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justice

Brian Frosh is Against Due Process

Maryland Attorney General Brian Frosh has joined other Attorneys General from around the country opposing a proposal to extend due process to college students.

Frosh signed on to a letter sent to US Secretary of Education Betsy DeVos on January 30th opposing changes to Title IX requirements that would allow college students accused of impropriety from being presumed innocent until proven guilty.

From the letter:

The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation.

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Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation.

The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard. The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment. Accordingly, there should be no presumption regarding the respondent’s responsibility.

As Conor Friedersdorf writes for The Atlantic:

Secretary of Education Betsy DeVos believes that college students accused of sexual misconduct in Title IX cases are owed a presumption of innocence, or non-responsibility, in keeping with a bedrock principle of Western justice. Attorneys general from 18 states and the District of Columbia disagree.

In a formal letter, these senior law-enforcement officials, who must overcome the presumption of innocence in their criminal prosecutions, asserted that the presumption of non-responsibility in campus proceedings “improperly tilts the process” in favor of the accused, and that it therefore should not be required of colleges, as the Department of Education recently suggested it should be in a proposed rule….

….If the attorneys general succeed in persuading the Department of Education to strip the presumption of innocence from the due-process rights of accused college students, they will be undermining a bedrock of Western justice. And the consequences for accused persons are unlikely to stay confined to college campuses.

While the proposed rule and Frosh’s opposition to it is federal in nature, what Frosh is suggesting is completely and totally subversive. What Frosh is saying is that somebody accused of a crime or of a rule violation or accused of anything is not innocent until proven guilty, something that has been part of American jurisprudence from the beginning of the Republic, parts of the 5th, 6th, and 14th Amendments, and affirmed by the Supreme Court in Coffin v. United States. It’s a basic human right in civilized countries to have the presumption of innocence and for the authorities to be forced to prove your guilt beyond any reasonable doubt.

Except Brian Frosh thinks that you should be presumed guilty until proven innocent.

It will be interesting to see how Frosh’s opposition to the presumption of innocence plays in the Democratic community, much of which often believe that the justice system is already rigged against the accused. Since Frosh is coming out and saying that rigging the system against the accused should be a feature and not a bug, we’ll see if the “progressives” rally against Frosh and his newfound belief that people are guilty until proven innocent.



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