Dear Men, Shut Up About ‘Due Process’ Already

From sea to shining sea, on social media pages nationwide, brave men are taking up cudgels on behalf of their brothers-in-sex-and-gender, the ones whose lives are facing ruination because of this country’s #MeToo moment, as accusation after accusation of sexual harassment and assault issue forth from women who’ve previously remained silent. In each case, their defense takes an exceedingly simple form: it is to insist on ‘due process,’ to assert that every ‘accused’ has a ‘presumption to innocence,’ that they are ‘innocent until proven guilty,’ that they fear this business of identifying the men who harass and assault in impunity is all too likely to morph into that most dreaded of social epidemics: the witch hunt. Cease and desist, they say; let us wait till ‘the facts are in,’ till a ‘trial’ has taken place and ‘guilt’ has been conclusively established.

There are several–deliberate, I suspect–confusions at play here. Most prominently, this kind of response confuses the standards for a criminal conviction by the state in a court of law with the usual evidentiary standards that underwrite our usual social judgments of misbehavior. A courtroom furnishes one epistemic context; it addresses the imbalance of power that exists between the state and the accused, and puts the burden on the state to prove its point. This standard of proof is relaxed in civil cases, which only require a ‘preponderance of the evidence’ and do not require guilt to be established ‘beyond a reasonable doubt.’ Our day-to-day social encounters furnish yet other epistemic contexts; within them, we are, on a daily basis, subjected to ‘evidence’ of varying  levels of reliability, submitted by sources whom we trust to varying degrees; we act on the basis of these sorts of claims, assessing them using our socially acquired and developed skills of evidence evaluation; we often act on the basis of incomplete or only partially verified evidentiary claims; indeed, we have to, for stasis and inaction are not options more often than not. That is, we do not sit around, waiting for the standards of a criminal court to be satisfied before we act; social ends, desirable ones, have to be met.

Critical legal studies scholars have, for a long time now, identified one dishonorable ideological function that the law and its institutions–among which is legal language–play in our society: the establishment of a kind of ‘rationality’–the legal kind, which ostensibly aspires to the value-free, fact-laden-and-dependent kind of reasoning followed in the sciences–which can then be used to discredit other kinds of reasoning. The invocation of deployment of criminal law’s standards of evidence and its methodology for determining ‘guilt’ in social contexts outside of courtrooms is a good example of this kind of ideological maneuver. This invocation is particularly problematic when it is realized that courtroom deliberations themselves are anything but value-and-bias-free; determinations of guilt in courtrooms are as socially and politically riven as those that take place elsewhere; it is just that legal decisions lay claim to a presumption of having cleansed themselves of prejudice thanks to their supposed circumscription by ‘legal method.’

This particular technique of obfuscation has a long and dishonorable history–and it looks likely to continue for the established future. After all, maintaining this confusion is necessary for the maintenance of established power relations and for the continuance of bad behavior by serial offenders.