having due process or allowing something akin to … enlightened mob rule.

    I doubt we’ll be able to synthesize a third option, at least in a bounded amount of time.

    Due process is an acknowledgement that *uncertainty* is just a fact. And #MeToo is not a legal stricture, but rather a thing from which legal stricture may emerge.

    That sort of thing has a … checkered reputation.Report

    • @les-cargill What would you propose instead?Report

      • Avatar Les Cargill in reply to Sam Wilkinson says:

        I don’t know of a third course. Worse; I don’t know how one could be constructed, and am skeptical than any such construction is possible.

        But it’s pretty clear that you can found a universal self-interest in due process on (of all things) an argument shaped like The Golden Rule.Report

    • Avatar Kazzy in reply to Les Cargill says:

      No. We can let women do what white men have done forever — leverage their power for their own self-interest — or we can deny them this.Report

      • Avatar Les Cargill in reply to Kazzy says:

        If it’s all just leverage of power then as they used to say – “devil take the hindmost.” We *must* be guided by universal principles.

        If women can somehow …. construct a world in which there are very close to no false accusations, then it might be better. But I’d still rely only on a well-vetted due process.Report

        • @les-cargill How is due process to be provided when women are warning other women of men to avoid? Does the woman warning other women have to contact the man to let him explain himself or what exactly?Report

          • This is remarkably similar to the expanded notion of free speech in which it requires people not to stridently criticize people who publicly make arguments they think are awful.Report

          • Avatar Les Cargill in reply to Sam Wilkinson says:

            We’re not *even* in a place where we could start design. I apologize if I failed to communicate that said “due process” is a mythic beast.

            We are unfortunately in a span of time where neuroscience is emerging and I would start there. Then again, giving science moral authority is very uncomfortable. Almost as uncomfortable as ignoring it…

            If you follow the arguments in Sapolsky’s “Behave” to their logical conclusion, I’m not sure the existing criminal justice system can “stand in the wind that would blow” ( grossly misquoting “A Man For All Seasons” there ) .

            Eric Berne wrote books in which “games” like “Rapo” and “Let’s You And Him Fight” were identified. It’s a seemingly cynical reduction of these things to… transactions.Report

            • Avatar Don Zeko in reply to Les Cargill says:

              I just think there’s a fundamental problem here that you’re going from a version of due process that says the government has to show it’s work before it does bad things to you to one where everyone in your life must do so. I don’t understand what due process wrt the shitty media men list would even consist of.Report

    • Avatar pillsy in reply to Les Cargill says:

      You really can’t place meaningful due process constraints on individuals talking, or avoiding associating with other people in a professional or personal capacity. It’s a category error to assert that you can, one which Roiphe and Sullivan commit.Report

      • Avatar Nevermoor in reply to pillsy says:

        Right.

        A group of women writing down who they think is evil/criminal/yucky/etc. for the purpose of avoiding those people has nothing to do with due process.

        An at-will employee being fired for appearing on that list will ultimately have something to do with due process, assuming the employee challenges his termination in civil litigation.

        Someone being arrested for a crime because their name appears on the list would enjoy the full due process protections available to any criminal defendant (and, given the list, likely enjoy them more than most as those are folks who aren’t using public defenders).

        This, to me, all seems entirely above-board.Report

        • Avatar Don Zeko in reply to Nevermoor says:

          An at-will employee getting fired for being on the list still isn’t a due process issue, not is it anything new. That person’s boss can fire them for liking the Steelers, for talking about their kids too much, or for insulting the boss’s haircut. Being on the list isn’t an illegal criteria.Report

          • Avatar Nevermoor in reply to Don Zeko says:

            If they sue for wrongful termination (or, I suppose, business torts like interference with contract/defamation against the list writers) they’ll get due process.

            They might not like the outcome, because as you say at-will employment makes wrongful termination claims inherently tricky, but that’s a whole separate question.Report

          • Avatar Michael Drew in reply to Don Zeko says:

            That person’s boss can fire them for liking the Steelers

            But this is a bad thing, @don-zeko. We *could* want more process than that – and even say that it’s due the employee.

