Obscene Injustice Masquerading As Justice
The right to due process -- to fair and impartial treatment by the justice system -- is a vital, fundamental right and one of our bedrock values in this country. It has been, anyway.
From Wikipedia:
Procedural due process is a legal doctrine in the United States that requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process requires at least for the government to afford the person notice, an opportunity to be heard, and a decision made by a neutral decisionmaker. Procedural due process is required by the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
There's more:
The article "Some Kind of Hearing" written by Judge Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority." The rights, which apply equally to civil due process and criminal due process, are the following:1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. The opportunity to present reasons for the proposed action not to be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know the opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based only on the evidence presented.
8. Opportunity to be represented by counsel.
9. A requirement that the tribunal prepare a record of the evidence presented.
10. A requirement that the tribunal prepare written findings of fact and the reasons for its decision.
Considering all of that, consider this, by Wendy McElroy, on "trauma-informed" "justice":
Trauma-informed justice--sometimes called "victim-centered" justice--involves an interview methodology in which the police prioritize empathy for an accuser who is automatically considered to be a victim. Rooted in trauma-informed feminist therapy of the 1960s, the methodology is especially favored for allegations of sexual abuse, such as domestic violence, where the accusers who come forward are overwhelmingly female. The methodology was refined by Russell Strand, U.S. Military Police School, who offered the Forensic Experiential Trauma Interview (FETI) as a way to question presumed victims without making them relive an assault.According to trauma-informed trainers, the police should conduct investigations according to three broad principles.
The accuser is automatically assumed to be a victim even before any verification process occurs; the accused is automatically assumed to be guilty based on nothing more than an allegation.
This dynamic reflects a core belief of the #Metoo movement: "Believe All Women." The leading proponent of the trauma-informed approach is the End Violence Against Women International (EVAWI) group which argues that "believing" accusers "is the starting point for a fair and thorough investigation." If EVAWI is taken literally, however, then further investigation seems to be unnecessary. An accusation is proof of guilt is grounds for conviction. Why investigate?
Contradictions, memory gaps, and inconsistencies in an accuser's testimony are symptoms of deep trauma and should not be seen as disprobative.
A much-quoted guide to trauma-informed justice states, "Trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them or to fill gaps in memory." The true flaw in the process is said to be the police department's approach which depends on what is called "peripheral information"--for example, a suspect's description and the time or place of an alleged attack. Instead, the police should focus on eliciting non-linear information from the accuser by establishing trust and interpreting her memories.
Factors that cast doubt on the allegation, such as an accuser's history of false allegations or drug use, are not to be considered.
This creates an enormous problem if the case goes to trial, of course. The Arizona Governor's Commission to Prevent Violence Against Women issued a letter to Arizona's criminal justice agencies to explain, "In cases that proceed to trial, defense counsel likely could impugn investigators and claim that alternative versions of the crime were ignored and/or errors were made during the investigation as a result of confirmation bias created by the 'belief' element of the Start By Believing campaign."
Trauma-informed advocates abandon the ethical code of conduct spelled out by the International Association of Chiefs of Police. Article 10, Presentation of Evidence states, "The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent. He shall ascertain what constitutes evidence and shall present such evidence impartially and without malice." By this standard, everyone and their testimonies are to be treated equally.
Trauma-informed justice destroys the due process upon which Western criminal justice rests. The central principle of due process: an accused is innocent until proven guilty either by a standard of "clear and convincing evidence" or "beyond a reasonable doubt." There must be proof before there is guilt and, as a matter of logic if not of justice, the accuser bears the burden of proof because she is the one making an affirmative statement. Start by Believing inverts this principle and logic, eliminating Western justice in the process.
Unfortunately, the trauma-informed approach is gaining momentum with training courses for law enforcement seeming to spring up everywhere. Most are held at universities where trauma-informed procedures have dominated Title IX investigations for the last decade; these investigations address allegations of sexual misconduct on campus and a "believe the women" ideology dominates. The spread of FETI is yet another instance of social-justice policies spilling from campuses out onto Main Street.
This is especially obscene.
A commonly stated goal of the trauma-informed approach is to secure a "successful prosecution", which refers to securing a conviction but makes no comment on whether the defendant may be innocent....The incompetence or malfeasance of individuals must be remedied but neither one is an indictment of the principles of Western justice. Turning accusations into convictions only makes prisoners of innocent people.
There are extreme costs to the spread of the "woke"-ocracy, and they are antithetical to Enlightenment values and Western freedoms.
Do we have data on whether or not it works, and whether there are more false convictions or less or the same when used?
NicoleK at January 17, 2021 10:03 PM
For what it's worth...
https://www.youtube.com/watch?v=Ju1ZFuvjzYc
Bill Maher (last May) talked about the Tara Reade accusations against Joe Biden. It gets truly relevant soon after the 2-minute mark.
