A legal double standard
committed a serious and violent crime at age 17.
To dismiss the crime Mr. Kavanaugh is accused of because he was young when he is alleged to have committed it would create a double standard that seems based at least somewhat on class and race. If 14 is old enough to go to prison for decades, 17 is old enough to forfeit a position that requires the highest ethical standards and regard for the law.
Our clinic’s clients have served decades behind bars. Their crimes involved homicides, the taking of a human life — unquestionably serious and violent. Although homicide may be deemed the more serious crime, there’s no question that, like manslaughter and murder, sexual assault is also serious and violent. In Ms. Ford’s case that is evidenced in part by her repeating the incident to a therapist decades after she said the attack occurred. All of us now understand that such incidents are crimes of violence and deserve to be treated accordingly.
As a society, can we say that 14- and 15-year-olds who commit serious crimes are old enough to spend most or all of their lives in prison, but a 17-year-old who commits attempted rape was so young at the time of the crime that it should not stop him from being appointed to the Supreme Court? Such a double standard is intolerable both in its reality and its perception. It becomes still more intolerable when you realize that the clinic’s clients are mostly black and were poor when their crimes were committed, whereas Judge Kavanaugh is white and was attending an expensive private school when his alleged crime took place.
The Senate Judiciary Committee has the difficult task of sorting through competing stories to get at the truth. Most hope that they will do a much better job than the committee did in the Clarence Thomas/Anita Hill hearing held in 1991. The outcome should not depend on a narrative some wish to perpetuate, but instead on ways that factfinders typically use to arrive at truth, such as an examination of the motives of the parties and the existence of corroboration. This is not a time to prejudge the facts, but neither is it a time to minimize the significance of the harm involved or to use a different age standard for evaluating this alleged crime than we do for others.