Can Justice and Sex Mix Well?

Education Justice Wade's World

            Marble Falls      What is it about sex and the “he say, she say” when it breaks bad that makes justice so hard to achieve and fraught with misunderstanding and contention?  That’s part of the question that civil rights lawyer Alexandra Brodsky tries to answer not only in her career, but also in her book Sexual Justice:  Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, which we discussed on Wade’s World recently.

Brodsky drifted into this specialized field as an undergraduate, helping found an organization at Yale called Know Your IX, thinking as she told me, that this was just a problem on her campus.  She quickly found that this was an issue in lots of campuses for lots of women.  Becoming a lawyer, she now regularly represents victims of sexual abuse trying to find justice within their institutions, be they universities or whatever.

Her experiences have led her to an interesting, common sense set of recommendations for how justice can be secured by both victims and the accused.  It starts with getting rid of exceptionalism.  Too often, the kneejerk conclusion by too many institutions, when these problems happen on their watch, is that they need a separate set of protocols and procedures to determine the facts and administer either remedies or penalties.  She argues that a good procedure and process works well for all manner of infractions and harms, and creating parallel and exceptional procedures in this area leads to less justice and more confusion.  She also believes in handling some situations internally.  In cases involving sex turning them over to the police and judicial system often leads to even less justice.   Add transparency, understand that this is about civil rights, strengthen all procedures while integrating the ability to handle sexual issues within them, and know when to handle the issues internally, even with mercy for all, and maybe, just maybe, a just system can be created to handle these issues and others.

Brodsky worries, rightly, about these issues becoming too politicized and destroying both reasoned response and due process at the same time.  She is critical of the way that the Obama administration’s “Dear Colleague” letter from the Department of Education indicating that they were going to take Title IX protections seriously was distorted as somehow only benefiting the victims.  She is horrified at the heavy-handed way the DOE under Trump’s Secretary Betsy DeVos changed the rules to favor the accused, even creating conditions that would allow the victim to be interrogated in a quasi-legal process that was more Judge Judy than about justice.

Title IX is now fifty years old and has survived in a way that some other measures haven’t, but that doesn’t mean that there is harmony and consensus when sex and justice come together.  Age old prejudices that men are the ones that need protection from scheming women infect the system in too many institutions making women doubly victims, first from the abuse itself, and then from the mismanaged justice system.  No wonder that so many women suffer in silence allowing some predatory men to thrive.

Brodsky makes the case for a real, even-handed justice system that would ensure fairness to all parties.  Her recommendations make sense, but I fear she is still a voice in the wilderness, and as long as the system is so flawed, I find my bias is strongly in favor of believing the victims and assuming the men did wrong, until I’m convinced there’s a system is in place that proves otherwise.  I know that’s not fair.  Brodsky would scold me, and she would be right, but I’m sorry, a broken system forces all of us to look at this with jaundiced eyes until it’s fixed.