What he DIDN'T mention is that -
SPOILER
- for many upper-middle-class communities, taking accusations seriously is just as anathema as the idea of "believe all women," as the anti-abuse activist Boz Tchividjian (grandson of Rev. Billy Graham) will tell you. More on that in a second...
lenona at January 17, 2021 10:14 PM
http://america.aljazeera.com/watch/shows/america-tonight/articles/2014/6/18/bob-jones-universitysexualabuse.html
Rape victims say Bob Jones University told them to repent
Former students at ‘the fortress of faith’ who reported sexual abuse say they were told they had sinned
June 18, 2014
by Claire Gordon
___________________________________
Can anyone blame any of the students for using the term "rape culture," given BJU's treatment of accusers?
In BJU's case, it seems to come down to the idea that BEING raped and being angry about it are worse crimes than being the rapist.
Be sure to click on the link about Tchividjian as well - it's near his photo.
lenona at January 17, 2021 10:43 PM
And, from a 2013 article linked above:
http://america.aljazeera.com/watch/shows/america-tonight/america-tonight-blog/2013/11/5/addressing-sexualassaultonafundamentalistchristiancampus.html
...Student-on-student sexual assault at BJU fits into a larger simmering issue of sexual abuse in the fundamentalist church, and evangelicalism more broadly. G.R.A.C.E. was founded by Boz Tchividjian, grandson of famed preacher Billy Graham, because of what he saw as serious problems in the way churches responded to abuse.
As a prosecutor in Central Florida, Tchividjian handled hundreds of sex abuse cases, and was disturbed by how many involved members of the church. "And if you saw any pastor in court in a supportive role," he told America Tonight, "nine out of 10 times, they were there to support the offender."
The assailants were often upstanding members of their religious community, he explained, and they purposely targeted the children who were the least likely to be believed: the misfits, the troublemakers.
“Often the ways institutions respond to abuse disclosures is one that first and foremost protects the institution,” Tchividjian said. “We saw that last year obviously with Penn State."...
lenona at January 17, 2021 11:06 PM
And if anyone's wondering what my point is, it's that when appalling cultures like that still exist in the 21st century - and not just at evangelical colleges - extreme backlashes can and will happen. "For every action..."
lenona at January 17, 2021 11:18 PM
And if anyone's wondering what my point is, it's that when appalling attitudes like BJU's still exist in the 21st century (keep in mind that they treated accusers as sinners even when the accused wasn't connected to BJU) - and not just at colleges, accredited or not - there are bound to be severe backlashes. "For every action..."
lenona at January 17, 2021 11:24 PM
Other crimes, such as battery, can also be traumatic for the victim. Do we also make these obscene allowances for the accusers in these cases, or is rape the only beneficiary of this nonsense?
Patrick at January 18, 2021 5:17 AM
The question is... does it work? Does this gentler question make it easier to get to the truth? Unless we have data one way or another our comments are really rather useless.
NicoleK at January 18, 2021 5:47 AM
Nicole K: The question is... does it work?
No, the question is, "Does it square with the accused's Fifth Amendment rights and grant the accused the presumption of innocence the same as anyone else accused of a crime?"
All other questions are completely irrelevant.
Patrick at January 18, 2021 6:08 AM
Too often, protection of the institution is prioritized over protecting the individual, even by otherwise good people. We've seen that with the Catholic Church, the UN peacekeeping missions, and with Penn State. To protect the institution, allegations of misconduct are swept under the rug.
Unfortunately for the would-be protectors, the truth does eventually come out and the blowback is all the harsher for the cover-up. Reputations are ruined and trust is eroded. It can take decades to restore trust in the institution, if at all.
Patrick asks a good question, too ↴
The US system of jurisprudence was founded on the principle that the accused is innocent until proven guilty. The burden of proof is on the accuser. This principle was espoused after centuries of jurisprudence that assumed guilt and required the accused to disprove the accusation - often while imprisoned, tortured, and denied access to evidence, witnesses, or legal counsel. The flimsiest of evidence was often admitted - visions, dreams, spirits, etc.
The current US system is not perfect, but a system in which the burden of proof is on the accused lends itself to accusations cast out of vindictiveness, spite, or even boredom (see Witch Trials, Salem. Are we to return to that?
Or are we preserving the "guilty until proven innocent" jurisprudence for accusations by protected classes only? Are we to criminalize a specific group of people for no reason other than their race or gender - this despite a Constitutional prohibition on bills of attainder? Article I, Section 9, Clause 3 specifically says, "No Bill of Attainder or ex post facto Law shall be passed."
We've already seen the ridiculous extremes to which the "Dear Colleague" letter one-sided jurisprudence has led on college campuses with horror tales of lives ruined by spurious charges of sexual assault easily disproven when the accused has access to the evidence; by an institution compelled to prosecute based solely on the testimony of the accuser.
Conan the Grammarian at January 18, 2021 6:16 AM
"Do we have data on whether or not it works, and whether there are more false convictions or less or the same when used?" ~NicoleK
When talking about 'whether or not it works' you do need to provide a definition. Thanks for doing so. Most people don't and assume there is a common definition. There isn't one.
As for more false convictions, yes this change definitely leads to more innocent people being convicted. Many of them obviously innocent.
Ben at January 18, 2021 8:32 AM
My definition of "does it work" is "does it get to the truth"
NicoleK at January 18, 2021 10:26 AM
Ben do you have data about how it leads to false convictions, and how the false conviction rate compares to other crimes?
