The Anti-Due Process / False Accusers Movement

In the last twelve months, coalitions of organizations and public officials have joined forces to demand the following in a education setting:

  1. The explicit removal of the presumption of innocence
  2. Punishment for accused students after courts find their guilt was determined in unconstitutional school proceedings
  3. Immunity for knowingly false accusers

We list four key examples below and provide commentary at the end. This list is timely because it is immediately actionable; your senator who may be up for re-election in midterms may support such policies.

1. Nineteen Senators Demand the Removal of the Presumption of Innocence in Title IX Proceedings

In September, nineteen senators signed their names to a letter to the Department of Education to pressure them, in their re-write of Title IX regulations, to (among other things) “remove the presumption that the respondent is not responsible for sex discrimination until a determination is made.” Patricia Hamill and KC Johnson wrote about it here. The names of the senators – some of whom are up for re-election – are:

  1. Bernie Sanders
  2. Elizabeth Warren
  3. Patty Murray
  4. Jeffrey Merkley
  5. Cory Booker
  6. Tammy Duckworth
  7. Amy Klobuchar
  8. Richard Blumenthal
  9. Robert Casey
  10. Tina Smith
  11. Alex Padilla
  12. Mazie Hirono
  13. Tammy Baldwin
  14. Jack Reed
  15. Tim Kaine
  16. Jacky Rosen
  17. Benjamin Cardin
  18. Ben Ray Lujan
  19. Ron Wyden

2. Accuser Advocacy Coalition Demands the Removal of the Presumption of Innocence in Title IX Proceedings

This coalition of seventy-eight “anti-sexual violence organizations” submitted a letter comment to the Department of Education in September during the public comment period for the proposed regulations. The coalition stated that “We oppose the Department retaining the harmful rule from the previous administration that currently requires schools to presume that the respondent is not responsible for sex-based harassment (or other sex discrimination) until a determination is made and to inform both parties of this presumption.” For space reasons, we will not list all of seventy-eight organizations here.

3. Accuser Advocacy Coalition Demands Immunity for False Rape Accusers

In Khan v. Yale, fifteen organizations filed an amicus brief demanding immunity for accusers from defamation suits, even when it is proven the accusers lied. Their brief argued that “Without protections from retaliation, including absolute immunity, victims will be dissuaded from using school reporting and disciplinary processes and will lose out on their education while perpetrators dodge accountability.”

Of course, a false accuser is not a victim, and a defamation suit filed against a false accuser is not retaliation. False accusers are entitled to due process just like the people they accuse. And of course, if false accusers have immunity, it is they who will dodge accountability. The brief is laden with similar emotionally manipulative rhetoric. Interestingly, the proposed brief was initially denied, but the court allowed the organizations to resubmit a proposed brief that was – unlike the first one – “shorn of all facts not supported by the record.” Here are the fifteen organizations who filed the brief:

  1. Know Your IX
  2. National Women’s Law Center
  3. Women’s Law Project
  4. Legal Momentum (formerly the National Organization for Women Legal Defense and Education Fund)
  5. Fierberg National Law Group
  6. Chicago Alliance Against Sexual Exploitation
  7. Connecticut Coalition Against Domestic Violence
  8. Futures Without Violence
  9. Jewish Women International
  10. National Alliance to End Sexual Violence
  11. National Coalition Against Domestic Violence
  12. National Crime Victim Law Institute
  13. National Network to End Domestic Violence
  14. Network for Victim Recovery of DC
  15. Sanctuary for Families in Support of Defendant-Appellee

4. Accuser Advocacy Coalition Demands the Right for Accusers to “Preserve a School’s Guilty Finding” After School Proceedings Were Found Unconstitutional

Accused student John Doe was victorious against UC-Santa Barbara when the court found he was not afforded due process and accordingly issued a writ ordering UC-Santa Barbara to set aside the imposed discipline. His accuser, a nonparty to the writ proceeding, then intervened and moved to vacate the order, arguing that she had a right to preserve a guilty finding against John Doe. She further argued that she had a right to participate in the writ proceeding at the trial court level.

