TheWall Street Journal editorial
board has penned a scathing Op-Ed, claiming that "the Democratic
standard for sexual assault allegations is that they should be accepted
as true merely for having been made."
The Journal says that while the last-minute accusation against Supreme Court nominee Brett Kavanaugh is an "ugly spectacle" by itself - liberals have abandoned the entire notion of due process and the burden of proof in order to fit a political agenda.
The new liberal standard turns American due process upside down.
Judge Kavanaugh stands to gain the lifetime privilege of serving on the
country’s highest court, he has the burden of persuasion. And that is
—Anita Hill, Sept. 18, 2018
“Not only do women like Dr. Ford, who bravely comes forward, need to be heard, but they need to be believed.”
—Sen. Maize Hirono (D., Hawaii)
The last-minute accusation of sexual assault against Supreme Court
nominee Brett Kavanaugh is an ugly spectacle by any measure. But if
there is a silver lining, it is that the episode is providing an
education for Americans on the new liberal standard of legal and
political due process.
As Ms. Hill and Sen. Hirono aver, the Democratic standard for
sexual-assault allegations is that they should be accepted as true
merely for having been made. The accuser is assumed to be telling the
truth because the accuser is a woman. The burden is on Mr. Kavanaugh to
prove his innocence. If he cannot do so, then he is unfit to serve on
This turns American justice and due process upside down. The core tenet
of Anglo-American law is that the burden of proof always rests with the
person making the accusation. An accuser can’t doom someone’s freedom or
career merely by making a charge.
The accuser has to prove the allegation in a court of law or in some
other venue where the accused can challenge the facts. Otherwise we have
a Jacobin system of justice in which “J’accuse” becomes the standard
and anyone can be ruined on a whim or a vendetta.
Another core tenet of due process is that an accusation isn’t any more
or less credible because of the gender, race, religion or ethnicity of
who makes it. A woman can lie, as the Duke lacrosse players will tell
you. Ms. Hirono’s standard of credibility by gender would have appalled
the civil-rights campaigners of a half century ago who marched in part
against Southern courts that treated the testimony of black Americans as
inherently less credible than that of whites. Yet now the liberal heirs
of those marchers want to impose a double standard of credibility by
A third tenet of due process is the right to cross-examine an accuser.
The point is to test an accuser’s facts and credibility, which is why we
have an adversarial system. The denial of cross-examination is a major
reason that campus panels adjudicating sexual-assault claims have become
It’s worth quoting from the Sixth Circuit Court of Appeals ruling this month in Doe v. Baum on a sexual-assault case at the University of Michigan.
“Due process requires cross-examination in circumstances like these
because it is ‘the greatest legal engine ever invented’ for uncovering
the truth,” wrote Judge Amul Thapar. “Not only does cross-examination
allow the accused to identify inconsistencies in the other side’s story,
but it also gives the fact-finder an opportunity to assess a witness’s
demeanor and determine who can be trusted. So if a university is faced
with competing narratives about potential misconduct, the administration
must facilitate some form of cross-examination in order to satisfy due
Consider the limited facts of Christine Blasey Ford’s accusation against
Judge Kavanaugh. It concerns an event some 36 years ago that she
recalls in only partial detail. She remembers the alleged assault and
rooms she entered with some specificity, but not the home where it
occurred. She doesn’t know how she traveled to or from the home that
She told no one about the incident for 30 years until a couples therapy
session with her husband. Her therapist’s notes say there were four
assailants but she says there were only two. Two of the three other
people she says were at the drinking party that night say they know
nothing about the party or the assault, and Mr. Kavanaugh denies it
Democrats claim that even asking questions about these facts is somehow
an unfair attack on her as a woman. Her lawyer is demanding that Ms.
Ford testify after Mr. Kavanaugh, and that only Senators ask
questions—no doubt to bar Republicans from having a female special
counsel ask those questions.
We’re told Ms. Ford even wants to bar any questions about why she waited
so long to recall the alleged assault and who she consulted in finally
going public this year. Such a process is designed to obscure the truth,
not to discover it. None of these demands should be tolerable to
Senators who care about finding the truth about a serious accusation.
We don’t doubt that Ms. Ford believes what she claims. But the set of
facts she currently provides wouldn’t pass even the “preponderance of
evidence”—or 50.01% evidence of guilt—test that prevails today on
college campuses. If this is the extent of her evidence and it is
allowed to defeat a Supreme Court nominee, a charge of sexual assault
will become a killer political weapon regardless of facts. And the new
American standard of due process will be the presumption of guilt.
Appeared in the September 22, 2018, print edition.