Kavanaugh and the High Court: Is Due Process Dead?
You have to work hard at avoiding the news in order not to know who Brett Kavanaugh is at this point. He is the judge that President Trump nominated to be the newest addition to the United States Supreme Court. Near the end of his nomination process, a woman came forward with an accusation of sexual assault in high school. So far, two more women have come forward with additional accusations.
This past week featured a tense day of testimony before the Senate Judiciary Committee. How you feel following that testimony probably speaks more to your political persuasion than the testimony itself. There is another – arguably more important – question to answer. How should you feel about this as an issue of fairness? Or, due process?
Definition of Due Process:
Since the founding of this nation, its citizens have had the right to due process. There is a procedural element to due process which – according to the dictionary – refers to a “course of formal proceedings carried out regularly and in accordance with established rules and principles.” In other words, there is a process to be followed that all parties involved can work within and understand. As stated above, it’s about fairness.
There is also a substantive element to due process which prevents an application of the law that is “unfair, arbitrary, or unreasonable” toward an individual. Rules cannot be made up on the spot. The laws and the application of those laws on prior cases dictate how present and future cases will be decided. Furthermore, laws cannot be applied one way for one person and another way for another person.
Due Process and Sexual Assault:
Allegations of sexual assault have come to the forefront of the news cycle for the last couple of years, and they remain there. Most people are aware of #MeToo and other movements and trends that encourage (primarily) women to come forward with their stories.
These stories have ruined the careers of many male celebrities. Some have admitted to various forms of assault; others are fighting the allegations. If guilty, they deserve to be punished. All of them first, however, are entitled to due process.
Bypassing Due Process:
The Kavanaugh confirmation stopped being about the law long ago. This is politics – in the worst sense of the word. In terms of the appointment process, the Senators seem to be making it up as the days go by.
Will Kavanaugh become a Supreme Court Justice? We will know more in the near future. Thankfully, where due process lacks in this political process, it still exists in the law. As it stands right now, Brett Kavanaugh is innocent of sexual assault (or whatever else) until proven guilty, in any criminal or civil case.
This fact is vital to our criminal justice system. You do not want a system in which an allegation is all it takes to find someone guilty. The same is true if there are thirty allegations. And, it shouldn’t matter who the accused is. Due process is a statutory reality in criminal cases, but it is also a very desired rule or principle in all other civil matters (e.g. the Supreme Court confirmation process). No matter the case, the burden of proof must remain on the accuser. Anything less is an abandonment of our fundamental principles of fairness and justice.
If you have been charged with a crime, you need an attorney who understands these principles. Call or e-mail today for a free consultation!
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