Well, this particular battle is done. It started with the likelihood that Brett Kavanaugh would narrowly be confirmed to the Supreme Court, with all Republicans and a few conservative democrats voting for his confirmation and the vast majority voting against him on the basis of his judicial philosophy. It ended with pretty much that result. The struggle for what was effectively the votes of Senators Flake, Collins, Manchin, and Murkowski left us all emotionally exhausted, angry, and indignant. I have a lot of opinions about what happened as a person and as a woman that will stay between me and the ballot box for now. I do want to share some thoughts as an attorney, though.
I watched sadly over the past few weeks as really important legal concepts and protections were fallaciously weaponized in this conflict. I know this “as an attorney” appeal to authority only holds so much weight, as many other attorneys will disagree, but this is coming from my experience as (mostly) a criminal trial attorney. I have prosecuted sexual offenders and obtained convictions and failed to, I have vetted complaints of sexual violence and decided not to bring charges, I have represented people charged with crimes of sexual violence who were guilty, I have represented people charged with or under investigation for crimes of sexual violence who were innocent, and I have represented some where I honestly still don’t know what happened. I have represented victims of sexual violence in protective order and custody proceedings, men, women, and children; I have represented those charged with sexual violence in the same. It’s a complicated and heart-breaking world out there and those who try to simplify the issues are committing a grave disservice.
Due Process
Due Process as a legal principle is complicated in its application but as a concept is easy to comprehend. It means that if the government is going to take something that you have an interest in—life, liberty, property—then the process needs to be fundamentally fair. What is fundamentally fair depends on the interest protected.
If you are charged with a criminal offense that carries the possibility of a death sentence, due process looks a lot different than if you are given a parking ticket, because the interest at stake is so qualitatively different. Right to counsel, right to discovery, right to a jury trial, right to appeal, right against self-incrimination attach—and within those rights are secondary rights that vary according to the level of crime or liberty or property interest.
A job can be a property interest if a person can establish a legitimate claim of entitlement to it. If the entitlement is established, then due process attaches and one is entitled to notice, an opportunity to be meaningfully heard, and a decision supported by substantive evidence. Legally speaking, we are almost always dealing with termination or suspension or demotion here, because people don’t have a legitimate claim of entitlement to jobs they have not yet been given.
When people talked about “due process” in reference to Brett Kavanaugh, what they really should have said is they thought that anything the Senate does as a government body should be fundamentally fair. Using concepts of legal due process to express this was misleading, because Judge Kavanaugh did not have a legal entitlement to the job. The Senate process should be fair to all participants, including Judge Kavanagh, but I would not use the term “due process” to describe that fairness, because that carries legal significant that is inapplicable to this proceeding.
FBI Investigation
Judge Kavanagh had every right not to volunteer to subject himself to an FBI investigation and I thought it unfair that his refusal to ask for one was held against him. The FBI doesn’t hand out gold stickers—they investigate crimes and criminal allegations. The best result of an FBI investigation for Judge Kavanagh was the status quo. I will never hold against a person the decision not to volunteer to be the subject of a criminal investigation.
Presumption of Innocence
One aspect of due process is the presumption of innocence. As a legal principle, this applies only to situations where someone is charged with a crime. That does not mean alleged to have done something criminal in another proceeding—it means only charged with a crime by a sovereign and facing the possibility of a criminal conviction. Legally, there was no presumption of innocence applicable to Judge Kavanagh’s case. There is something to be said for giving all people the benefit of the doubt—that is one of the charitable virtues and part of fundamental fairness—but we should not call it the presumption of innocence.
There are varying presumptions and burdens of proof in the law. Oftentimes the burden, whatever it is, lies with the government or the party bringing the allegations. Other times it does not. My clients often face “presumptions against bond” or a search pursuant to a warrant is “presumptively valid” and the burden is on my client to prove it was not.
Also, I find it sad that it took allegations against a conservative judge to get a lot of conservatives touting the glories of presumptions of innocence, due process, and quantum of evidence. For years they have been busy being tough on crime, legislating mandatory minimums, expanding felonies, three-strikes-and-you’re out legislation, etc, all of which have made a laughing stock of these treasured rights. That is a subject for another day.
To the extent that we give everyone the benefit of the doubt in a fundamentally fair hearing, that goes to Dr. Ford as well as Judge Kavanaugh. For many he was presumed innocent of these allegations and Dr. Ford presumed guilty of perjury; for others, the opposite.
Corroborating Evidence
We heard so much about corroborating evidence and the lack thereof over the past few weeks. First of all, this wasn’t a criminal hearing and it is not clear what the legal standard for evidence should be. It is certainly not the criminal standard of beyond a reasonable doubt, but it is also not clear that it is preponderance of the evidence standard cited by Senator Collins. Whatever it is or should be, there is no rule of due process, even in a criminal case, that there must be corroborating evidence. It helps, but it is not required. For example:
A woman lives with her husband and his brother and one day while her husband is gone, the brother sexually assaults her. The brother denies it and there is no rape so no physical injury or DNA evidence—just her word against the brother’s. The legal, and sometimes biblical, standards for corroboration that have been touted by many over the past few weeks mean that this case can never be prosecuted, the woman could never obtain a protective order or money damages, could not get him evicted, and no one could refuse to hire him for any job on the basis of her uncorroborated allegations. This can’t be so.
Furthermore, the definition of corroborating evidence was too narrow. It seems people wanted a confession from Judge Kavanagh or another witness who said they saw it happen in order to believe there was corroborating evidence. That is not what corroborating evidence means. Corroborating evidence could be Kavanagh’s calendar that proved he hung out with some of the people that Dr. Ford recalled being present. It could be previous disclosures to her husband or therapist of sexual assault by a prominent judge who might one day be on the Supreme Court. It is any evidence that tends to show a witness’s opportunity for knowledge, confirmation of details of the witness’ testimony, however minor, and evidence that contradicts allegations of a witness’ motivation to lie. Corroborating evidence doesn’t have to be particularly compelling to exist and everyone from the president to the social media commentators need to stop touting this falsehood.
Believe Women
I’ll admit that while I think sexual assaults have gone under-prosecuted and victims of sexual assault under-believed and unnecessarily vilified, there are places in our society where we have over-corrected and denied due process to those accused of sexual assault. Mere allegations absent intense investigation and credibility determinations should not be sufficient to take away the liberty or property of the accused. And while some who say “believe women” may mean that every allegation of sexual assault is to be taken as true at face value and the man accused never seen in public again, I do not believe that is only understanding of this mantra or even the mainstream.
What “believe women” should mean is that every allegation of sexual assault should be taken seriously and vetted for its accuracy and the prominence, power, or reputation of the accused should not be imputed to the accused as a defense. For too long, women have been seen to be victims of hysteria and irrational impulses, so their claims of sexual assault have been as weightless on the scales of justice as a pile of balloons, whereas the insistence of a powerful man that the claims were false fell on the scales like a chunk of lead. “Believe women” is an important effort to restore the balance. It does not and should not, tip the scales in the opposite direction, making protests of innocence irrelevant and every allegation fatal.
FALLEN BRICKS 