The recent scandals involving NFL players Ray Rice and Adrian Peterson, for me, have revealed again this central contradiction in contemporary left-of-center thought. We have broad consensus on the left wing that we imprison too many people in America and that our police forces, in general, are overly aggressive and overly protected from punishment when they are guilty of abuse or corruption. And yet there’s also a constant impatience with any advocacy of due process, the presumption of innocence, or rights of the accused. I encounter this personally most when I am looking at Facebook or comments on websites like Gawker. People that I know to be self-identified as left-wing, or online groups that tend to be left-wing like the commenters at Gawker, are nonetheless convinced that every celebrity defendant is guilty, before the process has been given the chance to play out. Yet that due process is one of the only checks we have against the aggressive policing that, after Ferguson, we are trying to fix.
I’m even seeing progressive people putting scare quotes around “due process,” like it isn’t really a thing, or as if it isn’t an essential feature of any functioning democracy, or as if it isn’t threatened by our police state. I find this baffling.
The more sophisticated versions of this insist that rights of due process or the presumption of innocence apply only to the actual legal apparatus and that there is no obligation, moral or rhetorical, to respecting the process or maintaining skepticism about accusations. As I said regarding free speech, this is totally unworkable in actual, practical application. The notion that, for example, the NFL should mete out a harsh punishment on Adrian Peterson before he and his lawyers have had the opportunity to rebut the state’s claims just seems crazy to me. The idea that employers have no obligation to allow due process to work its course just seems contrary to a free society of laws. In a world where you have to eat to live and have to work to eat, saying that there is no expectation to due process in the workplace means that there is no expectation to due process at all. And empowering bosses to fire or punish workers at their whim seems entirely contradictory to basic left-wing commitments.
Take the creator of Cards Against Humanity, Max Temkin. He has been repeatedly referred to as an “accused rapist.” This appellation, clearly, could have a devastating effect on his life. Many would say that he has no right to any presumption of innocence outside of a courtroom. But he’s never been formally charged with anything. As far as I can tell, the only accusation that has been made against him was second-hand and in a Facebook post. If there’s no criminal case against him, how can he defend himself and shed that stigma? Is there literally nothing he can do to restore his reputation? Conor Oberst was also in a situation where his reputation was being destroyed outside of the court system. He responded by suing his accuser, as this seemed to be the only way to actually confront the accusation. He was vilified for doing so– how dare he sue a rape accuser? But these are the self-same people who insist that the only place we have any obligation to due process is in the court system. How can these opinions possibly be balanced in a way that isn’t a nightmare for those falsely accused? Oberst was later totally exonerated, but not before many people had already convicted him in their own minds. And that kind of conviction in the court of public opinion can have devastating social and economic consequences.
Indeed, this line of thinking is so intense that merely expressing doubt or a lack of information will get you labeled a rape denialist online. I know, I’ve been there. Those who doubted the veracity of the Oberst accuser’s story were called rape deniers or rape enablers or worse. And yet they were factually correct. I don’t understand why it’s so hard for people to recognize that we can a) believe that false rape accusations are rare, b) believe that sexual assaults go under-reported and under-prosecuted, but c) that false accusations do happen, rare though they certainly are and d) that for this very reason we require a system of due process. And a healthy recognition that we don’t know everything about every accusation. The notion that believing such things is inherently to dismiss or diminish rape is totally bizarre to me. Indeed: situations like the Oberst accusation, and the immediate rush to judgment by the collective will of the internet, strike me as directly undermining the effort to reduce rape and prosecute rapists.
Yes, it seems to me as well as to others that Adrian Peterson is guilty of a crime. But I know enough to know that I don’t know everything. I also know that rushes to judgment and media prosecutions have a horrible track record in civil society. I also know that presuming that everyone accused in high-profile crimes is guilty cannot help but contribute to prosecutorial overreach and police aggression. Those things go together, as they surely did in the Central Park Five case, where the absolute certainty of average people that the Five were guilty directly contributed to a politicized prosecution, and thus to injustice. More than anything, the rush to assume that we know who is good and who is bad based on our limited information seems again to be part of a juvenile vision of politics, a notion of left-wing practice as a matter of good smart people who know everything and the dumb evil people who wreck everything. That’s not a mature or workable long-term philosophy for social change, and I think the zeal with which we publicly prosecute the accused necessarily contributes to an aggressive and destructive justice system.
