When ‘Due Process’ Is Weaponized To Protect Powerful Men

Alexandra Brodsky told HuffPost about her new book "Sexual Justice," which explores sexual violence and deeply rooted misunderstandings about due process.
Illustration: Damon Dahlen/HuffPost; Photos: Getty

Shortly after any powerful man is accused of sexual assault, the calls for “due process!” and “a fair trial!” quickly follow — usually shouted by defenders and fans on sidewalks, chat forums and, of course, Twitter. It’s like clockwork.

The only way to truly prove that an alleged predator is guilty of accusations is to prosecute him in criminal court, or so the argument goes. Anything else is simply conjecture. And while some people say this with good intentions, others use the criminal legal system and the aforementioned right to due process as a way to absolve their favorite actor or singer — or even their best friend or brother — of any wrongdoing.

This debate, and deeply rooted misunderstandings about due process and how sexual violence harms its victims, is what led Alexandra Brodksy to write her new book, “Sexual Justice: Supporting Victims, Ensuring Due Process, And Resisting The Conservative Backlash.”

Brodsky, a civil rights lawyer and co-founder of anti-sexual violence organization Know Your IX, argues that the criminal legal system is not our only option when it comes to crimes of sexual violence (already, it’s not a choice for many marginalized victims.) There are other more responsive and, often, more practical ways to penalize a predator or get justice for a survivor.

“Public debate about due process in the context of sexual harm is built on this assumption that the only fair process is a criminal trial. Anything that deviates from that is going to seem like a kangaroo court,” Brodsky told HuffPost by phone earlier this month. “But I think it’s important to recognize that courts are not the only institutions that can investigate and adjudicate sexual harm. Sexual harm isn’t just a criminal matter, and recognizing that fact will really help to clarify the public debate.”

One key clarification Brodsky makes in her book is the difference between due process in the criminal system and a fair process in society.

“We have to remember both the importance of due process as a legal matter and the importance of fair process as an ethical matter,” she said. “And we need to remember the ways in which that rhetoric can be co-opted by people who are really just invested in impunity. Where, to them, any kind of consequence for sexual assault is unfair.”

“I think it’s important to recognize that courts are not the only institutions that can investigate and adjudicate sexual harm. Sexual harm isn't just a criminal matter.”

- Alexandra Brodsky

HuffPost spoke with Brodsky about her new book, why she’s arguing for more institutional intervention in cases of sexual harm, and why a fair process is good for both the accuser and the accused.

How is due process often distorted when used culturally, or outside of a courtroom, to address sexual violence? And why is it so important to make this distinction of what “due process” really is, especially in the wake of the Me Too movement?

When we have public debates about sexual harm that use legal terminology like “due process,” we’re not just fighting about the law. I sometimes have this response in my head like, well, it doesn’t make sense to talk about due process in this context because we’re talking about, say, a private employer.

This came up a lot around the fall of 2017 with the Weinstein allegations and the surge of Me Too. In so many of these instances, due process didn’t apply at all because the government wasn’t the one doing the firing.

As a legal matter, due process is the standard by which the rights are guaranteed to someone before the government takes away something like their freedom or their property, or for a public employee, their job. It’s the protections against government deprivation.

But what I had to remind myself as an advocate is that we’re really talking about ethics. We’re using this legal terminology to express ethical commitments to fairness to one another, and I think that’s really valuable. As with any kind of allegation, someone accused of sexual harm should have the opportunity to tell their side of the story, to understand the allegation and have the chance to defend themselves.

We’ve definitely seen powerful men call for due process — either in earnest or as a way to cast doubt on any allegation that hasn’t been substantiated in a criminal court.

In your book, you write that a study from the National Center for Victims of Crime found that a significant number of men, but not women, believed that the only fair way to handle a sexual allegation is a full criminal prosecution. Why do you think that is?

People of all genders hurt people of all genders. But it’s also true that women are more likely to be sexually harassed than men, and I’m guessing more likely to hear directly from friends and loved ones who have been sexually harassed. It would be intuitive to me that more women would have a richer understanding of the harms of sexual violence and the long-term effects.

Women are also more likely to have been in that situation at school or at work where they needed some kind of immediate remedy. A lot of people who don’t know the ways in which sexual harm is a part of their community, they really have a “Law & Order SVU” vision of what sexual assault looks like and how it’s handled.

You discuss in one chapter how prosecutors’ risk-aversion approach to sexual assault cases often becomes a “self-fulfilling prophecy” — usually reiterating rape myths by only pursuing those cases they believe they can win in court. Because of this, you write, the “criminal legal system does not deserve the public’s collective faith.”

What do you say to people who believe that the criminal legal system is broken when it comes to trying to adjudicate these crimes?

I have struggled a lot personally with this question, and my views have changed in every possible way over time. The only thing of which I’m truly sure is, even if the criminal legal system’s approach to sexual assault was vastly improved, it would still not be able to provide survivors all that they need.

Even if many of the problems we see in prosecution today were fixed, the criminal legal system is never going to be able to get a survivor switched out of a shift that she shares with a harasser at work. It’s never going to be able to get a survivor an extension on a paper a week after he’s assaulted. We’re always going to need to call on other institutions and communities to provide those kinds of remedies.

How do you believe the addition of institutional accountability and processes in the face of sexual harm can repair or make up for the dearth of criminal legal help for survivors?

Institutions are able to provide different remedies more quickly that are responsive to survivors’ urgent needs. I don’t want to romanticize the role of institutions because many of them fail, but I think, at their best, they are able to provide survivors with shift changes and dorm changes and mental health services and academic accommodations and paid time off with the sort of agility that the legal system just isn’t well-suited for.

I spoke with a number of survivors for the book who say that they just never would have felt comfortable going to the police and that it was much easier for them to imagine going to someone they already trusted — a supervisor or a dean — and asking for help.

“Even if the criminal legal system’s approach to sexual assault was vastly improved, it would still not be able to provide survivors all that they need.”

- Brodsky

You write that this book is not about restorative justice, but a lot of what you discuss is steeped in community work to address sexual harm within different institutions. What are the differences between what you’re arguing for here and what many restorative justice advocates want?

My book says that this isn’t about restorative justice, because these concerns about due process aren’t really applicable in the restorative justice context, because restorative justice almost always starts with the person who has caused harm admitting to doing so and making it clear they are ready to take accountability. In a world in which there are two people who tell different stories about what happened and an institution needs to figure out the real facts — that’s not a restorative justice proceeding.

These things are definitely related: A school could offer restorative justice and also pursue investigations where the parties don’t agree to restorative justice. It’s just not one in the same.

I have a real belief in restorative justice, but also, I think some people treat it as a silver bullet that will solve all problems related to sexual violence, including procedural problems. I just don’t think that’s true, because there are many circumstances in which the accused person is not ready to take accountability. There are many circumstances in which a survivor doesn’t feel comfortable with that and doesn’t want restorative justice. I believe we should be both building up that infrastructure and also recognize that it’s not going to be the right approach in every circumstance.

What do you hope readers take away from your book?

I hope that readers come away feeling confident that we can hold two things in our heads at once. We should both feel firm in our commitments to fairness and also keep our eye out for those who purport to share our values but are really bad actors. That can be tricky, but I think we can do it. We can do it because we have to.

This interview has been edited and condensed for clarity.