At the risk of propelling readers to throw down this wonderful magazine in despair and shift to watching the latest episode of ‘Woke Q&A’ I am going to talk law this week. I know, not a topic one generally wants to bring up unless one happens to be helping out an insomniac friend. But bear with me if you can.
Start with a topic that every law school student soon learns about, the burden of proof in a criminal trial. All of us humans are fallible biological creatures. We can’t know for sure what happened somewhere else in the past. So one of the great inheritances given to those of us lucky enough to live in what used to be the pink bit of the map (along with the English language, jury trials, and the right to cross-examine one’s accuser) is the demand for proof beyond reasonable doubt before almost any criminal penalty can be imposed on someone.
Law students are told about a 1930s House of Lords case and Viscount Sankey’s ‘golden thread’ that runs through our common law-based criminal law. This is the idea that it is for the prosecution to prove guilt and to do so beyond any reasonable doubt; it is not incumbent on the accused to prove anything.
And behind that lies the further premise – I would say consequentialist trade-off – that it is better that a good many guilty people go free rather than that an innocent person be convicted and go to jail.
And that’s a fair trade-off for anyone wanting to live in a civilised and desirable society. It follows, for you non-lawyers, that many if not most people who get acquitted probably did do what they were alleged to have done. They’ve not been found innocent. The judge or jury has simply decided it has a reasonable doubt. (Remember, if you think it’s slightly more likely the person did it as opposed to didn’t do it, you acquit. It’s as simple as that.) So next time you see some lawyer representing an acquitted accused tell us his client was found innocent, just laugh. That’s a massive mischaracterisation.
Why bring this all up? Because of what has just happened in the US with the nomination of Brett Kavanaugh to their Supreme Court. Those opposing this nomination were so hell-bent on finding any grounds for stopping Kavanaugh and Trump that they turned the whole notion of a burden of proof on its head.
Sure, this wasn’t a criminal matter so the very high standard of ‘proof beyond reasonable doubt’ might have been too high – though that said the consequences on him and his family of raising these sorts of decades-old allegations of something close to gang rape might well be worse than with most actual criminal charges.
But the opponents of Kavanaugh didn’t move from that criminal standard of proof to the day-to-day, non-criminal standard of ‘is this more likely than not’. No, instead some seemed to be saying that Kavanaugh, the one being accused of this conduct, had somehow to disprove the 37 year-old allegations made against him, and do so beyond doubt. It was almost as though the impugned person had the super-high hurdle or burden of disproving allegations made against him.
And truth be told that’s just not possible. No one could meet that standard, which alas for some of the opponents of Kavanaugh was the very point. We were to rule him out of contention the moment the allegation was made.
If there is no corroborating evidence (and that was true here, indeed if anything the surrounding evidence looked worse for the accuser than the accused), and it’s a ‘he said/she said’ scenario, then where do we put the burden of proof and how high do we set it?
In my view Senator Susan Collins of Maine, in her speech saying why she’d vote ‘yes’ to confirm, got it just right. If you have no corroboration then the benefit of the doubt has to go to the person being accused of something. It doesn’t have to be the same benefit of the doubt we give to those accused of criminal offences. But it has to be more than halfway. Otherwise just think of the awful potential consequences and how everyone – not just every man, but every person – would be vulnerable to untrue allegations. And you’d lose, because you couldn’t disprove them, even be they three decades- old allegations. Not a very attractive set up to my way of thinking. Give me Viscount Sankey’s golden (or at least silver) thread any day.
What’s remarkable is that the right- of-centre Republicans held tough on this and withstood the social media onslaught. President Trump did not withdraw the nomination (as I guarantee an Australian Liberal party in a somewhat analogous situation would cravenly have done); and just enough senators said ‘yes’, even one Democrat. But all veneer of civilised politics is being ripped apart and I have to say it’s hard not to put the bulk of the blame on the Left, and all their sanctimonious virtue-signallers in Hollywood and elsewhere.
Personally, the hypocrisy oozing out of many of the male Hollywood crowd condemning Kavanaugh, the evidence for his having done anything being a minute fraction of a fraction of what it would be against them personally, was enough to make one want to barf repeatedly.
And then there’s the unbelievable hypocrisy of US law professors. As of writing this piece some 2,400 of them have signed a letter to the New York Times saying they don’t think Kavanaugh has a ‘proper judicial temperament’. This is not based on his perfect record on the lower court. It’s supposedly due to his showing emotion and fight in defending himself. Apparently when you’ve been accused of something close to gang rape these 2,400 law professors believe you need to keep a calm, impartial, ‘judicial’ demeanour when replying to that allegation. It’s either that or (as all the empirical data shows) US law schools are staffed over 90 per cent by partisan lefties who vote Democrat and are now doing their bit to serve the cause – a person’s reputation be damned.
The whole thing is massively depressing. That said, if this is the way things now are then give me a Trump any day. I prefer to go down fighting with a politician who’s not an invertebrate.
And on that criterion, Trump is pretty much the only right-of-centre option on offer these days.