Each year, when I teach criminal law to first-year law students, we cover the subject of rape.
Our nation’s history on this issue is troubling. At common law, rape was not a crime unless the woman who was attacked resisted to the utmost, and rape trials often focused on the character and chastity of the female accuser rather than the misconduct of the man who assaulted her. Over the past 50 years, this country has seen significant changes in the law of rape that recognize the seriousness of the crime and the need to respect survivors of assault. For example, some states have eliminated the resistance requirement and focused instead on the presence of force or the absence of consent. Rape shield laws now protect many victims from being questioned in court about their chastity or promiscuity.
However, the reform of rape laws has some limit – and that is because of the critically important constitutional rights of the accused. Those charged with crimes of sexual assault – no less than any other criminal defendants – are entitled to protections including the presumption of innocence, the right to confront and cross-examine witnesses against them, and the prosecution’s burden of proof beyond a reasonable doubt. These constitutional assurances are essential when the full weight of the government’s coercive authority is being wielded against an individual defendant, whose life and liberty is on the line. And thus, in a criminal trial, neither judge nor jury may be predisposed to #BelieveSurvivors.
The constitutional rights of criminal defendants accused of sexual assault impose undeniable law enforcement costs. Particularly where the accuser and the accused provide conflicting testimony and there is no physical evidence, a rapist may go free. It is no wonder sexual assault is under-reported and under-prosecuted, and – perhaps as a result – remains widespread in our country. These costs entail a societal sacrifice – but a necessary one in the unique context of the criminal law.
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We need not make this same sacrifice for a Supreme Court nomination. Judge Brett Kavanaugh’s nomination to be the next associate justice of the Supreme Court is not a criminal trial. The serious allegations levied by Dr. Christine Blasey Ford and Deborah Ramirez are not criminal complaints. Thus, the evidentiary rules and constitutional rights that apply in the special context of a criminal trial, when the accused stands at risk of losing life or liberty, do not apply.
To be sure, the nominee has reputational interests at stake. But the need to give him the benefit of the doubt is different – and significantly less weighty. In the criminal context, the Constitution balances the interest in crime control against the liberty of the accused. In the confirmation context, the balance is instead the integrity and legitimacy of the Supreme Court against the reputational interests of the nominee. These are substantially different inquiries, and the consequences of “doubt” cannot be the same. “Doubt” about guilt in a criminal trial must lead to an acquittal. “Doubt” about innocence in the context of a Supreme Court nomination weighs heavily against confirmation, as it may undermine public confidence in the Supreme Court.
Saturday’s anticipated vote on Kavanaugh’s confirmation places the legitimacy of the Supreme Court at stake. The sum of the evidence creates, at the least, significant “doubt.” Ford provided compelling testimony about her experience of assault, and her credibility was strengthened by prior statements made years before to her therapist and her husband. Key portions of Ramirez’s account of sexual misconduct were corroborated by a Yale classmate, now a theology professor, who independently remembers hearing about this incident close to the time it allegedly occurred. By contrast, Kavanaugh’s impassioned testimony was evasive at best about matters such as the nature and extent of his alcohol consumption around the time of the alleged assaults. The FBI investigation into each of the accusations was incomplete.
Senators must ask themselves what message they will send to the public – including to survivors and perpetrators of sexual violence – if they ignore this evidence. The next Supreme Court justice will rule on divisive and sensitive issues, including reproductive autonomy, gender equality and workplace harassment. The legitimacy of these rulings and the respect for the rule of law itself require that the integrity and impartiality of the decision-makers are not in doubt.
Aliza Cover is an associate professor at the University of Idaho College of Law in Boise and a graduate of Yale College and Yale Law School.