Due Process in the Era of #MeToo

[The following was written about the same time as we were writing Intersecting Strands of Oppression for ULK 65. This author echoes our own discussion of the Brett Kavanaugh hearing while heavily citing MIM Theory 2/3, as we did in our piece. This question of how gender and nation interact, and how revolutionaries should approach these topics in order to push things in the right direction continue to be of utmost importance. - MIM(Prisons)]

On 27 September 2018, in the United States Senate’s Judiciary Committee, the nation heard riveting testimony of an attempted sexual assault, and the denial of that assault. A Crime that had occurred 37-years ago with no corroborating witnesses.

In a he-say, she-say trial, who gets the benefit of the doubt? The accused, or the accuser? In this era of #MeToo, is it guilty until you can prove yourself innocent, or innocent until proven guilty? Could due process be sacrificed at the altar of gender politics and why does it matter?

In reviewing my in-cell library on feminist theory, these matters and debates are not new, and the answers to these questions have long been addressed. The first question that has to be asked, “Who speaks for the feminist?” “Who has her girlfriend’s back?” The demarcation in the feminist lines can best be exemplified by the research compiled by one feminist researcher, Ealasaid Munro:

“The emergence of ‘privilege-checking,’ however, reflects the reality that mainstream feminism remains dominated by straight white middle-classes. Parvan Amara interviewed self-identified working class feminists for a piece published on the internet magazine The F Word and noted that many of the women she spoke to found themselves excluded from mainstream feminism both on the internet and ‘in real life.’ Amara notes that many women tend to encounter feminism at university. Women who do not go on to further education face a barrier when attempting to engage with those academic debates that drive feminism.”(1)

So if academia is where the debates that are driving feminist theory are occurring, what does that academic debate look like if she is not white?

“Ignoring the difference of race between women and the implications of those differences presents the most serious threat to the mobilization of women’s joint power. Refusing to recognize difference makes it impossible to see the different problems and pitfalls facing us as women. Some problems we share as women, some we do not. You fear your children will grow up to join the patriarchy and testify against you, we fear our children will be dragged from a car and shot down on the street, and you will turn your backs upon the reasons they are dying.”(2)

Another theorist surmised, “Black women’s own views on rape can’t help being shaped by the actions of their white sisters. That is to say, that Black people cannot use a white supremacist justice system without perpetuating white supremacy.”(3)

These other theorists have long been critical of weaponizing process. This was recently on display in California. There, a recall movement was taking place to remove a judge for imposing a light sentence on a Stanford University student for sexual assault. The most vocal opponents to the recall were Black women. The most visible, former California Supreme Court justice, Janice M. Brown.(4) She argued, that punishing a judge for exercising discretion will only harm defendants of color. Statistics bear this out. Per 100,000 of the Black and Brown population in 2010, 6,000 were imprisoned; while per 100,000 of the white population in 2010, 640 were imprisoned.(5) Black and Brown persons of color are in front of Criminal Court judges far more than whites.

Another theorist called this type of feminism Carceral Feminism, and rails against the federal passage of the 1999 Violence Against Women Act (VAWA). “Many of the feminists who had lobbied for the passage of VAWA remained silent about countless other women whose 911 calls resulted in more violence. Often white, well-heeled feminists, their legislative accomplishment did little to stem violence against less affluent, more marginalized women.”(6) And a further theorist noted, “If women do not share ‘common oppression,’ what then can serve as a basis for our coming together?”(7)

These other feminist theorist, the marginalized, had observed that the debate was about rational-feminism versus emotional-feminism. This feminist theorist argues that rational-feminism must prevail over emotional feminism.

“The sisterhood line as currently practiced (but not in the 1960s and early 1970s) is white, bourgeois, sexist propaganda. Women just turn around from seeking approval from men that they never got; to demanding unconditional approval from women. They put each other on a pedestal and imagine each other to be flawless goddesses.”(8)

This same theorist argues, the root of emotional feminism is nothing more than a chauvinist plot to keep women marginalized and caught up in their emotions, rather than applying her faculties of reasoning.

