Jacques: No justice in guilt by accusation

Ingrid Jacques
The Detroit News

Pretty much everyone has an opinion whether Judge Brett Kavanaugh is guilty or innocent of a sexual assault that allegedly happened three decades ago when he was in high school.

That’s sort of alarming, isn’t it? Because no one actually knows what happened, with the exception of those directly involved. It’s a he said, she said situation.

The court of public opinion is all too quick to issue its judgment, regardless of whether it knows the facts. And it doesn’t require the same levels of evidence as in a court of law. There’s no need to prove anything beyond a reasonable doubt and there’s no presumption of innocence.

In this Sept. 4, 2018, file photo, President Donald Trump's Supreme Court nominee Brett Kavanaugh is sworn in before the Senate Judiciary Committee on Capitol Hill in Washington. Both parties are grappling with tremendous political risks in the midst of an increasingly messy Supreme Court fight.

Raising doubt is enough to convict.

In this court, perception is reality. And you can forget about due process, which doesn’t apply -- at least in a legal sense -- to these Senate confirmation hearings on Kavanaugh’s Supreme Court nomination.

“It’s not a criminal courtroom,” says Eve Brensike Primus, a professor of law at the University of Michigan Law School. “It’s a different proceeding here. The senators can do whatever they want.”

Christine Blasey Ford

There’s no question Democrats are using the moment for their own political grandstanding and to delay a vote. It’s less clear what Kavanaugh’s accuser, California professor Christine Blasey Ford, hopes to gain from going public with her story that when Kavanaugh was 17 he pinned her down at a party and tried to undress her.

Ford may be a credible witness, but her accusation against Kavanaugh has plenty of holes and raises more questions than it answers. She is unable to remember specific details, such as where the incident took place and exactly when it happened.

That’s the risk of letting so much time pass before bringing an accusation to light. Time clouds memory. This is why statutes of limitations exist.

One thing is clear: Once such an accusation comes to light, it does irreparable damage to the reputation of the accused -- regardless of its veracity.

It doesn’t matter that Kavanaugh has demonstrated a sterling character his entire career and that dozens of women who have known him personally and professionally are vouching for him.

The #MeToo crusade has created an environment in which an accusation of harassment or assault is equated with guilt and the need to eviscerate the accused’s reputation and career.

Some men have deservedly been called out. Others have been wrongly harmed.

“These are some of the challenges within the larger #MeToo movement,” says Primus. “An accusation can effectively destroy someone’s career.

“You want to make sure that the accusation is taken seriously, but at the same the time, you don’t want a mere accusation to take away someone’s livelihood.”

Primus says she thinks an FBI investigation, which Ford has requested, would be the best way to determine what happened and would be most fair to both Kavanaugh and Ford.

GOP senators aren’t so sure and are determined to go forward with a hearing on the accusation Monday.

As South Carolina Sen. Lindsey Graham tweeted Wednesday: “Requiring an FBI investigation of a 36-year-old allegation (without specific references to time or location) before Professor Ford will appear before the Judiciary Committee is not about finding the truth, but delaying the process till after the midterm elections.”

Women who may see Ford’s accusation as a win for #MeToo should also consider the precedent it could set.

In an excellent column in City Journal, Kay S. Hymowitz lays out what’s at stake: “Men and women are not angels. Someday a brilliant, highly experienced, well-regarded woman may well be sitting in Kavanaugh’s seat and be accused at the zero hour and after interminable vetting of, say, stalking a former boyfriend or snorting cocaine when she was going through a bad stretch in high school. Then what?”