#MeToo: 2018 v. 1800

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As a former Army Special Victim Prosecutor, I proudly worked with victims and prosecuted numerous rape and sexual assault cases in the #MeToo movement. However, after spending five years prosecuting these types of cases, I also observed the weaponization and politicization of the #MeToo movement, which led purported victims to attempt benefitting from unprovable allegations. The politicization of the #MeToo movement has potentially struck again with Judge Brett Kavanaugh’s confirmation to the United States Supreme Court. Specifically, Dr. Christine Ford has accused Judge Kavanaugh of attempted rape, 30 some years after the alleged incident occurred. This is a serious allegation, and should be investigated by the Judiciary Committee. Despite Dr. Ford’s certainty in her accusation, she fails to remember key facts, specifically when and where the alleged incident exactly happened. She has also apparently told conflicting accounts of how many individuals were present, four or two. Although these inconsistencies do not mean that that alleged attack did not occur, it does mean that it is difficult to prove. Finally, there is at least a possibility that Dr. Ford has a motive to fabricate. Certain Democrats have previously promised to “stop at nothing” to prevent the confirmation of Judge Kavanaugh. Indeed, there are allegations that Dr. Ford, a registered Democrat who has donated to progressive causes, scrubbed her social media accounts prior to revealing her identity. These allegations include an unsubstantiated claim, which the New York Times has questioned, that Dr. Ford previously wrote “Scalia types must be banned from the law.”

Despite these issues with her accusation, certain Democrats have rushed to her side, proclaiming that she is a “victim” and that she should not be questioned. Indeed, Democratic Senator Mazie Hirono stated that “men should just shut up …women like Dr. Ford need to be believed.” Additionally, Senator Richard Blumenthal indicated that there is no reason to doubt Dr. Ford. These Democrats would be correct if we were living in France during the French Revolution, but this is the United States, where constitutional due process reigns supreme, including an Accused’s right to confront and cross-examine their Accuser.

Although the #MeToo movement is a relatively recent phenomenon, it is not the first time that an alleged rape resulted in public condemnation of an Accused prior to the Accused being afforded the opportunity to present a defense. As retold by Ron Chernow, in his New Times bestselling biography of Alexander Hamilton, there was a #MeToo uprising in the late 1790s. Alexander Hamilton, perhaps the greatest litigator in the history of this country, “was disturbed whenever public opinion howled for bloody revenge,” according to Chernow. The public was howling for bloody revenge when twenty-two-year-old Gulielma Sands was raped and murdered. Standing accused was her fiancé Levi Weeks. The public was outraged and yelled “Crucify him! Crucify him!” outside of his trial. Alexander Hamilton, then the most acclaimed attorney in the country, was convinced that his client, Mr. Weeks, was innocent. As a result, Alexander Hamilton represented Mr. Weeks pro bono.

In his opening statement at Mr. Weeks’ trial in 1800, Alexander Hamilton stated:

I know the unexampled industry that has been exerted to destroy the reputation of the accused and to immolate him at the shrine of persecution without the solemnity of a candid and impartial trial. … We have witnessed the extraordinary means which have been adopted to inflame the public passions and to direct the fury of popular resentment against the [accused]. In this way, … the public opinion comes to be formed unfavourably and long before the [accused] is brought to his trial he is already condemned.

Alexander Hamilton ultimately convinced the jury that his client was not guilty of rape or murder. In fact, Hamilton was able to identify the man actually responsible for the crime. So assured of the innocence of Hamilton’s client, the trial transcript states: “The jury then went out and returned in about five minutes with a verdict – NOT GUILTY.” (capitalization in the original transcript). Given the histrionics of the current #MeToo movement, any decent defense attorney would be well served by plagiarizing Alexander Hamilton’s opening statement when defending those accused of sexual assault.

Unfortunately, false accusations still occur. How soon we forget the Duke Lacrosse debacle, where state prosecutors refused to turn over exculpatory evidence in their zeal to convict innocent players in response to pre-trial media and public opinion. Subsequently, the public again fell for the University of Virginia fraternity rape allegation as reported by the Rolling Stone magazine, but that was then proven demonstrably false by the Washington Post. More recently, Nikki Yovino, a Sacred Heart University female student, pled guilty to falsely accusing two African American college football players of raping her. She is currently serving a year in prison for her false accusations.

Admittedly, there are also Accuseds, who despite being convicted of heinous crimes beyond any doubt, continue to maintain their innocence.

Alexander Hamilton was obviously not the only founding father who believed in due process. Our criminal justice system is founded on the constitutional principle that one is “Innocent until Proven Guilty.” Contributing to the protections given to an Accused in our Constitution by our Founding Fathers was their belief in the statement of English jurist William Blackstone: “It is better that ten guilty persons escape than that one innocent suffer.”

Not satisfied with this ratio, Benjamin Franklin multiplied it by a factor of ten, when he pronounced “It is better 100 guilty Persons should escape than that one innocent Person should suffer.” Perhaps even more forcefully, John Adams made the impassioned plea “It is more important that innocence should be protected, than it is, that guilt be punished,” when representing British soldiers in a politically charged trial after the Boston Massacre.

Although Judge Kavanaugh’s confirmation hearing is not a criminal trial, it certainly seems like one. Kavanaugh stands accused of a heinous crime, and some Democratic senators are aligned trying to convict him of that heinous crime in the court of public opinion. Indeed, in the eyes of some of the media and the public, he is already convicted. They are not interested in the truth, but rather are interested in denying Judge Kavanaugh’s confirmation to the Supreme Court. In times such as these, when political pressure is great, it is imperative that prosecutors and Senators remember the sage guidance of the Supreme Court, when it stated that the role of the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Despite these Democratic Senators presumably knowing that in this country, an Accused is innocent until proven guilty, they have already branded Kavanaugh an attempted rapist by referring to Dr. Ford as the victim, instead of as the purported or alleged victim. If he is innocent, Judge Kavanaugh arguably already has a claim that these government representatives have violated his due process rights to life, liberty, and property. Indeed, in Wieman v. Udegraff, the Supreme Court discussed an individual’s constitutional interest in his reputation during the Red Scare. The Supreme Court subsequently stated in Paul v. Davis:

The words "liberty" and "property" as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause.

Here, if innocent, Judge Kavanaugh’s reputation, career and employment may be tarnished forever. Arguably, he would then have a potential claim against certain Democratic senators for depriving him of due process.

If the Democrats are successful in their desire of preventing the appointment of Judge Kavanaugh to the Supreme Court, I will feel no pity for the Republican Party, as they previously stonewalled eminently qualified Merrick Garland. However, if the attempted rape allegations are false or unprovable, there is no justification for the deprivation of Judge Kavanaugh’s due process and constitutional right to confront and cross-examine his accuser. In any case, let due process be followed and the accusations proven or disproven through evidence and cross-examination.