Update: “The difference between the Central Park Five and Michael Brown, and the NFL players you’re talking about here, is that the former are poor and lack social capital, and the latter are rich celebrities. What we want is to remove the privileges that prevent such people from facing the consequences of their actions.”
Me too! But that has to come about through challenging the general economic privilege we bestow on the rich, not by making it easier to prosecute crimes in general. Precisely because it’s very unlikely that this will make it harder on the rich, and more likely to make it harder on the poor. I worry about procedure because principle and procedure matters, yes. But also because the consequences of threats to due process and the presumption of innocence will overwhelmingly be borne by those in our culture who lack social capital. I fear that undermining the commitment to due process in these high-profile but small-in-number cases will filter down to the poor people who are typically the target of our judicial process and police.
Totally agreed — I got into a brief argument with a friend recently, because I tweeted in annoyance about a social-justice warrior and supposed journalist referring to Daniel Holtzclaw as a “rapist,” no “accused” or “alleged” or any similar qualifier attached. But you’re making this sound more simple than it is. People sneer at due process because they see a system that isn’t working, where cops and other authority figures don’t get prosecuted to the full extent of the law, and where celebrities and other wealthy people can afford attorneys who get them judged way more leniently. (Would it shock anyone to hear about a famous accused rapist getting exonerated, but only because the accuser was coerced or intimidated into a retraction?) There’s no question that due process is an essential part of a functioning democratic society, and that dismissing it will just end up boomeranging back and hurting the people without power more. But for the time being, any advocacy for due process should include a clear admission that the system needs serious repair. Otherwise I think it’s very hard for the people you want to convince to take your argument seriously.
Do you think non-police/legal bodies should take steps in response to criminal allegations against their members?
That’s what the argument’s about when you strip some of the hair-trigger web anger away. With rape accusations, for example, should colleges take steps to keep the possible rapist and his/her victim separate if the victim chooses not to press charges in court? With crimes by NFL members, should the NFL take steps to remove players from play and punish them if a criminal investigation doesn’t happen?
NFL players have a union and also sign contracts that contain personal behavior clauses. The NFL should do whatever is spelled out in those various agreements. It isn’t their job to administer society’s abstract notions of justice and it would be foolish to empower them to do so.
I don’t understand why it’s so hard for people to recognize that we can a) believe that false rape accusations are rare, b) believe that sexual assaults go under-reported and under-prosecuted, but c) that false accusations do happen, rare though they certainly are and d) that for this very reason we require a system of due process.
I think the difficulty is with the implied premise in d) (call it d-sub-1, or e) that the current system we have is that system of due process. Better minds than mine can explain the many ways in which the judicial system is biased against … the poor? ethnic minorities? victims of sexual assault? Take your pick.
I wouldn’t want a defense of a fair system of evidentiary justice to be mistaken for a defense of the American judicial system; I imagine you don’t, either.
Sure, but I don’t think that’s to suggest an employer should not act upon when the facts are undisputed, as in the Ray Rice case.
It was clear, from the first elevator video, that he had physically rendered his fiance unconscious. Why should an employer, with such undisputed evidence, wait for the State, to render it’s finding. In fact, in this case, RR was diverted from any such finding or State punishment, because of his privilege as a high-profile football player, despite guidelines suggesting he was ineligible (and other, more deserving defendants, do not get such access to the diversionary programs) https://firstlook.org/theintercept/2014/09/12/double-standard-going-easy-ray-rice-prosecutor-torments-single-mom/.
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But with AP, sure, the facts are in dispute so I agree that there isn’t a need to rush to judgment, in this case.
