It was 40 years ago that Judge J. Skelly Wright wrote a decision for the U.S. Court of Appeals for the D.C. Circuit — Judge Kavanagh's Court — overruling the corroboration requirement in sexual assault cases. "This one's for you," he said, after reading the only bench memo I ever wrote for him. Three judges joined the opinion, but all nine on the court signed on. It's my heart, and his compassion, you'll find in that opinion. I had been raped three years earlier, and by the time we were done, every judge on the court knew it. And respected that.
The gist of my argument to the judges 40 years ago was very simple: I was raped; I told the truth; but nobody saw it. No one ever does. People don't commit sexual assault in front of others who are sober enough and/or independent enough to get involved. If the man had been caught, a jury should have had the chance to hear me.
The corroboration rule was one of the common law's answers to the male rape fantasy — the fantasy that he will be wrongly accused and unable to defend himself, because rape is a charge "easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." That was the English Lord Chief Justice Sir Matthew Hale. In the 17th century. One hundred years later, a much-cited Yale Law Journal article argued that women enjoy the struggle (the pseudo-Freudian view), and the Columbia Law Review was defending the corroboration requirement, saying, "Since stories of rape are frequently lies or fantasies, it is reasonable to provide that such a story, in itself, should not be enough to convict a man of a crime." That is what we set out to change by getting rid of a requirement that was applied only to the victims of rape.
Cut to today, when Republicans are reportedly convinced by the fact that the FBI could not find any witness to corroborate Dr. Christine Blasey Ford's account of her sexual attack.
Dr. Ford had a chance she did not seek. She testified truthfully. She has been attacked viciously.
What more do you want from her? What more could an honest woman be expected to say about what a drunk boy did to her when she was 15 years old? What kind of a message is the Senate sending to victims?
She says his friend saw. His friend, who did not want to testify and face the Senate, no doubt told the FBI that he did not witness any such incident. I'm sorry to say, but I hear that a lot from frat boys. Of course they didn't witness anything. They couldn't see straight. Mr. Kavanaugh's friend actually wrote a book about being blind drunk as a teenager, which I am sure he was hoping not to have to admit to the senators on television. Lucky for him, the Republicans don't want to have to ask.
And the presumption of innocence?
The presumption of innocence is a pure fiction, because a defendant can't be arrested, much less stand trial, without probable cause. And an anonymous tip may give rise to probable cause; you can be stopped and searched, your property seized, so long as there are enough indicators that it is reliable.
We extend the presumption of innocence to criminal defendants not because we think they are innocent (very few of them are) but because those facing the loss of life and liberty are entitled to force the state to make its case.
That's what the presumption of innocence requires: proof for the deprivation of liberty, not a yes vote on confirmation.
The question for Judge Kavanaugh is not whether he should be punished but whether he should become the most powerful judge in the world, the fifth vote on a divided court in a country founded on the principle of respect for the rule of law.
The man who entered that hearing room last week blamed everyone for everything, anger and defiance radiating from his every pore. He will never live down that picture, and neither will those who are forced to vote for him.
All he had to do was say he did not remember and was sorry for her suffering; that he drank too much and played too hard; that he's a father now and these charges have torn him apart; that what he thought was cool was stupid and reckless; that when he was young and stupid, he was very stupid; that he is not that young man anymore.
A different kind of man would have said that, with sadness and regret, not anger and defiance. That's the kind of man who belongs on the Supreme Court.
To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.
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