“Due process” is not magic

I already said this about “due process”!

This irrelevant bit of legalese has become a mantra among horrible people. You do not need “due process” to detest an exploiter and harasser. The state needs due process if it is going to deprive an individual of liberty or property, but neither of those were at issue here — these were women using their free speech (one of those rights that the Right loves so much, except when it is inconvenient to them) to express their assessment of the available evidence that Harvey Weinstein is a crude rapist thug, and that this issue has not been formally tried in a court of law doesn’t make it any less true. That the wealth and influence Weinstein used to do harm also shelters him from legal action does not protect him from the informed judgement of society, it just means he isn’t in jail where he belongs, stripped of his power. That would require “due process”. No one needs “due process” to shun a rapist.

Now an attorney writes an opinion piece in the Washington Post that says the same thing.

Let’s be clear: There is no due process right to not have people make jokes about you. There is no due process right to have strangers think you aren’t a rapist until you’ve been convicted. (Based on the reporting I’ve read, I believe Weinstein is a rapist. Sue me, Harvey.) Rather, due process is a constitutional guarantee that requires the government to provide certain procedures when it deprives a person of liberty or property. And the terms of that guarantee depend on what the government seeks to take away. As a general matter, when stakes are high — as in a criminal trial in which a prison sentence is one possible outcome — procedural protections are at their most robust. When the stakes are lower — involving a fine, say, or the demotion of a public employee — the process might be less rigorous. But generally speaking, the accused should get notice of the accusation and the opportunity to tell his or her side of the story, sometimes before the deprivation occurs, sometimes after.

Weinstein is not alone in thinking due process means no one can be mad at you unless a judge has donned robes. The White House has refused to comply with subpoenas for records and testimony necessary for the impeachment inquiry. Its reasoning, laid out in a memo by Pat A. Cipollone, counsel to the president, is that the impeachment investigation fails to provide the procedural protections of a criminal trial, including the opportunity for President Trump to question witnesses and review evidence. Last week, a group of Republicans stormed a closed congressional hearing to protest the House’s impeachment inquiry on the same grounds.

I am not a lawyer, and even I could figure this out. Now look around you at all the people suddenly whining about “due process” in order to short circuit any investigation at all: Weinstein, Trump, and I would also add…David Silverman. Silverman’s defenders all seem to think “due process” means we can’t draw any conclusions from reports of investigations, witness testimonials, and his own confession — you can’t know anything without a court, a team of lawyers, and a conviction, which sounds like a very strange attitude for skeptics and atheists to take, almost as if they believe that bad behavior vanishes in a puff of smoke unless there’s a court decision about it.


  1. Snarki, child of Loki says

    What can you say?

    Assholes have to spew about doo process. It’s what they doo.

  2. harryblack says

    Its a shield for terrible people to not have any social repercussions for being terrible and even when they are convicted, suddenly its about how they were wrongly convicted or they have payed their debt by going through the process of being convicted.
    They get help from people who dont want to be someone who gives a pass to terrible people but doesnt want to have any discomfort or growth, so they maintain that it would be wrong for them to have feelings or make choices until ‘due process’ has been done.

    Basically our society evolved to ignore the crimes of powerful and popular men, so a change in that means a change in how I live and consume so best to just bury our heads.

  3. says

    Its funny how they are OK with the government keeping a secret “kill list” for drone strikes. Is that ‘due process’ enough?

    If it is then “your name is on a secret list” should satisfy.

  4. Howard Brazee says

    When they do most of their complaining about the process (which process they established against Clinton), instead of the substance, it is apparent that they believe Trump is guilty.

  5. says

    I’d like to point out that the demand for “due process” applies only to wealthy white cis men. According to people who demand “due process” before you are allowed to say anything bad about some person, the same standard is not applicable to all those women who appear in front of TV screens and get trashed. Nor is it applicable to people of color, LGBTQIA people, etc.

    For example, when a woman makes a claim that she was raped, people will immediately start to publicly talk about how she must be lying, even though there has been no “due process” to determine that she did, indeed, lie about being abused.

    Or just look at examples like the Elevatorgate and all that shit that was publicly said about the women who dared to publicly complain about anything. It’s OK to trashtalk a woman without any “due process” that could determine that she really is a bad person or has done something wrong. But don’t you dare say anything bad about a wealthy white cis man.

    Another example: when I tried to obtain a hysterectomy, a transphobic doctor accused me of being insane even though there had been no “due process” that could allow him to diagnose me with any mental health problem. Treating me as if I were crazy and denying me access to halthcare without any “due process” is fine, but don’t you dare to be impolite towards a white man. Never mind all those cases where transphobes have said all sorts of shit about me even though they had no evidence whatsoever to support their accusations.

  6. says

    I’m glad someone mentioned the Central Park Five. Trump still asserts that they should have been executed despite having been exonerated (a state which he claims for himself without evidence). The perfect example of “Due process for me, screw anybody that isn’t white, cis, male and rich.”

  7. says

    This is a simple Argument From Authority thing. Only a high court stacked with conservatives can have greater authority than a privileged white man.

  8. DanDare says

    I guess it resonates with some because of fears of vigilantes. Look at Pizzagate. There is a need for some community standard of justice.
    However these guys are playing on that concern. Yet a civil process of ethics must allow people to deal reasonably with obvious bad behaviour by powerful people in their midst.

  9. says

    Well, if people are innocent until proven guilty, then accusing somebody of a crime (i.e. accusing a man of sexually assaulting a woman) mean that the accusation is de facto false and the accuser should go to jail.
    Did I get that right?

  10. Ishikiri says

    It’s another silencing tactic people use when they think they might be wrong. Like invoking free speech.

  11. says

    All of this confusion is based on a regrettable typo. What Weinstein et al are referring to is actually dude process, whereby a man of means should not only be able to demand that the entire world agree to be his safe space, but that anyone who violates said space is just some harebrained activist with a vagenda (sic).

  12. Pierce R. Butler says

    Some people just don’t spell/pronounce it right.

    Trump Chumps and their ilk greatly prefer their own long-accustomed Dupe Process.

  13. ColeYote says

    What I’ve been irritated by lately is President Shitstain insisting the impeachment proceedings are an egregious assault on due process. Like, asshole, that IS due process. Meanwhile he still has a policy of illegally detaining asylum-seekers without charge for as long as he can get away with.