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Sharing some similarities to the Conor Oberst case, what do you think about the Brian Singer case. Is it appropriate to think that he’s a skeeze ball who’s likely raped more than a few underage boys? Only if he’s actually convicted, should we protest his public persona and works? Or, is this just silly talk, since Hollywood is ok with Roman Polanksi.
I’ve been chewing on this Rice/Goodell thing for days and have really avoided saying anything about it because the liberal internet has gone full metal stupid on the issue. Now you’ve opened Pandora’s Box.
I barely have words to convey how myopic it is that a private entertainment consortium run by billionaires is expected to administer justice in the Rice case. Is it my imagination or do we have a publicly funded criminal justice system? What did that system do about it? And why hasn’t the liberal internet breathed a word about it (to be fair to Jon Stewart, he did mention the publicly funded criminal justice system’s proceedings for a few seconds before spending several minutes on the NFL, as the Hive Mind demanded)?
For exactly the reasons you point out, it is titanically short-sighted to task a private consortium of billionaires to be the sole administrators of justice in this case, which is effectively what is being demanded.
What did Roger Goodell know and when did he know it? Well, who the hell cares? He’s a functionary in an entertainment consortium, not a judge in a court of law. The Penn State case had similarities; everybody focused zombie-like on what a befuddled old coach knew and when he knew it. Crooked and incompetent prosecutors everywhere are cackling with glee at these unfolding dramas, since they can rest assured that their own actions will receive little to no scrutiny.
An important point; certainly, the NFL bought Rice as much cover as they could, issuing octopus ink about supposed ambiguities of what might have happened in the elevator. Once Goodell was caught lying about having seen (or having one or more underlings see) the surveillance video from the elevator, the whole scam became vastly more obscene and corrupt, for Goodell then obviously stood in conspiracy to prevent us from knowing what actually happened. It seems highly unlikely that Rice would have been shipped into a diversionary program under those circumstances.
Um, Rice was put in the diversionary program a month before the meeting with Goodell and two months before the NFL issued its first suspension.
You’re right, of course. But the sense I got was that Goodell was happy to let his lawyer talk for both them AND the league; if the report that the NFL got a copy of the law enforcement copy of the video in April, they certainly made no effort to change their minds.
This is speculation, and why are we wasting our time on it? 99.999% of domestic violence is committed by non-NFL players and adjudicated by the publicly funded criminal justice system. What incentive do abusers and prosecutors have to do the right thing if their actions are utterly ignored while liberals and the media are busy counting coup?
I think the last several years have shown that some liberals are actually glad to dispense with democratic principles as long as the “bad kind” of person suffers by it, and the “good kind” profits by it. Those principles include due process in criminal justice, but also things like political separation of powers, the right to privacy, and 3rd World civilians’ right to life.
They’re fine with the imperial presidency, as long as it’s their team in charge. That way, their president can launch wars without Congress; after all, he’s a good person and he’s simply trying to use the magic bullet of US military power to kill bad persons. And when they make up their minds that this or that celebrity or privileged person is guilty, well there’s no need to fuss with protocol. Lock ’em up and throw away the key.
Totally agree. There’s the added irony that, for years, players and sports commentators have criticized Goodell’s heavy handedness in dishing out suspensions; he’s an “authoritarian,” he victimized the Saints, and the disjunction between Josh Gordon’s full season suspension and Ray Rice’s was one of the ways the story initially got traction. So, best I can tell, the folks at Gawker and their ilk want this man, whom they admittedly don’t and have not trusted for years, to be more proactive and harsh in dishing out punishment — so long as it’s the right kind of crime. I mean, I am no admirer of Roger Goodell, but if you think the man can’t be trusted to mete out “justice” then maybe he shouldn’t, and we should instead rely upon the institutions we’ve built to do so to do so (imperfect though they may be).
