The Real Meaning of Due Process in the #MeToo Era

President Trump should know that also fairness requires that those reporting violence and harassment be fully heard.

A woman stands in front of a sign at the Women's March in Washington, D.C., in 2017. (Lucas Jackson / Reuters)

It took two White House aides resigning after allegations of domestic violence for President Trump to bring up due process. On Saturday, Trump tweeted:

While the president’s remarks have caused a great deal of controversy in this #MeToo era, those accused of domestic violence and sexual assault are certainly entitled to due process. But they’re not the only ones. A commitment to due process can’t be selective; all Americans are entitled to have their rights defended. That’s the point the president seems to have missed.

The Fifth and Fourteenth Amendments provide that no person shall be deprived of “life, liberty or property, without due process of law.” This means that before the government locks up a human being, takes her property, or ends her life, it must offer, at a minimum, notice of the charges and a meaningful opportunity to be heard. But this principle is triggered only when the government itself acts to deprive an individual of those rights. As a legal matter, it does not apply to private businesses, much less in the court of public opinion.

“Due process,” as raised in the context of #MeToo, often speaks to a broader conception of fairness, not just a legal one. Individuals accused of domestic violence, sexual assault, or other forms of wrongdoing should be heard before employers fire or discipline them. A rush to judgment can entangle innocents and promote unjust results. But fairness also requires that those reporting violence and harassment be fully heard. Here’s where both Trump, and society have commonly failed.

For far too long, those who suffered domestic violence and sexual assault—the vast majority of whom are women—have been disbelieved, ignored, and even punished. Historically, domestic violence was viewed as a private matter that took place in the home behind closed doors and outside the purview of public scrutiny, and in rape cases, judges instructed juries to treat the testimony of those assaulted with extra suspicion.

Survivors of domestic violence and sexual assault who request police assistance, particularly women of color, low-income women, and LGBT people, frequently are dismissed because law enforcement officers do not take their complaints seriously. Even with the enactment of rape shield laws, rape victims too often face questions from police about their sexual history, which are used to discredit them. Indeed, some women who filed sexual violence complaints with police have been charged with false reporting, only to be vindicated later, when the perpetrators went on to commit more assaults.

In the employment context, women bringing sexual harassment claims face tough battles to satisfy difficult legal standards and overcome juror skepticism. These unfair processes have kept too many women silent for so long.

Even in the current, more receptive #MeToo moment, the credibility of people alleging sexual harassment or assault seems to depend on corroboration by multiple victims or undeniable evidence. The allegations against Harvey Weinstein, for instance, became a matter of public outrage only when the number of women coming forward reached a breaking point; individuals who had previously alleged sexual assault by Weinstein had been ignored. In the case of Rob Porter, the White House aide, it is unknown whether he would have resigned had only one of his ex-wives alleged abuse or if the photo of one of the women with a black eye had not gone public. Indeed, the White House, which had hired him into a top security position, continued to defend him until it became untenable. Still today, the scale seems too often tipped in favor of “he said” until there are multiple “she saids.” This, too, is a due process problem.

The Trump administration’s selective approach to due process does not end there. In the span of a year, courts have found that this administration has violated the constitutional rights of foreign nationals, Muslims, transgender military service members, undocumented teenagers seeking abortion, and an American citizen detained without charges as an “enemy combatant.” Trump himself has a long record of making false allegations, ranging from the conspiracy theory that President Obama was born in Kenya to insisting the Central Park 5 were guilty of a rape they did not commit even after they were exonerated. When his crowds chanted “lock her up” in response to his attacks on Hillary Clinton, Trump said nothing about due process. Due process is a fundamental value in our constitutional system—the linchpin of fairness. But in discussing due process as a legal and cultural concept, we can’t be selective. If Trump cares about due process, he should be concerned not just for his friends accused of abusing their wives or girlfriends, but for all people, particularly those whose rights are being trampled by his administration.