“The root of this is the patriarchal socialization of women to restrict themselves to the sphere of feelings, while letting men develop the rational faculties necessary to wield power. Women are taught to read romantic novels, major in English, or maybe psychology, if the women seem like they are getting too many scientific ideas.”(9)

Is the rallying cry, “I BELIEVE HER”, the death nails to due process? Is process going to be sacrificed at the alter of gender politics? Is the new standard for America’s fathers, brothers, husbands, and sons “GUILTY, UNTIL YOU CAN PROVE YOURSELF INNOCENT”?

One theorist’s 1992 writings used the 1986 rape convictions of white women by the race of their rapist. 68% of their rapists were white; 22% of their rapists were Black; 5% were Other; and 2% of their rapists were Mixed. The theorist begs feminists to take a serious look at the 22% of white women raped in 1986 who were raped by Black men.

The theorist goes on to state a general proposition that all feminists can generally agree upon, “Three-quarters of all rapes are by acquaintances, and the figures on rape should reflect that women are raped by the type of people they date.”

In 1986, 12% of the men available to white women were Black. However, no where near 12% of the sex white women were having were with Black men. Thus the 22% of white women’s rapist being Black is disproportionately high. Furthermore, the population of white women was more than six-times the population of Black men. For every [1% of] white women who had a sexual acquaintance with a Black man, it takes [6% of] Black men to be those acquaintances. Out of those acquaintances charged with rape, the 22% figure means a very high proportion of Black men generally are convicted of rape of white women compared to white men.

The theorist takes note, up to this point, the figures have been examined from the perspective of the rape victim. But taken from the Black man’s perspective, white women are a large group of the American population, while Black men are a relatively small one. For Black men, 63.3% of their rape accusers were white women. If Black men had 63.3% of their sexual interactions with white women, then the accusations might be fair, but this was far from the case.

The theorist surmised we could get an idea of how skewed the accusations were looking at “interracial dating.” The theorist could not give a figure for what percentage of the dates people went on were interracial. Instead, the theorist surmised we could guess that it was similar to the figures for the percentage of people in interracial marriages. Black men married to white women accounted for 0.3% of total marriages in the United States as of 1989. In 1989, less than 4% of Black married men were married to white women, so we estimate that less than 4% of Black men’s dating were with white women. Hence, less than 4% of accusations faced by Black men should come from white women. Instead, the figure was 63.3%.(10)

The history of that story is the other side of sexual politics here in America. An America where the LAPD and Oakland-PD have had 100s of convictions overturned, due to incredibly, credible, false testimony of police officers. A land where 15% of the Black population in Tulia, Texas, were incarcerated by the incredibly, credible, testimony of a single racist officer.(11) According to the San Quentin News, 139 prisoners nationwide were exonerated in 2017.(12)

Credible demeanor in testimony has never been foolproof. The National Academy of Sciences, along with the FBI, have noted eyewitness testimony is the most unreliable testimony.(13) While this would obviously be in reference to witnesses testifying against strangers, but the juries which wrongly convinced these defendants were doing so from witnesses who were credible and convincing in their testimony. In 2013, 153 of the 268 exonerations by the Innocence Project were for rape.(14) 72% of all DNA exonerations are people of color. Of the 72%, 61% are African Americans.(15)

Theorists can clearly see, “I BELIEVE HER,” with its lock-in-step demands of sisterhood, is classic emotional-feminist theory. What is the emotional-feminist rationale to do away with “INNOCENT, UNTIL PROVEN GUILTY”? Nor could emotional-theorists surmise they are not doing away with this unitedly, American, idea. […] “I BELIEVE HER” is a presumption-of-guilt, rather than the presumption-of-innocence that the rational feminist are standing for, and for years have been arguing against the emotional-feminist assault on process. While emotional-feminism, with its well-heeled, racial, social, and economic status is having the loudest voice, their marginalized sisters, whose rational-feminist approach, is the only voice of hope for fathers, brothers, husbands, and sons; a hope the other side doesn’t win the debate.