Why ‘Due Process’ Isn’t a Solution to the Cuomo Allegations

Last week, WNYC radio’s Brian Lehrer said he had noticed a generation gap in responses to Governor Andrew Cuomo, who a growing number of officials have urged to step down on charges of sexual harassment. Teacher had heard a lot from senior callers who fiercely defended the governor of New York. Some thought the allegations themselves weren’t a big deal; others said politicians wrongly called for Cuomo’s immediate resignation, as it would deprive the governor of “due process”. Meanwhile, Teacher received far fewer calls from younger New Yorkers who he sensed might be less willing to defend Cuomo. The division seemed to be so pronounced that teachers dedicated a second segment specifically to the topic crowd younger listeners call.

The generational differences, however, are not as simple as pro and anti resignation. The more noticeable trend in recent survey the New York voter is that younger people are less sure of what they are thinking. Voters under the age of 55 are slightly more likely than their older counterparts to say that Cuomo should step down now. But this younger bloc, especially those aged 18-35, are far more likely than older voters to say that they just don’t know whether Cuomo should step down right away – or whether he’s molested someone. The 55+ category is most likely to say they believe the allegations. They are also most likely to say they don’t.

There are explanations for this trend that do not lead to dramatic generational differences. Older voters are usually more likely to be on the cutting edge of the news. In fact, more of them told respondents that they had heard a lot about the allegations against Cuomo. Perhaps young people as a group are insecure because we just don’t know what is going on. Maybe trust comes with age.

However, I feel inspired to speak up for uncertainty because I think this is an underrated position here. To put my cards on the table: I am a 31 year old sexual harassment attorney. Personally, I think Cuomo should step down now based on the reports he doesn’t deny, including grossly inappropriate research into the sexual history and preferences of a female subordinate – textbook sexual harassment. But I am not going to fake the question of how best to address the allegations against Cuomo and what timeline and what type of investigation it is easy to use.

Many people – including senior callers from Lehrer’s show – are pretty sure of the solution: “Due Process”. But what exactly does that mean? For legal reasons, due process is constitutional protection against deprivation of life, liberty, or property by the government. Cuomo, of course, has no due process law lest people ask him to resign. However, we often use the term to appeal to the ethical obligations of fairness that have shaped and are shaped by our legal rules, even when they are technically not applicable. That can be useful. For example, even if private employees are not protected by the constitution, calling for the basic principles of due process – dismissal and the opportunity to be heard, an impartial decision-maker – can be clarifying and rhetorically effective.

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