The history of the prosecution of sexual assault in America is a history of the testimonial disenfranchisement of women. Their word has never been enough.
American laws once allowed a husband to rape his wife, once required a report of sexual assault to police within three months, once required additional witnesses or other evidence beyond the survivor’s testimony and once urged juries to doubt a woman’s testimony about what occurred in private. Every one of these laws prevented or discounted the testimony of women, codifying just one aspect of systemic, second-class citizenship. Every one of these laws enabled the sexual assault of women. Thankfully, we have ended many of these laws. There is more to do.
In order to avoid fairly exploring Blasey’s allegations, Judge Kavanaugh’s partisans have a two-part trick.
Because we have ended these laws, some only recently, American prosecutors now every day use due process to convict people who commit sexual assault based on the testimony of one credible survivor. One witness whose testimony is believed by a jury or a judge can meet the high standard of proof beyond a reasonable doubt in a criminal case. This is crucially important law. Any other rule enables crime wherever and whenever there are no additional witnesses. The standard of proof is necessarily high because a person’s freedom is at stake.
What is now at stake for Judge Brett Kavanaugh is entirely different and much less than his freedom. He is a job applicant seeking a position of vast power and public trust that he would like to exercise for the rest of his life. He is asking to wield this power over us, his employers, including in matters involving women and their consent.
Proof of a crime beyond a reasonable doubt has nothing to do with job applications, even his. Like any job applicant for a crucial position of public trust, Kavanaugh needs to show that his judgment and moral character are truly exemplary, or he doesn’t make the cut. There are many other possible hires who are equally or more qualified in law but whose histories raise far fewer concerns. And professor Christine Blasey Ford’s allegations need to be fully explored without pre-judgment because they are concerning.
In order to avoid fairly exploring Blasey’s allegations, Judge Kavanaugh’s partisans have a two-part trick. First, they falsely frame this important job interview as if it were a criminal proceeding in order to invent an unduly high burden of proof they claim Blasey must meet. This is nonsense; it is the applicant, Judge Kavanaugh’s, burden to prove he is worthy.
Second, Judge Kavanaugh’s partisans obliterate the truth-seeking procedures of a criminal matter that make meeting high burdens possible. Requested documents will not be provided. Requested investigation will not be done. A key potential eyewitness and friend of Judge Kavanaugh, Mark Judge, will not be subpoenaed, much less testify, about his claimed lack of memory. Blasey’s witnesses to her prior reports of the assault are precluded from testifying. Days before the hearing, some fact finders reported they already believed Judge Kavanaugh, a pre-judgment that would immediately disqualify them from serving on a jury or as a judge in any criminal matter.
No gender should be presumed to own the truth.
The trick is then complete when Judge Kavanaugh’s partisans remind us daily that Blasey’s allegations are just a “he-said, she-said” matter, as if what “she said,” no matter how credible, is legally insufficient. That is not the law. That is not our belief in equality as modern Americans. We should not go back in time with them.
As proud Americans, we need to move forward, away from our history of testimonial disenfranchisement of women. No gender should be presumed to own the truth. When Blasey and Judge Kavanaugh offer testimony Thursday, we must reject pre-judgment, insist on fair procedures and have open minds, focused on the question of whether or not Judge Kavanaugh has shown that he and his character are so exceptional that he is worthy of our hiring him for the U.S. Supreme Court.
The alternative is another generation of young women and girls who learn that, even before they speak, their word will never be good enough and another generation of young men and boys who learn that sexual assault is not serious enough to affect their futures.
Larry Krasner is the elected district attorney of Philadelphia. He has been a trial lawyer in criminal justice and civil rights for over 30 years.