My read is that lambasting Goodell is an easy way to feel good, and feel like something has been accomplished. It’s difficult for the justice system, for a variety of reasons, to deal with domestic abuse, and reforming it is much more difficult than hating on an NFL commissioner that nobody likes.
I agree with what you are saying about the need to protect due process as an essential right as well as the urgent need to fight and reduce incarceration. However, I think there is a large error being made in your analysis.
You write:
“The recent scandals involving NFL players Ray Rice and Adrian Peterson, for me, have revealed again this central contradiction in contemporary left-of-center thought. We have broad consensus on the left wing that we imprison too many people in America and that our police forces, in general, are overly aggressive and overly protected from punishment when they are guilty of abuse or corruption. And yet there’s also a constant impatience with any advocacy of due process, the presumption of innocence, or rights of the accused.”
and:
“I don’t understand why it’s so hard for people to recognize that we can a) believe that false rape accusations are rare, b) believe that sexual assaults go under-reported and under-prosecuted, but c) that false accusations do happen, rare though they certainly are and d) that for this very reason we require a system of due process.”
I don’t understand why your reasoning made this turn. As you acknowledge, false rape accusations are RARE. So I don’t think that’s a significant factor in what is going on here. It shifts all the pressure of the actions of the NFL and the state upon the alleged victims making the charges, and upon the public’s resistance against legacies of impunity, especially for powerful & prestigious offenders of sexual violence. I don’t think the question to be asking is, “Are we sure that the sexual assault allegations AREN’T FALSE?” as though the major issue at hand is the need to protect celebrity defendants from their alleged victims.
I thought your analysis was more on-point before you made this turn, when you kept the discussion focused in the realm of the NFL and the state in relation to the defendants. The problem is an issue of the private workplace being enabled by a corrupt and complicit capitalist state to overrule the right to due process.
As far as “the zeal with which we publicly prosecute the accused” – I would argue that this “zeal” is primarily a reflection of the degree to which sexual assault offenders are traditionally protected with impunity – particularly the more powerful & prestigious the accused. I recognize that there are/can be reactionary elements in public outcries to prosecute sexual violence, and I agree with you that job loss, court sentencing, or even jail time do not reflect “workable long-term philosophy for social change” for the left. However, I take issue with homogeneously grouping & writing off the “zeal,” because I recognize that large segments of that “zeal” are comprised of people and movements struggling against legacies of sexual assault.
The reason I want to share this article, for instance, is because of the following points this writer made in response to Ray Rice’s initial 2-game suspension:
“Josh Gordon of the Cleveland Browns was given a one-year suspension for smoking weed, while Ray used his woman as a punching bag and they told him to be on timeout for 2 weeks. They’re telling us that partaking in the puff puff pass is a more punishable offense than beating a black woman.
[…]
The NFL is protecting an asset they value (not as a human but more as a piece on their moneymaking chess board).”
http://thegrio.com/2014/09/08/ray-rice-elevator-domestic-violence-black-women/?onswipe_redirect=no&oswrr=1
The more pervasive and long-standing reactionary response to sexual violence is no response. Nothing. Impunity. I think this is where most of the zeal comes from and what it is actually fighting against. It is unfortunate that the NFL and the courts and the state and the mainstream media don’t actually care about sexual violence or domestic/intimate partner violence or about victims’ rights – or, as you rightly point out, even the rights of their players/employees – they’re just doing a 180-degree turn to respond in the most reactionary ways they can. They frame these responses as if they were “the” alternative to the traditional impunity. When this is presented to the public as “the” response or as “the” alternative to impunity, the media amplifies this and eggs on the public. This sends extremely damaging messages to victims and survivors and all those who struggle against sexual violence as well: the false “choice” they are confronted with becomes “impunity” vs. “totally ruining the defendant’s life/career/reputation/etc *if YOU’RE going to ‘insist’ that YOU really want us to respond to this.*”
It is a mistake to think that the NFL or the courts or the media are acting at the behest of or in the service of victims, or the majority of those segments of the left that have long been dedicated to struggling against sexual violence. They’re just finding new ways to frustrate or exploit these struggles in ways that will not damage or threaten existing economic/power structures. In ways that won’t compromise business. They’re the ones who take these struggles from the left and offer us back these severely constrained and largely “lose-lose” “alternatives” – while being manipulative enough to convince a lot of people that this is what “we” want and a direct outcome of what “we” initiated & asked for.
