Once upon a time, not too long ago, liberals positioned themselves as champions of due process and civil liberties.
“By giving suspects a chance — even one chance — to challenge the terms of their detention in court, to have a judge confirm that the government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit,” then-Sen. Barack Obama said on the Senate floor in 2006.
He was referring to suspected terrorists being held at Guantanamo Bay.
Obama’s statements back then were merely part of the long tradition of liberals carrying the mantle of due process. The liberal American Civil Liberties Union has fought for due process rights for nearly a century. William Kuntsler, a former member of the organization, is regarded as a legendary lawyer for defending notorious clients — from mobsters to terrorists — in the name of a fair judicial process.
Former Sen. Joe McCarthy, R-Wis., is still held by Democrats as a model of the worst of the worst politicians for denying due process to those accused of communism.
Many on Left and the Right agree that overcriminalization is a problem in America. From drug laws to trade laws to tax laws, the American people are at any given moment potentially subject to the whims of prosecutors and police acting on political cues. Both sides of the aisle have, in the past, worked to reduce the number of crimes for which Americans can be convicted — but no longer.
At some point, very recently, due process ceased to be a liberal cause celebre and instead became viewed as an impediment to social justice — at least when the accusation is of rape.
The Obama administration has suggested ways for colleges to adjudicate sexual assault, but doesn’t include any semblance of due process. California’s controversial “yes means yes” law — and its offspring — also neglect due process. A Senate bill aimed at combating sexual assault also ignores due process.
Why is this happening? Because activists claim due process helps the accused too much.
“[B]ecause essentially burden of proof is a defense of the perpetrator,” said Stanford University activist Elisabeth Dee.
Recently, Princeton University was condemned by the Department of Education for using the “clear and convincing evidence” standard (which means the jury must be substantially sure a crime was committed) over the government-preferred “preponderance of evidence,” which allows campus administrators to be just 50.01 percent sure a crime was committed.
Many other universities don’t provide accused students with a definition of the charges against them — or even tell them the name of their accuser. Some universities don’t allow the student to have any legal representation, or only allow a lawyer to sit in but not speak on the accused student’s behalf. Most universities don’t allow an accused student to cross examine his accuser, instead only allowing him to submit questions to the judge, who plays a role more like a prosecutor. This same judge — or prosecutor — then decides whether to actually ask those questions. And in all cases, the “jury” is made up of a small panel of students or administrators that are not bound by the law or impartially selected.
In this new environment, don’t even think about investigating an accusation of rape. Question an accusation, and you can expect to get called a “rape apologist” or be accused of perpetuating “rape culture” — as if there were anyone other than rapists who actually think that way.
“The time we spend picking apart a traumatized survivor’s narration on the hunt for discrepancies is time that should be spent punishing serial rapists,” wrote Zerlina Maxwell.
The implication is clear: Burden of proof, an impartial trial, the right to cross examination, a jury of one’s peers — none of these matter when the accusation is rape.
Whatever happened to the Bush-era Democrats who so clung to due process? It seems they’ve jumped ship and abandoned their once-cherished right.
