Law, MeToo, social media, due process, Al Franken, Roy Moore

Due Process is Only the Process That is Due

By Grace Lidia Suarez

There’s a lot of talk about due process lately, particularly in the area of men accused of sexual harassment, assault and child molestation.

Due process is not a one-size-fits-all concept. It is, in its simplest form, just the process that is due the accused under the particular circumstances. It is tied into the penalty imposed. The process due a person who faces incarceration or execution is many times greater than that due a person facing dismissal from a job in private industry. The latter, if he is employee serving at will, may not receive any process.

So when we talk about due process, we must begin by determining what is the punishment the accused faces.

In a criminal proceeding, he is entitled to notice of the charges, to counsel, free if he is indigent, to a preliminary hearing or an indictment (if the charge is a felony), to release on bail or own recognizance (except in capital cases), to discovery of exculpatory evidence, to confrontation of witnesses, and to a jury trial.

In a civil proceeding, except in small claims cases, he is entitled to notice, to counsel at his own expense, to discovery, to confrontation, and to a jury trial (depending on the amount at issue).

In an administrative proceeding such as a college disciplinary hearing, he must, at the least, receive notice and a hearing before an impartial body. Whether he is entitled to confront his accusers is not clear.

We are confident that precedent as well as a most fundamental constitutional principle support our holding that due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct. Dixon v. Alabama State Board of Education.

See also Goss v. Lopez.

In the “court” of public opinion, there is no process due. And of course, in the Wild West of Twitter, we hang ’em first and try them later. Unless you’re Ann Coulter, who apparently requires photographic proof.

What process is due a senator accused of sexual harassment? As we just saw in Al Franken’s case, the Senate was prepared to launch an ethics investigation, which could have ended in a recommendation of censure or expulsion from the Senate.

As Ana Marie Cox said today in the Washington Post:

Franken will leave the Senate quite alive, and with little threat (at this moment) of legal damage. He might have been denied “due process,” but that’s not because he won’t appear in front of the Ethics Committee, which will drop its recently opened investigation if he leaves the Senate; it’s because he’s not being criminally charged. His life won’t just not be over, it won’t even be ruined — he’s a wealthy man with many friends who show no sign of desertion. And I can’t see a man with Franken’s sizable talents and ego ever totally disappearing from the national stage.

So the process due Mr. Franken is substantially less than that due Roy Moore, were it possible to charge him with child molestation (it’s not, due to the statute of limitations).

Most of these cases will never be tried in a court of law (unless some of the accusers sue for defamation). So the only result will be the verdict of the citizenry, either by a consensus of opinion or by vote, in an election.

There is no process due in these situations, other than basic fairness and decency.

Grace Lidia Suárez

Fiat justitia ruat cælum

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