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Kavanaugh and the assault on due process

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Jemy Gatdula

Being Right

Kavanaugh and the assault on due process

“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 so-called “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.

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