Fordham Law Professor Benjamin C. Zipursky, James H. Quinn ’49 Chair in Legal Ethics, wrote an opinion piece about the principle of presumption of innocence as it applies to Brett Kavanaugh’s confirmation hearing.
Fiery politics has led many citizens to wish they could simply retreat to fundamental principles of justice. In this spirit, we hear that a “presumption of innocence” means that a person cannot be denied something of value except on the basis of real evidence—allegations are not enough. It then seems to follow that it would be unjust to use the Ford sexual assault allegations against Judge Kavanaugh to deny him a seat on the Supreme Court. Senators should confirm Judge Kavanaugh unless real evidence comes to light from the FBI investigation, the argument concludes.
As a law professor, I could not agree more with the basic principle that evidence must be produced before a person’s alleged wrongdoing can be used to deprive him of something to which he is otherwise entitled. Nonetheless, the argument contains numerous flaws that should concern Republicans and Democrats alike. Among them are: No one has an entitlement to a seat on the United States Supreme Court; there are other troubling aspects of Judge Kavanaugh’s testimony; there is already some evidence corroborating Dr. Ford’s testimony.
Let’s put those flaws aside, however, for there is a much larger problem. Indeed, there is a gaping hole right in the middle of the “presumption of innocence” argument that supposedly rests on basic moral principle. The problem is that Dr. Ford’s testimony, under oath, was evidence. It was not just allegations and accusations. Part of having a system of justice is having law that defines what can count as “evidence.” Under the law of any state in the nation and federal law, her testimony counts as evidence. Once upon a time, a woman’s testimony actually did not count as evidence. Today it does, because of centuries’ old legal changes dismantling our profoundly sexist system.
Some will say that I am playing with words, and what they really mean is that it is a basic principle of justice that a finding that someone acted illegally must rest upon something more than the testimony of an alleged victim.
If this is what the “presumption of innocence” argument aims to say, then it crumbles as a matter of justice and as a matter of law. Fifty years ago, many states required that a sexual assault victim’s testimony (although not other victims’ testimony) be corroborated by other evidence. Today the law is changed around the country; a woman’s testimony does not need to be independently corroborated, as a matter of law. There are good reasons for this change. As a distinguished lawyer explained to the Supreme Court almost twenty years ago, “the 1960s and 1970s saw dramatic increases in reported rapes and increased public awareness of the plight of rape victims across the United States, and a movement emerged to reform states’ rape laws.” Legislators sponsored bills that focused “on the aspects of the law that they believed to be the source of the greatest injustice—those that tended to put the victim on trial.” One of their proposed changes was the elimination of “corroboration requirements in rape cases.” Similar changes swept the country in states that had a corroboration requirement; Maryland never did. The bottom line is that Dr. Ford has provided evidence, not just allegations.
None of this is to say what Senators should decide. It is, however, to say that they are fooling themselves if they purport to rely upon a basic principle of justice that demands evidence. We have evidence in Dr. Ford’s testimony. Whether it is good enough evidence to alter a vote regarding a seat on the Supreme Court is a question they will have to decide by themselves, but they should know that our system of justice would allow a jury to use such evidence to send a man to jail for life.
One more thing. The late twentieth century elimination of corroboration requirements in sexual assault cases was not some left-wing feminist conspiracy. It cut across Democrats and Republicans alike. Indeed, the distinguished lawyer mentioned above was then-Texas Attorney General John Cornyn, at an earlier stage of his illustrious legal career. Senator Cornyn knows well that basic justice requires taking Dr. Ford’s testimony for what it is—evidence of sexual assault.