But You Knew Where this was Headed

We took a lot of grief when we wrote Roy Moore was being treated unfairly by being hit with 30 yr + allegations of bad behavior. and the American Nazi Party had acted correctly in organizing their parade in Chancellorsville, Va.  We pointed out the City Authorities were at fault.  Sure enough a comprehensive 220 page report authorized by the City by former US Attorney Timothy Heaphy detailed the failures by the City and law enforcement leading to the unfortunate  outcome. We didn’t take these positions out of any love for Roy Moore or the American Nazis, just the opposite.  We abhor both. That’s the point. In order for our system to work we have to be fair to everyone.  This is especially true of ideas and people we dislike. With Moore, we expressed the fear  using  accusations long passed any statute of limitations to attack him would be patently unfair.  Worse if allowed, could be set a precedent whereby any alleged long passed  act could be used to smear and maybe destroy innocent people.   Unfortunately, this is where we now are.

The idea of a Statute of Limitations has been in embedded the law of civilized societies for thousands of years.  Demosthenes wrote the Statutes of Limitations for Classical  Athens.  Why have these laws been included in virtually every nation’s legal codes? To protect defendants.  Three reasons are generally behind their enactment 1. A plaintiff with a valid cause of action should pursue it with reasonable diligence. 2. By the time a stale claim is litigated, a defendant might have lost evidence necessary to disprove the claim. 3. Litigation of a long-dormant claim may result in more cruelty than justice.  Laws reflect the ethics and principles of the a society.  If it is seen as unfair under the law to make a long dormant accusation, why would it be ethical or fair to do it under any other circumstances?  The answer is for thousands of years has been making such old accusations should not be allowed.  If it is improper to so in court it is no less improper to do it anywhere.  After all, Demosthenes wrote Athens’ Statutes of Limitations to control the “Sycophants” (professional accusers).

We must remember laws are agreed upon principles codified or incorporated into the common law.  Just because we’re outside courtroom we don’t discard our principles of justice and fairness and we don’t apply them to some but not others.

This brings us to a situation we warned would happen, the travesty of the Kavanaugh confirmation hearings.  An outstanding human being  by any reasonable standard, Bret Kavanaugh was nominated to fill an open Supreme Court seat for which he is superbly qualified.   Because it would possibly upset the balance on the court the appointment  was bound to be contentious, but Kavanaugh was cruising to confirmation.  At the eleventh  hour a woman makes a claim 36 years ago as a seventeen year old he sexually assaulted her at a party.  How does this by all accounts excellent human being defend himself?

Those supporting the accuser have uniformly stated her accusation is credible.  But to be credible it must be supported by something other than her words. Here she can’t tell when or where this dastardly act took place.  The who, what, when or where journalists know are the backbone of any story are sorely lacking.  The accuser’s sole supporting evidence seems to be some notes a marriage therapist took during couples therapy in 2012, decades after the supposed event.  Even these are suspect as the notes say the accuser said there were four boys involved in the assault but she now says there were only two.  She claims the therapist’s notes are incorrect.  But if they are incorrect on this vital issue how can they be evidence of anything else.  In any case this and anything she told her husband is simply her words not evidence.  Worse she named four other people at the alleged party including a girlfriend and none have in any way corroborated her story.  Yet we are told endlessly in all forms of the news media this is a credible accusation.  If this were in fact a legally credible accusation she should have taken it to the Montgomery County Maryland police with jurisdiction. Under our Federal System these are the people who are charged with investigating  attempted rape cases, not the Senate or the FBI.  Unlike most jurisdictions in Western Civilization, Maryland has no Statute of Limitations for felony sexual assault cases.  I leave it to your imagination, how a charge of a 36-year-old sexual assault by a then 17-year-old with date and location unknown and no supporting evidence would be received at the precinct.

Still many journalists across the media continue to refer to a credible accusation.” It’s not legally credible and contains none of the pillars of a news story so you are left with this is simply the judgment of the writer.  Since when are journalists in news stories supposed to include their personal judgments?  Opinion people are paid to make judgments, not real reporters.  This is the kind of reporting that leads so many people to believe the cries of “fake news.”

Without any evidence the accuser’s supporters are reduced to falling back on those old chestnuts in this “Me To ” era, women should be presumed correct in sexual assault or harassment cases as they have no reason to lie, woman remember traumatic events as they occurred, woman often repress memories of these traumatic events but once  recalled are to be believed, women’s careers would be destroyed by coming forward and women are just afraid to come forward.

Let’s take these one at a time. The idea of woman’s accusations are to be put ahead of a defendant’s presumption of innocence simply turns our system of justice on its head. The idea women don’t make false accusations is absurd in light of so many cases proving otherwise such as the Duke Lacrosse Team and “mattress girl “on the Yale campus.  The idea that certain groups are to be believed because they never lie is not only ludicrous but dangerous. In the 1980s and early nineties we suffered through  hysteria .many said was the worst  anything since the  Salem  Witch Trials.  Child abuse mixed with Satanic Rituals were alleged against day care centers across the country.  Many people went to prison, some for decades and one believe it or not is still in prison.  All this was based on the testimony of children in the belief children couldn’t possibly lie about such things. Only later it was shown that children were highly susceptible to suggestion and planted memories.  The harm done here has  never been fully reversed. Let’s not go down a similar road.

