KA­VANAUGH AND THE AS­SAULT ON DUE PROCESS

The fact that rape is an in­cred­i­bly se­ri­ous charge all the more makes due process a ne­ces­sity. That’s not vic­tim blam­ing, it’s sim­ple logic and jus­tice.

Business World - - Opinion - JEMY GATDULA

“As­ser­tions are not truths un­til they are es­tab­lished as facts and cor­rob­o­rated with ev­i­dence.” So says con­ser­va­tive Fil-Am po­lit­i­cal com­men­ta­tor Michelle Malkin. And she’s right.

The bur­den of proof is al­ways on the one mak­ing the as­ser­tion and the con­sti­tu­tional right to pre­sump­tion of in­no­cence is such that the ac­cused is not even re­quired to de­fend him­self, the case against him ris­ing or fall­ing de­pend­ing on the of­fered ev­i­dence’s weight and cred­i­bil­ity.

That is the first main con­sid­er­a­tion peo­ple have to take when re­gard­ing the strange case of Brett Ka­vanaugh’s US Se­nate con­fir­ma­tion of his ap­point­ment to the Supreme Court by Pres­i­dent Don­ald Trump.

Trag­i­cally, the dis­hon­esty of liberals is such that they tried to taint Ka­vanaugh’s name as a rapist when, in fact, no rape al­le­ga­tions were made against him by Chris­tine Ford.

What Ford ac­tu­ally al­leged was that Ka­vanaugh — 36 years ago, he then 17 years old and she around 15 — drunk­enly pushed her down a bed, groped her, tried to take off her clothes, and put his hand on her mouth. A third per­son, Mark Judge, laugh­ingly jumped over the two, caus­ing all to tum­ble and sep­a­rate.

The ac­tual rape al­le­ga­tions came from the se­cond and third ac­cusers, the nar­ra­tion of facts of which are so ridicu­lous no sane per­son could ever take them se­ri­ously and no sane per­son did.

As for Ms. Ford’s al­le­ga­tions, the best sum­mary is that of Matt Walsh’s, in that Ford can’t re­mem­ber:

“- When it happened

- Where it happened

- How she got there

- How she got home

- Who was there - Con­ver­sa­tions she had even as re­cently as 3 months ago.”

But, as Walsh co­gently points out, such is not just a mat­ter of faulty mem­ory, they were out­right lies: “At a min­i­mum, her claims of cer­tainty are a lie. But it’s more than that. Ford’s story has changed to get around Ka­vanaugh’s de­fenses. These aren’t ran­dom changes in the nar­ra­tive. These are tar­geted and cal­cu­lated changes. If we are go­ing to ab­solve her of dis­hon­esty at this point, we must be­lieve that her mem­ory lapses are just co­in­ci­den­tally con­ve­nient, and that gaps in her story are co­in­ci­den­tally con­ve­nient, and the changes in the story are co­in­ci­den­tally con­ve­nient. The co­in­ci­dences are sim­ply too con­ve­nient and too nu­mer­ous to truly be co­in­ci­den­tal.

And Walsh is far from alone in con­clud­ing that. There’s Rachel Mitchell, an ex­pert pros­e­cu­tor on sex crimes, who found Ford’s al­le­ga­tions as weak and de­clared that “Dr. Ford iden­ti­fied other wit­nesses to the event, and those wit­nesses ei­ther re­futed her al­le­ga­tions or failed to cor­rob­o­rate them. xxx I do not think that a rea­son­able pros­e­cu­tor would bring this case based on the ev­i­dence be­fore the Com­mit­tee. Nor do I be­lieve that this ev­i­dence is suf­fi­cient to sat­isfy the pre­pon­der­ance-of-the-ev­i­dence stan­dard.”

Which leads us to what Malkin has long been point­ing out: that false ac­cu­sa­tions in­volv­ing sex crimes are “com­mon.”

In fact, Malkin says (cit­ing Brent Tur­vey, head of the Foren­sic Crim­i­nol­ogy In­sti­tute), the so­called “fact” that only 2% of sex crime al­le­ga­tions are false “‘has no ba­sis in re­al­ity.’ Pub­lished re­search has doc­u­mented false rape and sex­ual as­sault rates rang­ing from 8% to 41%. Savino notes that in his NYPD’s Man­hat­tan Spe­cial Vic­tim Squad, ‘our false re­port rate was in the dou­ble dig­its dur­ing all of my years. Some­times, it was as high as 40%.’ Tur­vey, Savino, and Mares make clear to stu­dents that based on the ev­i­dence — as op­posed to Face­book trends: ‘False re­ports hap­pen; they are re­cur­rent; and there are laws in place to deal with them when they do. They are, for lack of a bet­ter word, com­mon.’”

The fore­go­ing num­bers, po­lit­i­cal com­men­ta­tor Ben Shapiro em­pha­sizes, is “sub­stan­tially higher than the com­bined rate of false al­le­ga­tions of all other crimes, 1.16%, ac­cord­ing to a 2017 study.”

Pro­gres­sives in­sanely sug­gest that to in­sist on due process and the pre­sump­tion of in­no­cence is tan­ta­mount to dis­cred­it­ing women, goes against the #metoo move­ment, and de­val­ues the se­ri­ous­ness of rape.

But the fact that rape is an in­cred­i­bly se­ri­ous charge all the more makes due process a ne­ces­sity. That’s not vic­tim blam­ing, it’s sim­ple logic and jus­tice.

Thank­fully, Ka­vanaugh was con­firmed jus­tice of the US Supreme Court, al­beit by the nar­row­est of mar­gins: 50-48 vote by the US Se­nate.

Yet the fact re­mains that a se­ri­ous process and a de­cent man were re­spec­tively dam­aged and sul­lied by pro­gres­sives.

And thus the se­cond main con­sid­er­a­tion: op­po­si­tion to Ka­vanaugh was sim­ply ide­o­log­i­cal, not based on his com­pe­tence or in­tegrity. Pro­gres­sives were against his nom­i­na­tion the mo­ment it was an­nounced and way be­fore any sex­ual crime al­le­ga­tions sur­faced.

Put oth­er­wise: pro­gres­sives de­test Ka­vanaugh as they per­ceive him a tex­tu­al­ist or orig­i­nal­ist, one who ba­si­cally reads their con­sti­tu­tion as writ­ten, rather than ad­her­ing to the liv­ing con­sti­tu­tion the­ory that many of our lo­cal so-called top law schools are en­am­ored with.

But that is for an­other col­umn.

Jemy Gatdula is a se­nior fel­low of the Philip­pine Coun­cil for For­eign Re­la­tions and a Philip­pine Ju­di­cial Acad­emy law lec­turer for con­sti­tu­tional phi­los­o­phy and ju­rispru­dence. je­my­gat­dula@ya­hoo.com www.je­my­gat­dula. blogspot.com face­book.com/jemy.gatdula Twit­ter @je­my­gat­dula

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