She was unsuccessful on appeal, as a panel of three appellate judges found that she failed “to establish that she has a cognizable right to preserve a finding and sanction that were rendered in a proceeding that violated John’s constitutional rights” and that her argument “confuses [her] interests with her rights.” Ten accuser advocacy organizations filed briefs in her support. They are:

  1. Know Your IX
  2. National Women’s Law Center
  3. Women’s Law Project
  4. Family Violence Law Center
  5. California Women’s Law Center
  6. Family Violence Appellate Project
  7. Hannah Vigil, L.L.
  8. Dunn Law Firm, PLLC
  9. The Maryland Coalition Against Sexual Assault
  10. Safety Advisors for Educational Campuses, LLC

Jane Doe’s supporters would claim her intention was merely to seek a temporary preservation of a guilty finding until she could participate in the writ proceeding, but this claim is demonstrated hollow by the fact that – as the appellate court stated in its opinion – Jane Doe “articulates no direct interest in John’s claim that the University violated his right to due process.”

In short, if an accuser is frustrated that a school’s unconstitutional proceeding backfired and was overturned in court, their argument is with the school, not the court that found the proceeding unconstitutional. As the opinion’s author Judge Alison Tucher noted: “When the accused does not receive a fair hearing, neither does the accuser,” citing Doe v. Regents of University of California (2018). Due process does not merely protect the rights of the accused; it protects the integrity of the system itself.

Commentary Regarding the Senators

As an organization, we do not tell anyone to vote down party lines. We do, however, ask that voters factor a public official’s opposition to due process into their decision-making when voting for individuals. It can be frustrating that the world is, in some respects, going in the wrong direction. The key is focusing on what we can control and influence. The most immediate power you have to help the rights of the accused is to factor the nineteen senators’ opposition to due process into your midterm vote.

Commentary Regarding Accuser Advocacy Organizations

As we are seeing, these organizations no longer simply oppose sexual violence or support victims. They now go much further by opposing the presumption of innocence, opposing a remedy for those wrongly found guilty in unconstitutional proceedings, and demanding immunity for abusers who simply choose false accusations as their preferred method of abuse. We will no longer refer to them as “anti-sexual violence organizations” as that is no longer appropriate, and we recommend that you do the same. They are better described simply as accuser advocacy groups – and for those who advocate immunity for false accusers, even that would be charitable.

If this is now the role of these organizations, there is no reason for many of them to continue to be funded or exist. Other organizations can take their place in serving victims without advocating such extreme measures. It is no different in any other context. Organizations opposed to gang violence can advocate an end it and support families shattered by it without advocating against the presumption of innocence, demanding immunity for false accusers, or demanding that institutions preserve findings of guilt that were produced by unconstitutional proceedings.

A false allegation of abuse isn’t mere name calling. It is an attempt to destroy everything that makes life worth living: a good name, loving relationships, a sense of security and peace of mind, a decent job, education, and more. It is every bit as harmful as physical abuse, and no one should have immunity when acting in bad faith to destroy another person’s life. Accuser advocacy organizations argue our institutions should categorically ignore an entire class of victims to support another, but it is not a zero-sum game. Treating it as such is unproductive and unworkable.

We would like to leave you with a quote by former Denver sex-crimes prosecutor Craig Silverman. Tellingly, he was only comfortable making this statement after his retirement. His candid comment is so insightful and has such a ring of truth that it deserves to be quoted at length:

For 16 years, I was a kickass prosecutor who made most of my reputation vigorously prosecuting rapists. I am unaware of any Colorado prosecutor who put as many rapists away for as much prison time as I did during my prosecutorial career. Several dozen rapists are serving thousands of years as a result of my efforts.

However, during my time as a prosecutor who made case filing decisions, I was amazed to see all the false rape allegations that were made to the Denver Police Department. It was remarkable and surprising to me. You would have to see it to believe it.

Any honest veteran sex assault investigator will tell you that rape is one of the most falsely reported crimes that there is. A command officer in the Denver Police sex assaults unit recently told me he placed the false rape numbers at approximately 45 percent. Objective studies have confirmed this. See Purdue Professor Kanin’s nine-year study published in 1994 concluding that over 40 percent of rape allegations were demonstrably false.

The above statements are heresy to say publicly for many politically correct prosecutors. That is especially true if they want to maintain good relations with the victim advocacy community.

Silverman’s comment was made nearly twenty years ago (2004). The problems with the accuser advocacy community have only gotten worse.

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