State Supreme Court upholds due process, but how long?

By Chris Powell

Due process of law always hangs by a thread, dangling in the winds generated by mob instincts to which elected officials often pander. More resentment of due process has been generated by a decision last month by the state Supreme Court in a case involving students at Yale University.

A female student accused a male student of rape. He denied it. The university held a disciplinary proceeding, found the man guilty, and expelled him. The man was also charged criminally but a state court acquitted him. Whereupon he sued his accuser for defamation. She sought to dismiss the lawsuit, as if the university’s decision against the man she accused could not be questioned.

But the Supreme Court decided unanimously to let the man’s defamation suit continue, concluding that Yale’s disciplinary proceeding was inadequate because it had not granted all the ordinary rights of criminal defendants.

Women’s rights groups are alarmed. They complain that requiring colleges to provide full due process of law to students accused of rape will make it harder to convict them and discourage accusers.

Well, of course.

Yes, accusations are so much easier to make and convictions so much easier to obtain where due process of law is waived. Totalitarian countries don’t bother much with the rights of the accused and have spectacular conviction rates.

Yes, accusations and convictions are so much easier when accusers can escape accountability, as when their identities are concealed in official proceedings, as even Connecticut conceals them.

Yes, due process makes things more difficult for an accuser, especially when the accusation is sexual in nature. Accountability can be stressful.

But the principles of due process apply and their consequences are the same in all criminal prosecutions, not just those involving sexual assault. The right of due process is in the U.S. Constitution twice – in the Fifth and 14th Amendments. It’s in the Connecticut Constitution’s Declaration of Rights as well.

Both constitutions add the right of people to confront their accusers — the U.S. Constitution in its Sixth Amendment, the Connecticut Constitution in its Declaration of Rights.

So should due process be waived in sexual assault cases but not in other criminal cases? If so, due process is not a principle at all.

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Liberals used to be the great defenders of due process. Conservatives were the ones who sometimes maintained that certain crimes were so awful as to justify waiving due process and who vilified defenders of due process as soft on crime.

But that was before the age of political correctness, wherein it is now held that accusations of sexual assault — often being difficult to prove because of the lack of evidence beyond the accounts of accuser and accused — should be advantaged by a lower standard.

The Trump administration’s Education Department told colleges that their rules for adjudicating claims of sexual assault should guarantee the accused the right to confront and cross-examine their accusers. The Biden Education Department, whose secretary is Connecticut’s former education commissioner, Miguel Cardona, is revoking that requirement, undoing due process.

That is not likely to be the end of the matter. Since political correctness now rules in Connecticut, the next session of the General Assembly may see legislation to undo or evade the state Supreme Court’s decision in favor of due process, and once again those who defend due process may be vilified.

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BIDEN CAN’T CAMPAIGN: Apart from the unhappiness about President Biden being expressed by both people generally and Democrats particularly, there’s another reason he might be defeated for renomination more easily than many people think.

That is, the president was hardly presentable in his campaign three years ago, spending much of it at his home in Delaware, and he is even less presentable now. He seldom can think on his feet and answer unscripted questions. He often seems not to know where he is. He needs so much time to rest. Even a couple of days of campaigning probably would exhaust him into incoherence.

Donald Trump doesn’t tire so easily. If only he did.

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Chris Powell has written about Connecticut government and politics for many years. (CPowell@cox.net)

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