The limits of due process

Due process is not easy to define, although it's a concept that figures prominently in our country's constitutional scheme. Criminal defendants in particular are guaranteed due process by both the 5th and 14th Amendments to the Constitution, the former on the part of the feds and the latter the States.

Briefly, the government is empowered to deprive you of life, liberty, or property, but not without extending to you the benefits of whatever legal procedures are due. And while it's not easy to define due process, it's very easy to show examples of it.

Comes now the Wisconsin District I Court of Appeals with an extension of the benefits of process everyone can agree was due to the defendant. Arguably, well and way beyond what was due.

Anderson was convicted of two counts of third-degree sexual assault of a four-year-old girl. That assault, according to the victim's testimony, involved sodomy — in the literal sense, not in the euphemistic common law sense, which includes for activities aside from anal intercourse.

Apart from some very narrow exceptions, defendants facing sexual assault charges are not permitted to present evidence of the victim's past sexual activity. In this case, Anderson wished to present evidence that his mother had once observed the victim simulating cunnilingus on a Barbie doll.

Anderson claimed that, by not being allowed to have this evidence recorded, he was denied his own constitutional right to the presentation of an effective defense. That's correct: Anderson considered his mother's claimed observation a defense against charges he'd sodomized a four-year-old girl.

Such are the ways of the law.

In any event, the judge who presided over Anderson's trial — it was a bench trial, where the judge additionally assumes the fact finding role of the jury — discounted the credibility of Anderson's mother's testimony in favor of the victim's mother's claim that not only did the incident never take place, the child never even played with dolls.

As for the evidence that Anderson's right to due process was more than justly satisfied, the court's lengthy analysis of his purported defense is available here (.pdf; 12 pgs.).

And, of course, outside the referent legal paradigm, the notion that a four-year-old licking the crotch of a Barbie doll constitutes sexual activity in the first place is, to put it charitably, vaguely preposterous. Which is why this defendant may never claim he was not afforded due process pursuant to the court's extended treatment of what is, it seems to me, a pretty wild claim.

Accordingly, Anderson was deprived of several years' worth of liberty.