There Are Good Reasons to be Cautious About Any Kavanaugh Inquiry

There are good reasons that we should be cautious about endorsing any Kavanaugh inquiry, formal or informal, reason which are a direct result of taking the charges levelled against him seriously.

I take "believe the victim" to mean that we should start from a presumption of guilt. However, in order to meet basic standards of fairness/due process such a presumption has to be defeasible i.e. there exists the possibility to effectively rebut the charge. In my previous post I characterized this as there being one or more pieces of evidence which are practically accessible, the production of which would serve to meet whatever burden of proof is needed. This is true regardles of whether we're talking about formal legal proceedings or extra-legal, fact-finding processes.

In the case at hand we could ask "Is there anything Kavanaugh could say, any evidence that he could produce, which would convince people that he didn't commit sexual assault?". I'm having a hard time coming up with anything that would meet this burden under a "preponderance of evidence" standard, much less a more-stringent standard. Charges of sexual assault are notoriously hard to (dis)prove even when the event takes place in the present; that the charges against Kavanaugh involve an event which is 36 years removed makes the prospect significantly more difficult. Due to the passage of time there's unlikely to be any corroborating/exculpatory evidence of a physical nature, so we're going to be left with the verbal testimony of people trying to remember the details of something that happened 36 years ago. I'm simply at a loss to identify anything that Kavanaugh, or people speaking in his defense, could say that would make it more probable than not that he didn't commit sexual assault.

And that's where the problem arises; the accusation of sexual assault against Kavanaugh appears to be unanswerable. The outcome is predetermined, and predetermined outcomes are generally taken to be a failure of due process. Put more succinctly: If there's nothing that Kavanaugh could say to establish his innocence then the inquiry process is pointless at best and a sham at worst.

Let's stop for a moment and look at the features of the argument above. It is not an argument

• That "boys will be boys".
  
• To let "bygones be bygones".
  
• That the evidence which exists points to either Kavanaugh's guilt or innocence.
  

Rather, the argument is based purely upon structural features associated with the presumption of guilt; it turns on no specifics about Kavanaugh's sitution (apart from the passage of time) and could apply equally well to many, many other situations.

What we have here is a conflict between analysis at the aggregate level and analysis at the individual level. We presume guilt because, taken in aggregate, reports of sexual assault are usually true. However, when trying to assess any particular individual's culpability, we're analyzing things at an individual level. Regardless of what the stats say at an aggregate level, individuals must have the ability to rebut the charges against them.

And this is why people of all political leanings should proceed with caution; given the considerations above it looks like the charge leveled against Kavanaugh is indefeasible. By all accounts the man is a rat bastard, but he's still entitled to basic considerations of fairness/due process. And yes, it's true that sexual assault victims are also treated unfairly in an unfortunately large number of ways, but I simply reject the idea that introducing yet more unfairness is an appropriate response.