Our legal system is based on the premise that a person is innocent until proven guilty: Ei incumbit probatio qui dicit, non qui negat – the burden of the proof lies upon the one who affirms not the one who denies. This has been a basic tenet of our criminal justice system since the Supreme Court decision in Coffin v. United States, 156 U.S. 432 (1895). The Court noted the principle dates back to Roman law, quoting Trajan, “better to let the crime of a guilty person go unpunished than to condemn the innocent.” It is a matter of fairness due to the possibility of false allegations being made.
I have read quite a bit about the nomination and the accusations leveled against the nominee from a variety of sources. I tend to concentrate my reading on Reuters, which is generally considered to be one of the least biased sources. Additionally, l watched Judge Kavanaugh’s statement and the first part of his questioning live. I watched an unedited video of Dr. Ford’s statement and the first part of her questioning. I didn’t watch the complete questioning of either party due to my distaste for the partisan nature of the process.
I don’t know if Dr. Ford is telling the truth. She sounded credible. There were other people she identified as being present at the time this incident occurred and none of them seem to remember it happening. That doesn’t mean it didn’t happen. I can only imagine myself in her place if it did happen. Obviously, the assault would have been awful. Would I put myself in her position of coming forward at this time, knowing the amount of public scrutiny I was bringing upon myself? I can’t say, but I sincerely doubt it. I’ve heard people ask what reason she has to lie. We always have our reasons, and there’s much at stake in this nomination.
I also don’t know if Judge Kavanaugh is telling the truth. He sounded credible. Other allegations bring his conduct into question. Many have focused on his demeanor during questioning. I’ll admit that he may have lacked “judicial temperament,” but he wasn’t acting as a judge. He was a witness in a judicial proceeding in that moment. I can only imagine myself in his place if it didn’t happen. How would I act? I do know this – I would defend myself to the end, and I would be angry. Does he have a reason to lie? Sure he does, anyone would in the face of such allegations. There’s much at stake for him regardless.
I am aware of the prevalence of sexual assault in our culture. I understand that women are hesitant, often terrified, to come forward because other women have been shamed and ridiculed instead of receiving justice. Those are serious problems that need to be addressed. Does that mean that we should assume this woman is telling the truth? Does her allegation mean that Brett Kavanaugh is unfit to serve on the Supreme Court?
I don’t know the answer to those questions, but not knowing the answers and choosing to believe a person is innocent until proven guilty doesn’t make me a misogynist. That seems to be the general implication out there. I realize this isn’t a criminal proceeding, but it is a criminal allegation, and it’s being tried in the court of public opinion which has no rules. Where’s the fairness in that?