NicoleK at January 18, 2021 10:26 AM
Ben do you have data about how it leads to false convictions, and how the false conviction rate compares to other crimes?
NicoleK at January 18, 2021 10:26 AM
Unless you have a handy mind reader somewhere, how would we even begin to measure this?
We have no idea how many innocent people are convicted. Nor do we know how many of the guilty go free.
But I can tell you what happens when the rule of law is not perceived as fair or equitable by the majority of the citizens. We have several historical examples.
Isab at January 18, 2021 10:42 AM
"Do you have data about how it leads to false convictions, and how the false conviction rate compares to other crimes?"
NicoleK (and Lenona), would you ask the same question about the results of lynchings? A presumption of "guilt" followed by punishment in the absence of due process is, by definition, a lynching.
So, do you agree with "Blackstone's ratio", i.e., that it is better that ten guilty go free than to punish one innocent? From my observations, when it comes to men (just as it came to Blacks at the hands of Whites in the past -- especially, as with Emmett Till, when the accuser was a White woman), feminists certainly do not agree with Blackstone.
Jay R at January 18, 2021 1:15 PM
This all assumes that women are so weak and foolish that they can't even give a proper account of what happened to them. That it is ok if they make stuff up to "make sense" of what happened. In other words, that women are six year olds.
People lie all the time. Women who feel powerless but angry will lie about assault (not talking about back alley rape here). There are more hate crime hoaxes than hate crimes. The moment of police intervention is crucial for gathering coherent facts, and to make this a sloppy love-fest for the putative victim will destroy this opportunity to get the truth.
If you want to see where the opposite of believe the victim dominates, just look at men who are raped or who are victims of partner violence. No one at all believes them. There are no shelters for battered husbands.
For a dandy example of prosecution at all costs, the Duke Lacrosse team prosecution was horrific. One of them even had time-stamped video from across town at a ATM and the prosecutor ignored it. Duke faculty (100 of them?) signed a letter presuming guilt because they were privileged white boys. Turns out the whole thing was a false accusation with a nonsense timeline and description, and the stripper who made the accusation was a year or two later accused of murder. The prosecutor was disbarred eventually.
cc at January 18, 2021 1:25 PM
NicoleK, there were several high profile examples that happened on college campuses that adopted this theory of justice over the last decade. Victim-centered justice has gotten a number of obviously innocent men kicked off of campuses. It shouldn't take much effort to look any of that up. The main excuse given when obviously innocent men were punished was that this wasn't a court of law and the unjustly punished could just go to a different school. Which clearly shows the truth wasn't the objective.
As for error rates between different crimes prosecuted under this system, I don't know of any evidence one way or the other. I doubt you would see any difference between rapes, murders, thefts, or other crimes. Many nations do use the principal components of victim-centered justice as part of their law enforcement. Those have a long history of corruption.
As for your definition of 'does it work', Isab is right. That is a largely unmeasurable definition. You almost never know exactly what the truth is.
This is why our justice system regularly asks for 'beyond a reasonable doubt'. Any requirement more than that is pretty much infeasible. A few days ago JD talked about only supporting the death penalty when there is no doubt. Well, that doesn't mean anything different than opposing the death penalty. Even in the situation where the person confesses to the crime you don't know 100% that they did it. People confess to crimes they didn't do all the time. 100% certainty isn't achievable. Or for another example take the current election. In order to protect the voters we destroy the information on how people voted. Once fraud occurs you more or less can't prove it. The evidence is gone. So no Trump can't prove beyond any doubt the election was fraudulent. And no Biden can't prove beyond any doubt that he was legitimately elected. You flat don't have the data.
Which brings us to the other point Isab was making. Since you can't know 100% what is and what is not these systems much depend for a significant extent on faith to function. You can't offer 100%. But you can say you did your best. When it no longer looks like you are doing your best or that you are intentionally fudging things people no longer work with you. At that point things tend to get violent.
Ben at January 18, 2021 1:52 PM
The example I use when discussing the probability that a not-insignificant number of women will lie about being sexually assaulted is the example of divorce and child custody proceedings. Just about everyone has known of people in these circumstances who will lie in official proceedings, and lie in the most deeply vicious of ways. Sometimes to the point of coaching their children to say that Daddy has molested them.
"Hmmmm...you know that your husband's EX routinely lies about whether he is complying with custody orders, whether he is buying his kids clothes, taking them to the doctor, whether he is feeding them when he has visitation, etc---but you also think that anytime any woman makes a complaint relating to sexual assault that it must be 100% true??"
RigelDog at January 19, 2021 12:10 PM
It is even worse than that RigelDog. Human memory is not that reliable. Especially in high stress situation. Rape victims honestly identifying the wrong person is a phenomenon very well documented. These women are being as truthful as they can be. They honestly believe the person they picked out is the guy. But they are wrong. You can show them the guy who did it as identified by DNA, video, and other evidence and they will say you have the wrong person. That is not the guy they remember. And they are being honest. It really isn't the guy they remember. Human memory just doesn't work that well in high stress situations.
Ben at January 19, 2021 7:22 PM
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