A reader writes:
On the subject of false allegations of rape, we often hear of the Duke Lacrosse team and Tawana Brawley. Far less often, we hear of Jamie Leigh Jones v KBR and Charles Bortz. That case was tried to an eleven-person federal jury in the summer of 2011. I was Bortz’ attorney. The jury refused to find -on evidence that was beyond ample – that Jamie Leigh Jones was raped. She was not raped; her claims were not true and yet only one writer on the left, Stephanie Mencimer, ever came close to figuring this out.
Post-verdict, with both sides having had their day in court, Charles was as guilty in the left’s eyes as he was when Ms. Jones first made her allegations. Neither the evidence nor the jury’s verdict mattered at all. The mystery is why the current debate isn’t a source of terror for traditional civil liberties types. The current left, including elements of the current administration (these federal mandates are recent arrivals), prizes outcome – their outcome – over all else, including guilt or innocence, fair trial or kabuki play. When someone tries to explain why due process matters, the response is vilification and dismissal. No effort is made to explain why due process does not matter or why it should be secondary or diluted or what-have-you. Rather, the Progressive Feminist Left has spoken and further discussion other than assent is not tolerated. And they’re winning.
Another makes many legal distinctions:
You write that arguments for a serious response to the problem of campus rape, including changes to the standard of proof, “echo Ezra Klein’s endorsement of expelling male students accused of rape without due process.” Emphasis mine. A quick and honest question: what is your understanding of the term “due process”?
Because the concept is not so cut and dry as you are presenting it. “Due process” does not mean “maximal procedural protections in every case.” Rather, it means that a party to a dispute should receive the procedural protection (“process”) that is “due” given the circumstances.
Civil defendants, for example, do not have the same trial rights as criminal defendants, because if she loses, the civil defendant won’t be going to jail. To borrow a term from my favorite law professor, “due process” is an “error deflection” principle. The law understands that mistakes happen. Procedural safeguards work by “deflecting” the risk of those mistakes away from the protected party.
When you talk about campus rape, then, you need to remember the stakes, and assess the due process problem accordingly. In a college disciplinary proceeding, does the accused student risk being thrown in jail? Fined? His criminal history broadcast to the world through a public trial?
No, no, and no. He’s just going to be expelled from college, to re-enroll somewhere else. His risk of error is low, relative to a criminal case. By comparison, the risk of error borne by the accuser is about the same relative to a criminal case, if not higher. Following acquittal, the victim can’t avoid a wrongly-acquitted rapist. She must go to class with him, socialize with him, and live (in most cases) within a mile of him. She’s trapped, basically. With her rapist. In her home.
When campus reformers talk about making it easier to expel accused rapists, they’re not arguing against due process. They’re just emphasizing the “due” part over the “process” part. And with good reason.