Brett Kavanaugh’s confirmation to the Supreme Court is a win for women. It is a win for the rule of law, which all peaceful and just societies are built upon. Central to the rule of law is the presumption of innocence until proven guilty. This evolved from Clause 39 of Magna Carta and remains the central pillar of justice in Western legal systems.
During the past few weeks, this basic legal and ethical principle has been besieged by a push to #believeallwomen. This phrase was written is sky high letters on banners at protests, hashtagged and quoted by the most virtuous of Twitter personalities and, most worryingly, was even regurgitated by some members of the Senate. But what would be the long-term ramifications if our society did away with due process and really did ‘believe all women’?
Well to begin with to believe all women implies that all women are the same, or similar enough that they can all be thrown into one category. Moreover, it implies that all women are inherently honest, at least when it comes allegations of sexual misconduct. In doing so it places women back upon the pedestal that the first two waves of feminism successfully took us down from.
When women fought for their rights and equal treatment it was on the presumption that women are just as capable as men. And of course we are, women are just as intelligent and complex as their male counterparts, but that also means they are just as capable of lying, manipulating and doing all of the Machiavellian things that are part & parcel of human nature. Women fought for equal treatment, not special treatment. To obtain the legal status of men means you take on the legal and personal responsibilities as well, meaning that your testimony must be corroborated before guilt can be determined.
The presumption of innocence exists and operates effectively in societies not only because it is just but also because it is logical, as it is intrinsically difficult to prove a negative. It is a critical thinking exercise perhaps best explained by the philosopher Bertrand Russell in his famous teapot analogy. Meant to be a criticism of religion, Russell explained that if the onus of proof is not placed upon the person asserting a claim anything can be ‘true’ as long as it cannot be disproven. The example he used was an assertion that there is a very small teapot revolving around the earth. Negative proof would assume that teapot’s existence until enough facts to the contrary could be gathered.
Senate Minority Leader Chuck Schumer openly stated that “there’s no presumption of innocence” in regards to Brett Kavanaugh. Considering Kavanaugh’s accuser could be believed despite not providing the date, location or any corroborating evidence to counter Kavanaugh’s detailed diaries and repeated clearance by FBI investigations into his background, it felt at times that Kavanaugh might as well have been attempting to disprove there was a teapot revolving around the earth. He was not fighting against evidence but an emotional belief that bordered on the dedication of the most devoutly religious.
No matter who you believe in this case, you must remember the legal system is not based on belief, or who you want to believe or who you should believe because of their gender, it is based on evidence and due process. Justice is and should remain blind, especially in circumstances where partisanship places blinkers on people’s views.
If we do believe all women and make it the responsibility of the accused to prove their innocence, this would set a dangerous precedent and undermine the justice of our legal system. Due process is there to ensure that the innocent do not get punished, as a state that punishes the innocent cannot claim to be just. This is not to say that Kavanaugh definitely did not assault Ford, but right now it cannot be proven that he did so in the eyes of the law and, just as importantly, of society he is innocent.
To dismantle traditional safeguards in order to make it easier for survivors of sexual assault to proceed through the legal system may seem like a good idea at face value, but it is a concept that is open for misuse and manipulation. Public condemnation can never take the place of a fair trial and testimony must be given equal weight regardless of gender. As a woman, I could not stand by and see my brother, father or son cut off from the protections of the law.