Miltenberg: “Foreword to “In Defense of the Innocent,” Medium


As a Title IX attorney for the falsely accused for nearly three decades, I have a tremendous appreciation for the rule of law and that which we consider fair and proper justice. Integral to that obligation is that which we call due process. Due Process is both fluid and elusive, depending at all times upon the time, place, who, and what is at stake. We rarely recognize it until it is taken from us. It is when fairness and equality are denied, that we begin to understand the meaning and importance of it. A fundamental component of due process is the right to be presumed innocent when accused of an actionable offense.

Lawyers who find it their passion to protect the innocent face the ongoing challenge of advocating on behalf of those who appear to be on the wrong side of an emotionally or politically polarizing issue. We reassure ourselves that everyone has the right to be defended against all allegations, and those allegations must be proven by credible evidence, in a fair forum, by objective triers-of-fact, through a reasonable and equitable process. Simple it is not. Defending those accused of sexual assault or harassment is a daunting task for which the population at large has little patience or sympathy.

Among the most insidious attacks on due process comes by way of that which we now refer to as the Title IX movement. Generally, a force for good, giving a voice to the victims of sexual assault, it has been used unmercifully on university, college campuses, and in our workplaces across the country to demonize men accused of sexual assault and harassment. Often these allegations are made months, even years after the purported event, there is nothing that appears to be actual evidence, no eyewitness account, just allegations and speculation, followed by a vague and opaque procedure with byzantine protocols, all of which often ends before a tribunal that more often than not, seeks to maintain a pre-established cultural and political agenda, as well as its organization’s reputation. Thus, what little justice it serves is often self-serving.

Once the process has been completed, there is no independent avenue for appeal and sanctions run afoul of any sense of proportionality. There are none of the failsafe checkpoints that our forefathers ensured to protect against such abuses. The results are disastrous and life altering; attempted suicides, career paths and educations ripped away, replaced with an indelible, lifelong scarlet letter. Call it Kafkaesque, a star chamber, a labyrinth of lies and allusions from which there is no escape. In essence, what is created is a system built on bias and the quest for punishment, absent of any due process protections or presumptions of innocence. Left behind is an utter absence of impartiality and fairness, and ruined lives.

Until now, there has been little in the way of a guide for defending the accused in these cases, whether in our schools or workplaces, at either the administrative level or in the courts. It is critical that someone give a voice to the suffering and provide insight together with the strategy and tactics to combat this attack on fundamental reason and fairness. In the pages that follow, Mr. Ferraro does just that. Carefully and incrementally, he provides both the knowledge and tools necessary for the accused and his lawyer to ensure due process, and bring forth a proper defense. But perhaps most importantly, Mr. Ferraro has provided us all, the opportunity to help themselves and retain hope.

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