05 October 2018

Brett Kavanaugh: Both sides have lost the plot

To paraphrase Rod Liddle on BBC Question Time on 27 September 2018:

"If you are against Trump then Brett Kavanaugh is a rapist, no trial needed.  If you are for Trump then Christine Blasey Ford is a liar who has been manipulated by the Democrats."

An issue that should be a matter for cool heads, considering evidence on its merits, both questioning those making allegations, but also not dismissing them outright as obvious lies, has been completely dominated by the toxic binary tribal polarity that has become the trend.

Yes, you have to wonder with Kavanaugh having had a high profile career for some years why these allegations have emerged when Trump nominates him for the Supreme Court?  If he had been a Hilary Clinton nominee, and so had different views, would he have been similarly challenged?

Likewise, being nominated for the Supreme Court is the highest profile judicial appointment in the US.   Some women who have been sexually abused do not report it straight away, or even over some years, due to shame, fear of disbelief and the obvious difficulties of presenting evidence to police or to a court, and being cross examined.  The nature of sexual abuse is that shame, self-blame and self-doubt all come into play.   The one useful element of the #metoo movement is that it did reduce the stigma of sexual abuse victims speaking out as they should (what went wrong with it the idea that anyone speaking out automatically means that anyone accused is guilty until proven innocent).

So Kavanaugh has become on the one hand, a challenge to the fundamental maxim of our civilisation that anyone accused is innocent until proven guilty.   However, some of those defending this are also challenging the notion that someone who raises an allegation of a sexual crime should be listened to and given emotional support in making a complaint.   It is not contradictory to both accept that victims of a sex crime (which almost always happens in private, so is a matter of she's says/he says or vice versa)  need to have channels to speak out, and should be listened to by the Police and complaints taken seriously as with any other crime, BUT also treat anyone accused of any crime as innocent until proven guilty.

Few say that women who claim to be victims of sex crimes should shut up or not report the offences.  It has been more a case that police have been reluctant to take on such cases, not least because of the difficulty and complexity of gathering evidence and proof, which is inherent in the very nature of those crimes.  However, it is important that complainants be treated with due respect.  The sooner a rape or sexual assault is reported, the more likely that action can be taken on it, and the more likely that evidence will be believed.  

Specifically, the bill would require "an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity." Getting consent is "the responsibility of the person who wants to engage in initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity." The consent has to be "ongoing" throughout any encounter.

What this means is that in a sexual encounter, acquiescence wont be deemed to be consent, which depending on what presumption you place on such encounters, can mean two things.

If you assume that, in most cases, most people act with mutual respect and the interactions they have with people in such circumstances (who they consent to be with, and be close with) are based on that, it means that no one can just kiss, or reach out and touch another person intimately without it being effectively a crime.  Even if you are in a sexual relationship with someone,  it literally means actively consenting to every step in an encounter.  "May I kiss you? yes.  May I touch your thigh above your knee? Yes. " etc etc.  

BUT WAIT (the outrage builds)

What if you assume that in these circumstances there is a relationship of power (identity politics states it is a misogynist culture, dominated by men with rules by men for men,  or even a rape culture)?  Then yes you (men only really) SHOULD have explicit consent for touching a woman, for touching her genitals, for every step in the process, otherwise YOU are the problem, because you're basically a potential rapist.

Pardon me if I think that if someone believes they have been sexually assaulted, in any institution, their first recourse should be the police and the criminal justice system, not some sort of kangaroo justice system.  

However, that is another issue, and a serious one that not only libertarians, but most people across the political spectrum who believe in the fundamentals of common law and the criminal justice system should be concerned about.