No Presumption of Innocence

Americans will have to judge for themselves whether Ford's testimony and allegations are credible.

Because as is, her word is essentially all we have to back up her claims. Sexual assault is a serious crime. It should be taken seriously when alleged. No one should doubt that a scenario like the one described by Ford takes place far too often, when drinking leads to assaults of varying degrees at parties where one believes they are surrounded by friends.

It's also reasonable to assume that a terrified teenage girl would want to keep such an attack quiet, for a number of reasons. It establishes a presumption of innocence in a crime until proven guilty. Kavanaugh is not being prosecuted now, but the values remain the same.

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Unfortunately, that shared sense of American justice seems to have vanished. In its place are demands to assume that allegations are true, with the burden of proof on the accused to disprove them. Some have argued that America's tradition of justice — that we must presume innocence until guilt is proven — shouldn't apply to this case because the only consequence of forcing Kavanaugh to prove a negative is that he won't get the Supreme Court job. Former Vice President Joe Biden argued explicitly for this standard whenever allegations involve prominent men.

Shifting the burden of proof on Senate confirmations, appointments, and elections changes all the incentives for public service. If we are not to evaluate claims on "facts" in order to determine whether the "essence" actually is "real," then what should form the basis of our evaluation?

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• NYT: Kavanaugh Has No Right to Presumption of Innocence, ‘Politics’ Should Decide His Guilt Instead?
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• NYT: Kavanaugh Has No Right to Presumption of Innocence, ‘Politics’ Should Decide His Guilt Instead.
• Kavanaugh, Ford and the History of Being 'Presumed Innocent' | Time.
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Whether or not we like the accused? Which party does he or she represent, or which party appointed him? This is not a recipe for justice, but instead an environment for bare-knuckled politics and a breeding ground for a return to Salem circa Such an environment will repel men and women of goodwill and good character from public service, incentivizing only the most insensitive and impervious personalities to choose to serve. That will lead to even further degradation of public discourse and an erosion of trust in institutions, which will make witch hunts and smear campaigns even more likely.

In this particular instance, we have a nominee who has a long track record of public service, both in law and politics, with nary a hint of dishonor until this allegation surfaced. Justice requires allowing the accuser to make her claim, but also in applying judgment in whether evidence exists to establish a crime and then whether it points to guilt.

Maybe Ford is right. Maybe Kavanaugh is guilty. In the final days before the Senate vote on the confirmation of Supreme Court nominee Brett Kavanaugh, the national debate over the right course of action was distilled into one key question: The hearing process provided a stage for the striking testimony of Dr.

Christine Blasey Ford, who accuses Kavanaugh of sexual assault when they were in high school, and the emotional rebuttal of Kavanaugh, who denies those claims. The news has also drawn attention to a fundamental principle of law that, it turns out, is more complicated than it seems: Senate Majority Leader Mitch McConnell has defended Kavanaugh on the principle that he is innocent until proven guilty, while Senate Minority Leader Chuck Schumer has made the point that the hearings are not a lawsuit and thus the legal presumed innocence rule is basically irrelevant.

The two senators, despite working within the same system, are able to find very different guidance from the same concept. He found that the ancient Babylonian Code of Hammurabi put the burden of proof on the accuser; that the ancient Greek statesman Demosthenes wrote about the importance of not calling people criminals before they were convicted; that a key third-century Roman legal document set forward rules about the evidence an accuser must supply; and that a Medieval European legal principle specified that conviction, not accusation, defined a criminal.

Roman legal codes with clear analogs in U. An accused person was entitled to benefits that might be denied to a convict, such as conducting business or passing down an inheritance. Get your history fix in one place: The former is a legal concept, applicable narrowly in a courtroom setting, which declares that the burden of proof rests on a prosecutor.

The latter is a relatively broad idea, with legal and social implications, that a person who has not been convicted deserves to be treated as innocent up until the moment of decision.

One way in which the difference worked out was immediately clear: American suspects were commonly handcuffed upon arrest, a practice that to his French eyes seemed to diminish the dignity of a presumed-innocent person. But in the course of his research, he found that the application of the idea in French history was subject to a series of ups and downs, to put it mildly.