The first day I spent in the Early Case Assessment Bureau in the Manhattan DA’s office as a paralegal, right out of college, I learned that we charged people with crimes based almost entirely on the police officer’s statements and physical evidence recovered. I remember being completely taken aback. But, I comforted myself thinking that this was only the beginning of the process and people would go through a whole trial before being found guilty. When I realized that for the cases I was working on, non-victim misdemeanors, almost all of the defendants cases were decided at the time they were charged, I was stunned. Where was due process? What happened to “innocent until proven guilty”? What about defendant’s rights to tell their side of the story?
After the recent deluge of news reports alleging all kinds of sexual harassment and sexual assault, I have heard similar concerns being raised about due process. However, those concerns are not being raised by lefty liberals who are fighting against mass incarceration and the coercive aspects of our criminal justice system. In fact, they often seemed to be raised by people who have never expressed any concern for due process prior to this moment. As the luminous civil rights lawyer Bryan Stevenson says, “We have a criminal justice system that treats you better if you’re rich and guilty, than if you’re innocent and poor.” So, I find myself cynical about calls for due process now, when the individual will not wait in a jail cell before trial like Kalief Browder because they are unable to afford bail. I am cynical that calls for due process are coming now, when the accused will retain private counsel, rather than an overburdened public defender with little time to delve into the details of the case.
This does not mean, of course, that the concerns about due process are unfounded. However, they do seem disingenuous and selective. As a lefty liberal who has worked against mass incarceration, I have been asked by many people whether I have concerns about due process. I do. But, for survivors to avail themselves of systems that includes due process, those systems have to be capable of producing a just result.
I do not believe it is an accident that people are being held accountable through the media, rather than through HR departments, the EEOC and the criminal justice system. It is clear that survivors feel that our current systems do not adequately meet their needs. However, this is not inevitable. In a pilot program called the, “You Have Options program”, the Ashland Police Department saw a 106% increase in sexual assault reports by changing protocols to be responsive to concerns survivors stated including that they have limited options and agency in how the case would proceed. Clearly, systems can be improved to address the concerns survivors have about using them, without sacrificing due process or becoming more punitive. So, why hasn’t it happened yet?
I think the reason we haven’t improved systems, that include due process, to be more responsive is the same reason we need to say “believe women”, but not “believe carjacking victims”. We already believe carjacking victims, but we do not believe people who say they have been victims of sexual assault or sexual harassment. As a society, we understand that there is no situation where it is acceptable to forcibly remove someone from their car and take it. However it has only recently become true that there is also no situation where it is acceptable to force someone to have sex or take access to another person’s body. Marital rape only became illegal in all 50 states in the United States in 1993. Prior to that, it was not considered illegal for a spouse to rape their partner. The fact is, as a nation, we were quicker to accept that someone has the right for their car to be free from intrusion, than for their body to be free from intrusion.
The call to “believe women”, in my view, is really a call that amounts to taking accusations of sexual harassment and sexual assault seriously. It is a course correction from demeaning, belittling, and gas lighting people (of all genders) who allege they have been victims sexual harassment or assault. Our system has ways of delineating between people who steal your car when you leave the keys inside of it while running to the bank and those who violently kill you before stealing it. Similarly, it is possible to delineate between different degrees of sexual assault and punish people accordingly. This type of due process is not separate and apart from justice, but a fundamental part of it. However, it requires us to first take sexual assault and harassment seriously.
In order to take sexual assault and harassment seriously, we would have to take consent seriously. Historically, consent has entailed respecting a “no” (verbally or physically) or someone’s inability to give consent. The idea of requiring affirmative consent, or needing a “yes”, for sexual activity to be considered consensual only started becoming the law in some states, in some contexts, in 2014. Is it any wonder that we are seeing articles about how men are scared to hug women? It appears, from the tone of the article, that it has never occurred to some men that they need to ask before touching another person. This is all the more disturbing when you realize that, as a culture, we seem to understand that before borrowing someone’s car or getting in it for a ride, you need permission. We don’t think twice about asking questions like, “Hey, can I borrow your car?” or “Can I get a lift to the store?” However, it is not yet normal to ask people for permission before touching their bodies.
Of course, sexual harassment does not require touching. As Rebecca Traister brilliantly explains, the reason sexual harassment is such a potent issue in the workplace is because it’s not only about sex, but about work. There is little evidence that sexual harassment trainings, as they currently exist, are effective at preventing sexual harassment. It seems that they are effective, instead, at ensuring companies limit their potential liability. For sexual harassment in the workplace to be taken seriously, we would need to not only believe women, but also value women’s contributions to workplaces. It is notable that concerns of backlash are not that men will no longer be hired, as the main perpetrators of sexual harassment, but that women will no longer be given opportunities. It is a framing that both puts the blame on those victimized and ignores the realities of victims who are men, trans, or gender non-conforming.
Furthermore, in order to have a true conversation about due process in dealing with accusations of sexual harassment and assault, we would need to expand beyond those in white-collar professions and consider that the women most prone to workplace harassment, with the most limited access to formal recourse, are often women in low-wage professions. We would also need to contend with the fact that the reason there are more women in low-wage professions than men is because when women take over male-dominated professions pay declines. To effectively address the way harassment pushes people out of the workplace, we’d have to consider all the ways our society tells us that it is men who belong and are valued in workplaces.
In conclusion, in order to have systems with due process to deal with sexual assault and harassment, we first need to have a society that takes these allegations seriously. We need to reckon with the ways that not respecting people’s physical and sexual autonomy impacts our ability to exist in the workplace. It also requires that we not be selective in calling for due process when the rich and powerful are being held accountable, but also when the marginalized get processed through a criminal justice system that is unintentionally coercive, at best. It is possible to believe women and believe in due process, it’s just not possible to be selective about which you believe in when.
The views expressed here represent the views of the author only. They do not represent the views of any organizations, people or employers with whom the author may be affiliated.