The idea anyone’s memory is solid even after decades has been dis-proven by numerous studies.  No matter what is remembered, over time our memories  become distorted.  A 2014 Northwestern University published in the Journal of Neuroscience put it this way, “Your memory is no video camera; it edits the past with present experiences.” Enough said.

To quote the American Psychological Association, there is “little or no empirical support for the concept of repressed or dissociated memories of sexual abuse.” Apparently we never really repress a memory, just put it on the back burner. This means someone such as Judge Kavanagh’s sexual assault accuser would in some sense was aware of the alleged assault.  Indeed she seems  to have blamed it for some marital problems discussed in the 2012 marital counseling sessions.  It’s a shame she couldn’t get help from a psychologist or therapist earlier. Oh wait Dr. Ford has a doctorate in, wait for it, Psychology. While personal therapy isn’t required for licensing in the U.S., according to Psychology Today, “Specific training programs within a discipline  may require it, and certainly a large number of programs recommend personal psychotherapy for their trainees.”  In a 1994 survey of psychologists by Kenneth Pope and Barbara Tabachnick, 84% reported having had psychotherapy themselves,  It seems very likely in the course of acquiring three degrees in Psychology  Dr. Ford  underwent some sort of therapy.  It might prove enlightening to compare the notes and therapist impressions from those earlier closer to the time of alleged crime sessions with what she said in 2012 and is saying now.

While coming forward with a sexual assault or harassment claim may have hurt a career in the past, today it is far more likely to be a career ender for the accused.  There are probably far more employers losing sleep over possible accusations, than employees fearing sexual harassment. Even the last time we had a Supreme Court nomination fight similar to this one, The Hill-Thomas Hearings, Anita Hill went from a virtually unknown to an Icon to a large part of the country.  Her coming forward resulted prestigious academic appointments and best-selling books.  Hardly a career ender.

No doubt some people still  are reluctant to come forward to report sexual assault or harassment for a variety of reasons, but we have come a long way in making the process more accommodating.  We need to continue in this direction. Educating all to be aware what needs to be reported at the time.  Employ even more “Oliva Bensons’ (Law and Order SVU) throughout law enforcement. This is the right way to overcome this problem.  Sexual assault and harassment are generally serial crimes.  The truly dangerous continue this behavior, so let’s’ catch them now when the evidence is fresh and available making much easier to prosecute.  But we do a disservice to the rule of law by removing longstanding defendant protections such as a Statute of limitations or the presumption of innocence to obtain convictions. Simply, two wrongs don’t make a right. The right way is to do everything possible for victims to come forward A.S.A.P. to effect convictions of the guilty.  In some jurisdictions testimony of crimes beyond the Statute of Limitations is allowed to establish pattern in a current case.  Maybe this is the best compromise.

So how do we as individuals process all of this?  Imagine waking up to the morning  news and finding you’re accused of a dastardly crime that supposedly happened maybe 36 yrs ago when you were 17.  You don’t know the accuser. No supporting evidence is given. No date or place is given. Nevertheless you are shortly to be dragged in front of a tribunal that could destroy your life and maybe even cost you your freedom. The accusing side demands you present your defense to the tribunal first and then the accuser will present the accusations.  Further they demand the accuser must be presumed to be telling the truth.  Yes, this is a scenario right out of Kafka. Tell us you’re not terrified. Tell us you’re not crying this is unfair.  This isn’t just.

What Kavanaugh’s accuser’s side and their supporters in politics and media are asking of us is to turn our back on time-honored law and principles to effect a certain short-term outcome. Conservatives since Edmund Burke have argued that we throw out our tested laws, institutions and principles willy-nilly at our peril. Progressives not so much.  Strangely, these different approaches are in part what brought us to this place in time. To achieve a packing of the of the DC Appellate Court with progressives, the then Democrat Senate Majority Leader Harry Reid did away with  the longstanding super majority requirement for Federal judicial appointments through the appellate level, reducing it to a simple majority.  A short term gain to be sure for the Democrats but at the cost of a long-established principle.  When the Republicans, as they were bound to do sometime, took control of the Senate, Mitch McConnell simply extended what Reid had done up to Supreme Appointments.  Good for the Goose, good for the gander. That’s how the Democrats achieved their present impotence in the present case and in the appointment of Neil Gorsuch.  So to achieve a small short term gain their lost their seat at the table to advice and consent to Judicial Appointments whenever they’re in the minority.  Now rather than any compromise on judges, both parties are free to appoint more extreme people to the bench whenever in charge. We fear the Democrats are again taking the same rash hasty action in this case and they will again repent at their leisure. What will be done to the next  to the next Democratic Supreme court nominee will be something to behold.  More important, the destruction of  by all reasonable accounts a fine human being with no evidence will further rend the fabric of our nation.  We will be even more divided while losing time-honored rights and protections.  Welcome to our “Reign of Terror.”

 

 

 

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