A far cry from the folly of youth

Bay of Plenty Times - - NATION -

Jus­tice is a fickle friend. It favours the for­tu­nate. De­spite our in­ten­tions — our hon­ourable hopes for a sys­tem that will re­bal­ance the scales when things go badly awry — the jus­tice sys­tem, as a hu­man in­ven­tion, is as fal­li­ble as all things hu­man.

But still, we must cling to it, as the al­ter­na­tive — law­less ap­a­thy — isn’t an al­ter­na­tive at all.

As such, it be­comes even more im­por­tant that the peo­ple tasked with the re­spon­si­bil­ity of up­hold­ing the frame­work of so­ci­etal sta­bil­ity should be as prin­ci­pled and skil­ful as pos­si­ble.

The law, that sup­pos­edly dis­pas­sion­ate in­stru­ment of right and wrong, is only as righ­teous as its of­fi­cers. Which is why the idea of a Supreme Court jus­tice tar­nished by mul­ti­ple sex­ual ha­rass­ment and as­sault al­le­ga­tions in any ju­ris­dic­tion is so dan­ger­ous.

Hy­po­thet­i­cally, if a so­ci­ety ap­points judges who have es­caped jus­tice and thwarted the law, the sys­tem be­comes a sham. (More of a sham than it al­ready is, that is, when you con­sider the fright­fully low con­vic­tion rates for crimes of a sex­ual na­ture.)

An al­le­ga­tion is only an al­le­ga­tion. As cit­i­zens of de­vel­oped democ­ra­cies, we are en­ti­tled to a fair trial and the pre­sump­tion of in­no­cence.

As a hu­man rights sup­porter, I be­lieve that those rights are sa­cred, but what hap­pens when jus­tice over­whelm­ingly seems to flow in only one di­rec­tion? What hap­pens when the sys­tem that is sup­posed to pro­tect the rights of vic­tims ends up shield­ing per­pe­tra­tors?

When an es­ti­mated six sex of­fend­ers in 1000 land in prison (in the United States) while the oth­ers walk free, it seems over­whelm­ingly ap­par­ent to me that the sys­tem has failed abysmally.

It is against this back­ground that Brett Ka­vanaugh has been put for­ward as a can­di­date for the va­cancy left by Jus­tice Kennedy on the Supreme Court of the United States.

Judge Ka­vanaugh has not been con­victed of any crime. He has, how­ever, been ac­cused of sex­ual mis­con­duct dur­ing his younger years by (at the time of writ­ing) three dif­fer­ent women.

There will be many who feel un­easy about the idea of “un­proven” al­le­ga­tions im­pact­ing upon the rep­u­ta­tions of pre­sumed in­no­cent cit­i­zens. I’m among them.

Over the past decade, though, I’ve be­come more un­easy about the fail­ure of the sys­tem to re­li­ably de­liver jus­tice to vic­tims of crimes of a sex­ual na­ture. The emer­gence of the #MeToo move­ment is a di­rect con­se­quence of a fail­ing jus­tice sys­tem.

Over the past few weeks, I’ve heard ques­tions asked about whether an in­ci­dent that hap­pened when a man was a teenager should fol­low him his en­tire life. I’ve heard mus­ings about whether “youth­ful mis­takes” should cost some­one their ca­reer.

Forcibly hold­ing some­one down, cov­er­ing their mouth and try­ing to ini­ti­ate non-con­sen­sual sex­ual con­tact with them could be char­ac­terised as many things, but a folly of youth is not one of them.

Other al­le­ga­tions against Ka­vanaugh in­clude try­ing to spike the drinks of vul­ner­a­ble young women for the pur­pose of gang rap­ing them. If such things can be swept un­der the rug with­out con­se­quence, how can any teenage girl rea­son­ably feel safe?

Let’s be clear. Al­leged “youth­ful mis­takes” have not cost Brett Ka­vanaugh his ca­reer. To date, he has had an ex­tremely suc­cess­ful ca­reer. Un­til now, he had never suf­fered a sin­gle pub­lic con­se­quence as a re­sult of his al­leged “in­dis­cre­tions”.

That changed be­cause he has opted to ap­ply for a job as a one of the most pow­er­ful peo­ple in the United States of Amer­ica; a job that he will be of­fered for the rest of his life. The kind of job that re­quires not only in­cred­i­ble skill from a can­di­date, but im­pec­ca­ble, un­im­peach­able char­ac­ter and judg­ment.

What if a 17-year-old mur­dered some­one, and the crime was only dis­cov­ered many decades later, when he had gone on to live an ap­par­ently moral life? Should the crime of tak­ing some­one’s life be ig­nored, be­cause the crim­i­nal who com­mit­ted the crime had since man­aged to make some­thing of his life, or should jus­tice pre­vail?

Sex­ual abuse is not mur­der, but it is a form of tak­ing a life. When sex­ual abuse oc­curs, your heart con­tin­ues to beat, but the life that you would’ve had — one free from trauma, one in which your most in­ti­mate bound­aries hadn’t been vi­o­lated — is gone. You sur­vive. You work through things as best you can. But you are not the same.

A part of you cracks, and while you can re­pair it and grow strong again, that scar sel­dom dis­ap­pears.

The grav­ity of the ac­cu­sa­tions lev­elled at Judge Ka­vanaugh means that they can’t sim­ply be swept un­der the rug. A process of ro­bust in­ves­ti­ga­tion by the FBI is the only way to pro­tect the al­ready com­pro­mised cred­i­bil­ity of the Supreme Court.

If Ka­vanaugh is nom­i­nated and con­firmed with­out a com­pletely clean record, the Supreme Court risks look­ing like a joke, par­tic­u­larly given the pres­ence of Judge Clarence Thomas, who was fa­mously ac­cused of sex­ual ha­rass­ment by Anita Hill in 1991. What mes­sage is sent to vic­tims of sex­ual as­sault and ha­rass­ment, if two of the most pow­er­ful ar­biters of jus­tice in the en­tire coun­try might have vic­timised peo­ple them­selves?

Po­lit­i­cally, the stakes are high. Pol­i­tics and the courts are in­evitably in­ter­twined in most coun­tries, but in the United States, politi­cians and judges may as well be the same thing.

The same bat­tles are fought in court­rooms as are waged on Capi­tol Hill. Repub­li­cans and Democrats, those two sides of the same coin, are locked into an in­ter­minable stoush to im­pose their world views upon each other.

Jus­tice, like ev­ery other power struc­ture in the modern United States, is cer­tainly not im­par­tial. The ap­point­ment of Ka­vanaugh risks more than just po­lit­i­cal back­lash, how­ever.

If a Repub­li­can pres­i­dent who has him­self been ac­cused of sex­ual as­sault by mul­ti­ple women is able to in­stall on the bench a jus­tice with mul­ti­ple sex­ual mis­con­duct al­le­ga­tions to his name, he may as well de­clare open war­fare against women. He won’t win. Hell hath no fury like a sis­ter­hood scorned.

PHOTO / GETTY IM­AGES

Al­leged “youth­ful mis­takes” have not cost Brett Ka­vanaugh his ca­reer.

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