“The more pervasive and long-standing reactionary response to sexual violence is no response. Nothing. Impunity.”
…I should modify that to include victim-blaming.
(For example, this quote is also from the article I linked:
“…As if that wasn’t bad enough, in a press conference held in May, Janay apologized about the role she played in the elevator. THEY MADE THIS WOMAN SAY SORRY FOR GETTING KNOCKED CLEAN OUT LIKE A CHARACTER IN MORTAL KOMBAT! I wish I had the words to articulate how disturbing that is. She has to take responsibility for being beaten…”)
“It shifts all the pressure of the actions of the NFL and the state upon the alleged victims making the charges, and upon the public’s resistance against legacies of impunity, especially for powerful & prestigious offenders of sexual violence.”
There’s no shift. The burden of proof is on the state, as with any crime, as it should be. No matter how rare false rape accusations are (and as mentioned here, the Innocence Project shows that at least false identifications are not so rare as to not affect a lot of people’s lives), it doesn’t change the principles behind why we have due process.
Changes can and should be made to the response of rape reporting, but it can’t go so far as to destroy the presumption of innocence.
“…it doesn’t change the principles behind why we have due process.”
Agreed – but upon the principle of due process as an essential right in a democracy. Sexual violence is not a victimless crime – and in addition, sexual violence is often notoriously impossible to prove. That means that the state cannot prove the defendant guilty of a crime, but does not by default mean that the charges were false.
” Changes can and should be made to the response of rape reporting, but it can’t go so far as to destroy the presumption of innocence.”
I don’t believe I said anything at all to advocate for destroying the presumption of innocence for defendants. What I did talk about is how inherently inept and damaging the capitalist state is in regard to sexual violence – MOST often if not only to victims, then to both victims and the accused.
Capitalism has nothing to do with it. The powerful always get special privileges. Economic power is at least something available to most people, provided the rest of us don’t hold people down.
“Capitalism has nothing to do with it.”
How so?
I think capitalism has everything to do with it.
– the traditional default “response” to sexual violence is most often no response/impunity/victim blaming
– the traditional exceptions are when the accused belongs to an oppressed class & is automatically villainized (i.e. through racism, classism, various social “phobias,” etc) or is otherwise considered “expendable,” or “more expendable” than the alleged victim – then this feeds into the incarceration/judicial systems
– if the public outcry is strong enough against sexual violence, as in these cases, the NFL/the capitalist state will resist the outcry and remain unresponsive until or unless it draws out the public resistance to a narrow point of extremes, in which case, they will then corner victims/the public into a polarized dichotomy of extremes, in terms of possible outcomes: “impunity” vs. “total destruction of the defendant’s life/career/reputation/etc”
(*though a number of cases in recent years demonstrate that this destruction/stigmatization is not necessarily always absolute)
– in other words, capitalist enterprise and the capitalist ‘justice’ system will always “sacrifice” the victims or the accused, but never capital/power. The “choice” becomes: “either you go down, or he goes down, or you both go down, but never us.” Never the systems that generate, or are part of generating, sexual violence in the first place.
One gets the impression that they would be less rare if the legal system let mere accusation become the standard for subsequent punishment.
Just a hunch.
The rarity of false charges is not an excuse for the dispensing of due process, full stop.
I think this is why Adam Silver is so beloved. He gives the people what they want: an intense, on-camera fit of sincerity in the 24-hour window where a scandal is still trending. The procedural grind of actually fixing the problem isn’t any fun and the public’s brownie points are long given away.
Viral social justice is a weird world, and Roger Goodell wasn’t cut out for it. All the left really wants is for the NFL commissioner to do a press conference and sound like a person that uses the word ‘rape culture’ in regular conversation.
