We mustn't abandon fundamental concepts of due process

On July 30, the Iranian-American Lawyers Association and West Los Angeles Law School conducted their fourth annual day-long program on Cultural Competency in Family Law, conceived by Abbas Hadjian, CFLS. Five panels of judges, experienced practitioners and psychological professionals explored how cultural differences impact procedural issues in Family Law litigation.

The focus of these annual programs is cultural differences that arise in a society made up of members from cultures around the world. But equally important, and probably more important for most litigants, are cultural differences within society that develop over time. Brown v. Board of Education marked a change from cultural acceptance of segregation that had been in place since 1896's Plessy v. Ferguson, just as Obergefell v. Hodges marked a slightly more rapid cultural evolution from Baker v. Nelson.

2016 is a year in which cultural evolution has become evident in both law and general society. Historically, rape has long been recognized as wrong. But for a long time it was a wrong not against a woman but rather against the man who owned the woman, her father or husband, or sovereign (droit du seigneur). Most cultures have evolved now to recognize that rape is a crime against the woman who is raped, rather than against her "owner."

With the recognition that rape is an evil attack on a woman's person, her rights, and her psyche, we have developed new thinking about other legal issues, notably due process. Two constitutional guarantees are now routinely questioned in rape cases. The Sixth Amendment confrontation clause guarantees a criminal defendant the right to confront witnesses against him. And the insistence that every element of a crime be proven beyond a reasonable doubt was even supported by Antonin Scalia. But both of these concepts is now under attack as our culture has shifted to new views of how rape cases should be handled.

It is now common to hear that any questioning of a woman who says she has been raped is impermissible. Rape is so horrible an intrusion that a victim can't be further abused by being required to answer questions about the crime. The natural corollary to this is that no victim of rape can be doubted. Thus, there can be no presumption of innocence for someone accused of rape.

These issues have been constantly in the press, with revelations about rape and other sexual abuses, particularly on college campuses. Anyone who has been to college knows that sexual activity is common, and that a lot of it is coerced or under the influence of too much alcohol or drugs. Sadly, the experience of many, perhaps most, people is that college administrations have been unresponsive to serious concerns about sexual abuse on campus.

But among those who most want colleges and prosecutors to be more active in protecting women, and prosecuting misconduct are those who are most strident about the need to do away with any rights of confrontation or presumptions of innocence. A case currently in the news focuses on part of the problem.

This October, a film titled "Birth of a Nation" will open. The film was written, produced and directed by Nathan Parker, who was accused and acquitted of rape 17 years ago. Acquitted means that he was tried, by a prosecutor with full cooperation of the rape victim, and found not guilty after a trial. Another defendant in the case was convicted.

But a slew of activists are speaking out, saying that people should not go to see a film made by "a rapist." Their theory is that the accusation equals a finding of guilt. That the trial, including all the prosecution evidence, was a meaningless exercise. That the jury's verdict does not mean that Mr. Parker is "not guilty."

This is different from, but related to, recent cases in which men convicted of rape or sexual assault have been given very lenient sentences by sympathetic judges. To many people, the mere fact of a lenient sentence for rape is anathema. People who are strongly against determinate sentences for any other crimes, people who, in the past, have wanted judges to be able to take circumstances, pre-sentencing reports and any other evidence into consideration when passing sentence, now want harsh sentences for rape, regardless of any sentencing evidence.

This is a cultural change which is affecting people's view of the law. Only a few years ago, during the McMartin pre-school investigation, we were enthralled with the idea that alleged sex abuse victims, even the youngest children, should be grilled thoroughly about their private lives and parts, and even challenged if they denied being abused.

With time our focus has changed. I accept, from every woman I know who has been raped, and from every woman I know who has not been raped but has spoken about rape, that it is a horrible crime that inflicts terrible, lasting suffering on its victims. Just as child sexual abuse does. Just as does brutal physical injury that leaves permanent disabilities.

When we say that any crime is so bad that it necessitates abandoning fundamental concepts of due process, we really say that every crime is that bad. Too many people now start with the presumption that all Muslims are "guilty," even if we don't know of what. A few years ago, terrorism was so great a crime against our society that we had to lock "terrorists" up in an off-shore prison, without trials, without any due process or presumption of innocence.

Now we continue to hold people at Guantanamo, even after military investigators tell us there is no evidence with which to convict them of any crime. Now they are a threat because they have been radicalized by years of imprisonment without charges, without any chance to prove their innocence. Is that a result to expect if we eliminate due process in rape trials?

The Guantanamo exercise may contribute to the cultural change in thinking about due process and rape. If we can end due process for one horrific crime, why not for another?

This year, a man was convicted of multiple murders of women, over the course of several years. Prosecutors said that he committed more murders, but that they lacked the evidence to effectively prosecute him for those. But when it came to sentencing, the prosecutor was allowed to argue that the death penalty was necessary because of the other, uncharged, unproven murders. Stripped of legal sophistry, the prosecutor's argument is that this man should be executed because he committed crimes for which he was never charged, never found guilty. No need to actually try him for those crimes, because he is so obviously bad.

We have been here before, when the most serious crime was horse stealing, or communism, or race mixing, or child abuse. Something is always the worst imaginable crime. But that something changes over time. Our commitment to due process should be constant enough to effectively deal with the changing moods of our culture.

Thomas M. Hall is a certified specialist in family law practicing in West Los Angeles.