            And it’s not even true in a lot of workplaces. There is very often more process than that laid out, and, it being laid out, we are right to say that it is due (owed). It’s not a legal violation if it is denied in that case as it is with a wrongful imprisonment, but that’s not to say that it’s not process that is due. In some (many) cases, contractually.Report

            • Avatar Don Zeko in reply to Michael Drew says:

              I’m not a fan of at-will employment, but I’m really, really not a fan of keeping it for everything except sexual harassment accusationsReport

              • Avatar veronica d in reply to Don Zeko says:

                @don-zeko — Exactly. It’s telling that men care about this precisely when it gives women power and recourse.Report

              • Avatar Michael Drew in reply to Don Zeko says:

                I remain not a fan of it, including for those.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Which is to say, in general I would like more protections restored for workers from termination of any kind, and certainly from wrongful termination. More process, that is. And I would like that to apply to termination processes pursuant to sexual harassment accusations (and of course to retaliation for same!).

                But my actual point was that, even under the status quo, there are workplaces where a degree of process before termination is roughly guaranteed as terms of employment, and that it is a reasonable use of the term due process to say that due process has been denied when those processes are circumvented. Obviously you can disagree – it’s not a violation of the 5th amendment – but I think it’s an important extension of the concept. We shouldn’t *want* the minimum of process before termination to be promised (and thus be due) to workers.

                And I certainly don’t like the fact of the lack of protections for workers in general to be used to leverage against people who are accused of workplace misconduct, because it has the effect of endorsing the general status quo in terms of at-will employment if we’re at all eager to make that argument.Report

              • Avatar Don Zeko in reply to Michael Drew says:

                I don’t know the details of the employment arrangements of any prominent subjects of #metoo or the shitty media men list. Are you aware of any cases where employers violated the terms of their contracts with one of these dudes?Report

              • Avatar Michael Drew in reply to Don Zeko says:

                I’m not, not for sure in any case. But I’m still saying what I’ve said that I’m saying.Report

      • Avatar Kazzy in reply to pillsy says:

        If these men are denied due process, it will be at the hands of someone other than the women who contributed to the list.Report

        • Avatar Michael Drew in reply to Kazzy says:

          That is correct, Kazzy.

          I am in some ways that I haven’t totally clarified to myself uncomfortable with the Shitty List as well. But to the extent Sullivan and Roiphe relied on due process as one of the names for their objections to the list itself (and I don’t know that extent because I haven’t read either essay closely), they really should have thought harder about what their objections are, and what due process is, and seen how they aren’t the same.Report

      • Avatar Les Cargill in reply to pillsy says:

        I don’t believe that for a millisecond. IMO. you’ve abandoned principle in the service of only seeing power relationships. What you are prescribing is a collective exercise of power on behalf of the powerless. That could be eminently useful but it can’t trump due process.

        We don’t know what happens, in the “it takes all you can do to see what’s under your nose” sense. We must be prepared to spend resources on this. That process is due process.Report

        • @les-cargill If a principle can’t account for power relationships, or, worse, refuses to, is it a principle worth having?Report

          • Avatar Les Cargill in reply to Sam Wilkinson says:

            I’m not sure power relationships can be included in principle because the process would cost too much. It’d be too computationally complex. Consider rules against fraternization or rules against insider trading – they’ve both grown substantially in size over the last few decades.

            People aren’t equivalent but they’re on an equal footing legally. Trying to make them equivalent seems daunting. I think we conflate the two often.Report

        • Avatar pillsy in reply to Les Cargill says:

          I don’t believe that for a millisecond. IMO. you’ve abandoned principle in the service of only seeing power relationships.

          This is needlessly insulting, but it makes up for that by being completely wrong.

