For those of us in the Criminal Defense Bar who routinely defend clients accused of every nature of sexual assault, the constitutional, procedural, logistical, and ideological contretemps arising from the accusations Professor Christine Blakely Ford has leveled against DC Circuit Court Justice Brett Kavanaugh in the context of his confirmation hearings for the US Supreme Court confirms all our fears, concerns, and reservations about the impact of movements such as #METOO and #TIMESUP on core Constitutional principles including due process, the presumption of innocence, and the inherent right to a fair trial. To be sure, the antecedents were already there before these powerful social movements came into public consciousness; one glaring example being the Obama Administration’s Title IX mandates in which the burden of proof was flipped backwards with the accused (mostly males) being presumed guilty and all but required to prove their innocence, the right to confront and cross examine one’s accuser eliminated, and the standard of proof reduced to a mere preponderance of the evidence (“more probably than not”; i.e. , if even by one percent).
However, there is no doubt that where we stand right now presents the most compelling evidence of how these movements have assaulted and eroded the constitutional safeguards we are all guaranteed. How else does one explain an elected U.S. Senator (who presumably was also supported by males ) publicly stating “that it’s time for all males to shut up”; or a not-yet elected but presumed soon-to-be Congresswoman from Massachusetts unequivocally stating “ I believe her” before the full details of Dr. Ford’s accusations have been revealed, before she has spoken publicly, and/or while important details such as date, time, and place are apparently lacking; or another U.S. Senator openly asserting “ I believe her because she has asked for the FBI to investigate” (while ignoring the equally relevant fact that she has also hired two attorneys , one of whom is reported to have a defined track-record as a political activist). These are current and future policy makers making such statements; before a single word of testimony has been adduced or a moment’s worth of public hearing has been conducted!
More alarming than this is the fact that, like each of us, these are all prospective jurors. Such actions and comments make clear that to many today not only should our centuries old presumption of innocence be ignored and abandoned when it comes to judging the accused in sex crimes matters, but also that this core and fundamental Constitutional principle should also be (and likely has been) replaced with a universal presumption of credibility when it comes to the accuser. This is both remarkably dangerous and astoundingly unfair. It is also reflective of the precise point at which we have arrived. For any person concerned about fairness, justice, and equal treatment under the law, it also represents an uncrossable line of demarcation from which we must all vigorously push back.