Another tough year for due process

The fury against Brett Kavanaugh showed how fragile legal fairness is today.

Luke Gittos
Columnist

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2018 was another tough year for due process. In September, the Senate confirmation hearing for Brett Kavanaugh, President Trump’s nomination for the Supreme Court, degenerated into a farcical public investigation of an allegation made against Kavanaugh by philosophy professor Christine Blasey Ford. Ford alleged that when she was 15 and Kavanaugh 17, he had lied on top of her and sexually assaulted her at a house party.

Her claims gave new life to the #MeToo movement. There were widespread demonstrations against Kavanaugh’s appointment. Protesters carried banners declaring their belief in the allegations. Senator Jeff Flake reportedly changed his mind about launching a new FBI investigation into the allegations when he was accosted by protesters in a lift outside the hearings: they accused him of telling women that rape does not matter and demanded that he vote against the appointment. Kavanaugh’s appointment was eventually confirmed.

Some commentators did point out that it undermined due process to hold a public investigation of an old, unevidenced allegation. The Wall Street Journal said the Kavanaugh case turned ‘American justice and due process upside down’ by requiring Kavanaugh to prove his innocence rather than the accuser to prove his guilt. Others pointed out that given that most of the senators hearing the case knew Kavanaugh personally, there was little chance of the allegation receiving an objective hearing. Others, including some senators, publicly declared their belief in Ford even before they had heard her testimony.

There were others who argued that Kavanaugh was not entitled to due process since the senate hearing was more comparable to a job interview than a formal criminal trial. The Washington Post published a piece saying the normal standard of proof – ‘beyond reasonable doubt’ – did not apply and that senators were merely being asked to provide ‘advice and consent’ on the presidential nominations for the Supreme Court.

This last argument in particular highlighted the potential long-term dangers of the Kavanaugh case. If we allow criminal allegations to be ventilated in forums that lack objectivity and impartiality, then due process will be finished.

The hearing was described variously as a circus and a sham by both Kavanaugh supporters and detractors. We have to make the case that wherever a hearing on a criminal allegation takes place, whether it’s in the Senate or a criminal courtroom, the standard protections must apply. Formality and legal standards when considering something as serious as sexual assault really do matter. They matter both for a complainant, who deserves to have the allegation ventilated impartially, and for the defendant, whose life and reputation is on the line. The point of due process is to afford defendants dignity and protection from public scorn while their case is ongoing, and to give complainants a formal and fair environment for their allegation to be heard.

If we lose our respect for due process, or for careful consideration of the merits of the evidence against a defendant, it will have an impact on everyone facing a criminal allegation – not just high-profile US judges. The best thing about the Western system of justice is that both a US Supreme Court nominee and someone who works in a low-paid job can expect the basic protections afforded by our legal systems: namely, the presumption of innocence and a respect for due process. We have to fight to defend these protections in 2019.

Luke Gittos is a spiked columnist and author of Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. (Buy this book from Amazon(UK).

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