          Good job.Report

          • Avatar Maribou in reply to pillsy says:

            @pillsy FWIW, I think he meant it in a non-insulting way. Still there are better ways to put what I think he meant.Report

          • Avatar Les Cargill in reply to pillsy says:

            All I mean is that instead of having a schematic description for a tort/”crime”, now you need a full description of all the variables necessary to estimate power relationships. That’s a lot harder. It’s subject to salami slicing.

            “Principle” in general means something that you can unpack to show a situation conforms to expectations of a model. .You have a laundry list of things that, if true, add weight to one finding or the other.Report

        • Avatar Maribou, Moderator in reply to Les Cargill says:

          @les-cargill FWIW, rather than making a claim that someone has “abandoned principle”, which I think I know what you were getting at but which is extremely easy to interpret – probably most logical to interpret – as a direct insult, there’s a much more civil way to say something similar that I think is even more relevant to what you’re trying to argue:
          “Were I to sign on to this, I would feel that I had abandoned principle in the service of only seeing power relationships.”

          Now you’re not insulting anyone and expressing your discomfort with the idea in a way that can be addressed, but is fundamentally, unshakably, about your own experiences.

          Sorry if this is too explainy, but it seemed worth suggesting since I’d like you to have room to keep arguing your perspective on this without it becoming sidelined into personal animus.Report

          • Avatar Les Cargill in reply to Maribou, Moderator says:

            Of course there is – I’m a bit puzzled by anyone being insulted. Okay then. I mean, do I even word? 🙂

            By “principle”, I mean a rule/set of rules or heuristic that enables determination of whether a given …. situation has transpired. Trying to convert a simple thing like that into a comparison of relative power between individuals seems much more difficult and error-prone.

            As an example,. I am thinking of how insider trading regulation and how it’s taught has changed over the years. It’s gotten quite opaque and hard to manage. An offhand comment in a phone call can trip the regulations.Report

    • Avatar Oscar Gordon in reply to Les Cargill says:

      Just to reiterate what the lawyers have said, due process is not actually a factor here. These accusations are not being made in a court of law, civil or criminal.

      Public, and even more so, quasi-private, accusations of misbehavior/misconduct have been made against powerful and not-powerful people for all of human history.

      To turn your concern on it’s head, if a person near the top of a given hierarchy was to quietly accuse a subordinate of misconduct, how much due process is the subordinate afforded to defend themselves before their career is tanked because none of the managers/executives want to work with that person anymore?Report

    • Avatar Stillwater in reply to Les Cargill says:

      Our choices rather seem to be limited to having due process or allowing something akin to … enlightened mob rule.

      Not necessarily. A third way is that we arrive at a different cultural place in which women’s accusations regarding sexual harassment are taken seriously, male culture has changed such that harassing behavior is actually rare, and due process applies (as it does now) to actions which potentially violate the law. In order to get there, tho, things have to change. Your worry strikes me as applying more to the cultural journey than the destination.

      And #MeToo is not a legal stricture, but rather a thing from which legal stricture may emerge.

      My understanding of #metoo is that its *primarily* about women sharing their stories to give everyone – including women but especially men – a sense of how pervasive sexual harassment actually is in our culture. The lever isn’t resort to the law, but an appeal to decency or common-sense morality. Metoo can be successful even if no laws change.Report

      • Avatar Les Cargill in reply to Stillwater says:

        Nicely put, Stillwater.

        This particular cultural artifact probably has a home deep in the neural makeup of the human animal. Mamallian procreation isn’t hearts and flowers; it’s red in tooth and claw. We still have, essentially, the same brain structure for that. We’ve added a few things; the frontal cortex and moral disgust, mainly.

        Being pretty isolated from the aggressors who populate #MeToo stories, the whole thing really caught me by surprise. In that, the phenomenon has worked. I am fairly certain that the number of people I actually know who are sexual predators is zero and will remain zero.

        And to be brutally honest about it, I’ve had my brushes with the entertainment industry, and this phenomenon surprises me not at all. I’m mainly shocked that we *haven’t* heard about this before.

        Beyond simple awareness, I don’t hold a lot of hope for “fix the culture” things. Perhaps over the span of generations.Report

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