Kevin Kennedy, PhD

Any fan of Agatha Christie or other writers of crime mysteries knows that the first question that police ask a suspect when investigating a crime is: “Where were you on such-and-such date at such-and-such time?” However, in the case of the assault allegation against Judge Brett Kavanaugh, the police cannot possibly ask this question of Judge Kavanaugh or any other person. This is because Dr. Christine Blasey Ford, his accuser, cannot remember the date, the time, or the location of the assault that she alleges Judge Kavanaugh committed. Given these circumstances, it is impossible for Judge Kavanaugh to produce any defense against this allegation. Despite this impossibility, Democrat lawmakers are demanding that Judge Kavanaugh “prove his innocence” in the face of this charge of sexual assault.

On September 25, the Democrat senator from Delaware, Chris Coons, declared that the burden of proof for Judge Kavanaugh’s innocence lies with Kavanaugh. On the same day, the Democrat Senator from New York, Chuck Schumer, claimed that Kavanaugh should receive “no presumption of innocence” when he faces the charges leveled against him dating back more than thirty-five years.

The despicable way in which the confirmation process for Judge Kavanaugh has been conducted is just the most recent assault against the rule of law in our nation. What was once a foundation of American jurisprudence, that a person is presumed innocent until proven guilty, has been abandoned for the sake of political opportunism. Liberal-progressives in our nation operate on the assumption that an accusation is tantamount to proof of guilt. Katie Hill, a Democrat running for California’s 25th district seat in Congress, has even accused Judge Kavanaugh of being a “serial predator” based merely upon the fact that he has been accused of sexual assault.

If the current trend continues in our nation, then all Americans are at risk. No American should be willing to set aside the presumption of innocence, even if doing so would further one’s particular political agenda. It is usually despotic rulers who offer-up “political” reasons for accusing and punishing people with whom they disagree. The presumption of innocence is the first line of defense against tyranny and we should not abandon it.

Returning to the question of the recent allegation leveled against Judge Kavanaugh, let us consider the facts as they stand today. All of the people whom Dr. Ford has named as being present at the alleged incident have denied any knowledge of the event. Even her life-long friend denies ever being at a party with Kavanaugh or of having any acquaintance with him. Based on these facts alone, no criminal charges could ever be leveled against Kavanaugh. If no criminal charges could ever be brought against him, then how can anyone demand that he “prove” his innocence?

While we are on the question of the possibility of bringing criminal charges against Kavanaugh, there is something else to consider: Who would be responsible for bringing these charges against Judge Kavanaugh? This question is more important than one might think. According to her own sworn testimony, Dr. Ford does not remember the house in which the alleged event took place. Neither does she remember how she arrived there nor how she made her way home. Given these facts, how could any court of law ever establish jurisdiction over this alleged crime? Let me explain.

At the time of the alleged incident, Kavanaugh lived in Bethesda Maryland, just minutes from Washington, DC. Bethesda is also only minutes from the state of Virginia. If Dr. Ford cannot testify as to the house in which this alleged event took place, how she arrived there, or how she made it home, then she cannot even testify that it took place in the state of Maryland rather than in DC or in Virginia. In other words, it would be impossible to prove that any state or district had jurisdiction to prosecute this alleged crime, much less investigate it. Any competent attorney would have this case thrown out of court in a matter of minutes.

Not only should Judge Brett Kavanaugh be presumed innocent in the face of this allegation, the facts of the case (as they stand today) should lead any reasonable person not only to presume his innocence, but also to declare it loudly at every opportunity.

One final thought—let me illustrate where rejection of the presumption of innocence might lead us:

Let us say that a person wanted to make a false accusation of sexual assault against a Supreme Court nominee and wanted to do so without the possibility of ever being charged with perjury. How might that person go about doing this? Well, she could state, unequivocally, that the nominee assaulted her, but then conveniently forget the date, the time, and the place of the incident. If ever challenged with exculpatory evidence by the accused, then the accuser could conveniently say that the assault must have occurred at some other time and place. In fact, making a false accusation of sexual assault, even doing so with certainty, is easy if one never makes any claim as to the date, time, or place of the incident.

Now, I am not claiming that Dr. Ford has done this. However, if we reject the presumption of innocence, then why should we not demand that Dr. Ford prove that she has not perjured herself, especially considering her convenient memory lapses? If such a demand would be unjust, then would it not also be unjust to demand that Kavanaugh prove his innocence against Ford’s accusation?

An interesting feature of detective stories is that it is often the amateur who solves the crime while the police are bewildered. One of Agatha Christie’s sleuth’s, Miss Marple, is an elderly spinster who lives in a village. Dorothy Sayers’ character Lord Peter Wimsey is an aristocrat who solves crimes as a hobby. If amateurs can solve crimes, then ordinary people should be able to see through the liberal-progressive assault on the constitution, the presumption of innocence, and the rule of law.