#process | #rapeculture
Built-in doubt.
It's worth noting:
• Alleged incident.
• Six months to file.
(1) You filed; mandatory counseling.
(2) You filed; mandatory mediation.
(Still want to keep going?)
(3) Sign non-disclosure agreement.
(4) Mandatory "cooling off" period.
(Are you sure, after the mandatory counseling, mediation, and agreement to never say anything publicly, that you aren't just being petty and emotional? Are you certain you wish to proceed?)
(5) Okay, you can have an administrative hearing, and maybe a federal civil trial if you push hard enough.
Now please consider that, after meeting those prerequisites, if your claim is deemed to have merit,
Congress paid out settlements
in secret, using public money to the effect of protecting known harassers, assailants, and predators.
And if anyone ever finds out about those settlements, supporters of the harassers complain that their favored politician was
denied due process↱. What process do they want for him? He already had what passes for due process. And if we don't like that implication, well, what passes for due process
is part of the general problem. Look at the institutional doubt and disruption built into this process. And then consider a member of the House of Representatives.
Rep. Ruben Kihuen (D-NV04), facing a second allegation of sexual harassment, opted for the congressional ethics process. And then he decided to not run again. We can fret about the disruption to his career if we want, but the maneuver essentially guarantees that he will not face judicial consequence.
We should not be surprised, of course, that supporters of this or that embroiled and embattled politician make such vague appeals to due process without ever accounting for disruptions within the various processes.
Toward which end, it is easy enough to blithely say whatever about the notion that
"the process needs to be changed↗, but what does that ever mean? Because while such change might "require a national (or worldwide) discussion, with the least amount of wailing and histrionics as humanly possible", the question of due process makes a certain point about what is wrong with that.
In a
previous consideration↗ of strange postures regarding due process—
In a month that saw a leading American employer commit to ending forced arbitration for sexual harassment and violence claims, Hollywood continues to ripple as word circulates of an effective blacklist against sexual harassment victims, and accused Congressmen continue to prefer that what happens in Congress stays within Congress, one of the reasons our neighbor cannot seem to address reality might well be simple ignorance.
—I also found myself recalling a discussion of Title IX, and one part relevant to the moment is the question of why universities are adjudicating sex offenses, and therein lies a question of processes that would seem to need to change. As
I noted↗ in July:
From both political and law enforcement perspectives, it is probably easier, going forward from any given moment, to encourage the universities to do better jobs than to convince the states to alter their laws specifically to take this power away from universities. Virtually any attempt to accomplish such an outcome directly through federal legislation will either fail politically or falter in the courts; the best course forward is in the federal courts vis à vis the states in an attempt to force equal protection outcomes not only on behalf of victims, but also from one victim to the next.
We might contrast that with
some manner of counterpoint↗: "have justice department deal with ALL accusation of rape (or any other CRIME for that matter) not the education department, simple as 2+2=4."
How simple do we wish to pretend it will be to alter the laws in fifty states? Fifty legislatures; fifty governors; Congress; White House.
So now we might take the moment to ask, #WhatAboutTheMen? Functionally, it is a pertinent question. What are we going to do with our screech chorus? How loudly will men screech and wail as one by one the states say, "No honor court for your alleged sex offenses, anymore, you must answer a real court"? How loudly will men screech and wail about government interfering with businesses in the discussion to formally banish mandatory arbitration? How loudly will they screech as, state by state, and in the federal government, we take away internal procedures for accused law enforcement officers?
And the whole time, who is going to screech about other crimes: What about people who shoot each other? (Well, actually, murder doesn't get pushed off into honor courts or forced arbitration.) What about women who put on lipstick while driving? (Do we really need federal regulations? Would the states really botch it up so badly?)
Similarly, who will screech if we dropped the hammer by proxy of the gavel? As I argued, the best course forward is in the
federal courts
vis à vis the
states in an attempt to force equal protection outcomes. One can easily disagree with that proposition, but we cannot pretend such judicial decisions come down without a tremendous amount of screeching, wailing, and histrionics.
We will need to remember, as we go about our societal discourse in search of better system and process for establishing justice, that this will be an arduous task even on its best days, often feeling fraught with redundancy because, well, that is how we have managed to build this mess; eventually, the screeching and wailing and histrionics will, themselves, become subject to complaint as example of why we need to abandon, divert, or diminish that discourse. That we must guard against that element is at least as predictable as the idea that sexual violence will occur. The establishment of justice is anything
but simple.
____________________
Notes:
Gibbons, Laura. "John Conyers deserves due process in sexual harassment claims, Detroit leaders say". MLive. 4 December 2017. MLive.com. 25 January 2018. http://bit.ly/2FgydnR
Velshi, Ali and Stephanie Ruhle. "Rep. Speier is fighting sexual harassment on the Hill". Velshi & Ruhle. 18 January 2018. msnbc.com. 25 January 2018. http://on.msnbc.com/2DOvQcE