On the one hand, a large percentage of the people freed after decades by the Innocence Project were accused of rape and other sex crimes. On the other, it has become a shibboleth among the feminist and feminist-aligned left to ever suggest a rape conviction was false.
I think the power of the shibboleth to define us-vs-them has become more important in this age of trolling than the need to balance out the rights of two competing victim groups.
If you ever question a rape accusation, or the way the wage gap is calculated, or about a half-dozen other particularly sensitive accepted truths, you’ve outed yourself as not really belonging in the kind of community where progressives discuss this sort of thing. It’s a defense mechanism, like WWII GIs asking soldiers at the base gates who won the last World Series. T
“the consequences of threats to due process and the presumption of innocence will overwhelmingly be borne by those in our culture who lack social capital.”
Sounds smart to me. Could the same be true of threats to standards of civil discourse?
This feels fatally flawed, simply due to the fact that my employment doesn’t hinge on the legality of my actions. There are plenty of things that are well within my rights to say, but which would quite rightly get me fired.
Furthermore, why are the thresholds for proof necessarily the same between employment and legality? It’s quite possible that there isn’t enough proof for a criminal conviction but enough proof for a an employer to want to part ways with an employee. We already have different thresholds for criminal and civil charges, so employment being another threshold isn’t at all unreasonable. Not to mention all the strange plea variants that happen all the time — it’s not like employers are guaranteed a trial with a clear guilty/not-guilty verdict.
Some amount of due process over employment decisions is obviously reasonable. But I don’t see why it’s necessary that it be perfectly aligned with our legal system.
This is an excellent and timely post. Social-media justice is mob justice.
We need more dads.
Here’s where I thought you were going:
In Ferguson, we see a divide that the left tells the right, we don’t get what it’s like to be poor, to be black.
http://www.usatoday.com/story/sports/nfl/vikings/2014/09/15/adrian-peterson-minnesota-vikings-child-abuse-whippings-indictment-son/15696169/
Plenty of white middle class kids I grew up with got beat pretty damn well, and MANY who did, know they turned out just fine.
In my town, Massillon, Ohio, all the day thru High School, you could take detention or take the whacks of the most sadistic male teachers in the school, and every guy I know (and some girls if I remember right) took the goddamn whacks. Bruises and humiliation were were judged by the market to be less bothersome than early morning detention.
This is not a pleading that we should beat kids today. Far from it, we’re simply a smarter better people than our parents, and we should say it that way, “We’re better.”
BUT, I’m not comfortable taking legal / financial action against a parent who clearly loves his children, and doesn’t know any better.
And we are asked by the left EVERYDAY without fail to overlook the failings of those who were not raised with our “priviledge.”
And as fathers in black communities go, Nelson Peterson sounds like a pretty stand up loving (if violent) dad. The man was certainly involved.
“Corporal punishment is legal in Texas, but going too far can result in a felony conviction that carries a prison sentence of two to 10 years. Among the considerations are the extent of the injuries to the child, the age of the child and the “totality” of the parent’s relationship with the child, experts say.
“Corporal punishment has been held to be reasonable under some circumstances and not reasonable on others,” says Scott McCown, a clinical professor at the University of Texas School of Law and the director of the Children’s Rights Clinic. “Generally speaking, law enforcement and district attorney’s take the position that if there’s injury that requires seeking medical attention, it is not reasonable discipline.”
The goal here ought to be to use this example to teach parents who STILL don’t know any better to know better. It shouldn’t be to ruin a “bad” dads life.
“Although the armed hand is employed only against the enemy, the unarmed is stretched out against the citizen also. It is needful that both should be subject to discipline, because both have a noteworthy tendency to viciousness … Because the license of officials has a freer rein in that they can use the pretext of their office to despoil or harass private persons, all usurpations contrary to their official duty must be punished with a proportionately heavier penalty.” — Policraticus, book 6 (a 12th-century text).