Are Calls for Due Process Just Rape Culture Propaganda?

An article in the Yale Journal of Law and the Humanities says "yes."

Are college students and professors who demand increased due process protections for students accused of sexual misconduct really just supporting rape culture on their campuses? An article published last month in the Yale Journal of Law and the Humanities last month says "yes."

In "Due Process Demands As Propaganda: The Rhetoric of Title IX Opposition," Boston-based lawyer Annaleigh E. Curtis argues that when professors and legal observers advocate for increased due process protections for students accused of sexual assault in campus investigations "such demands function as political rhetoric, specifically as a sort of propaganda."

In the piece, Curtis examines a 2014 Boston Globe op-ed, written collaboratively by 28 Harvard law professors, including Alan Dershowitz and Jeannie Suk. "As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence," the professors wrote, "we find the new sexual harassment policy inconsistent with many of the most basic principles we teach." They were responding to requirements imposed by the federal law forbidding sex discrimination by colleges and universities, Title IX, which forces colleges and universities to comply with relatively lax "preponderance of the evidence" standards for sexual assault adjudication—or else risk loss of funding.

Dershowitz and Co. worry that the university administrators overseeing adjudication, Title IX Compliance Offices, cannot be construed as impartial, and that accused students who can't afford legal help are left in the lurch. The professors also fear that since all aspects of the adjudication process are completed by the same office, appeals are typically processed through the same people who conducted the initial investigation. In comparison with the more rigorous model of the American judicial system, Harvard's process—like other schools around the country—is problematic.

Curtis, though, does not buy their arguments. She implies that the professors use clever justifications to cover more sinister beliefs: "Due process demands tend to involve a common set of elements: cursory expression of concern about the problem of harassment and assault on campus, claims by the speaker to some knowledge about the process of campus adjudications (and thus, authority to speak), and some purported procedural failings."

Curtis then goes on to employ a rather expansive definition of propaganda that might differ from the average person's understanding: "We are all familiar with the idea of propaganda, whether alarming examples from the Third Reich or the more benign stuff of anti-smoking campaigns. However, propaganda is not limited to a set of narrowly circumscribed instances of government speech…Each of us engages in propagandistic speech at some point in our lives, probably with extreme regularity."

She claims that "language and society have developed in tandem in ways that ultimately harm and exclude victims of sexual assault while also making it harder to achieve a genuinely fair process for all involved." She asserts that due process demands are rooted in a pervasive rape culture, and that they "serve to exclude victims and their advocates from having a voice in the discussion by casting them as already being in control of the process…demanding an unfair adjudication…and benefiting from the anti-male bias of Universities (as several suits brought by accused students suggest)."

Curtis is right––female victims are often treated unfairly. They're regularly dragged through the mud, depicted as asking for it or too slutty, or suspected of lying. In this context, issues with the process sometimes distract from substantive problems, and undermine the victim's ability to be taken seriously, as Curtis rightly describes. Many women fear retaliation from assailants, and have low confidence that campus assault investigations will be fair in the first place.

But these awful aspects of our culture should be addressed on their own. Haphazardly eroding the rights of the accused will swing the pendulum too far in the other direction, creating an even more severely biased process. This isn't how our legal system currently works outside of college campuses, and it's not how it should work. Advocacy for due process protections is not a form of victim-blaming propaganda—it is a core tenet of the American legal system.