The #MeToo movement has been a welcome corrective to a society that for too long has ignored substantiated accusations of sexual misconduct. Whether in the workplace or in the personal realm, sexual assault – including harassment, abuse, battery, and rape – should never be tolerated.
But, at the same time, in our rush to correct a culture and society that has failed to protect women (and men) from sexual misconduct, we need to be careful about doing away with the principle due process.
Due process at root is the concept that a person’s liberty (or property interest) cannot be taken away without some sort of adjudicatory process in which the accused is given notice of the accusations made against him or her and the ability to be heard before a neutral arbiter (often a judge) who issues a judgment.
In the criminal context, due process in North Carolina means that the charge must first be presented to a magistrate before an arrest warrant can issue, must next be presented to a Grand Jury before an indictment can be returned, and must finally be put before a jury of twelve citizens before a verdict can be returned.
Due process also requires that the accused have notice of the specifics of the accusation and, also, receive the discovery – police reports, interviews, notes, and other data – collected by investigators during their inquiry into the accusations.
Defense of a rape or sexual offense depends on the nature of the accusation and the accused’s explanation. Where the accused asserts his or her complete innocence, it is never too soon to begin preparing a response, to include interviews with character witnesses, the use of a private investigator to track down details surrounding the alleged encounter, and, even, the use of a polygrapher to help make the case for innocence.