October 03, 2018
How about a presumption of veracity?
What does it mean to "believe women"? Start by believing they're telling the truth. That they, too, are "innocent" -- innocent of deceit or misjudgment. The presumption that they're telling the truth should be exactly as strong as the presumption of innocence we give the accused.
Reasonable doubt. Is the story of the person proclaiming their innocence true? We start with the presumption that it is, and we hold to that presumption until the weight of evidence carries us to the point where we can no longer believe what we started out believing.
If we apply that same standard to a presumption of veracity, instead of just one story, now we have two. Only one of the stories can be true, but now we have to weigh them equally.
In the case of Blasey Ford and Kavanaugh, what evidence do we have? Their histories, the testimony of people who know them, bits of documentation (her therapist's notes, his calendars). The psychology of trauma and memory. The motivations that might move them to tell their differing stories. All of it counts.
To disbelieve Blasey Ford requires concluding, beyond a reasonable doubt, that either the assault never happened or she is mistaken about the perpetrator. The gaps about time and place in her story are explained by the psychology of trauma. The delay in telling anyone about it is, we know, quite typical in cases of assault. None of this is sufficient to conclude, beyond a reasonable doubt, that her story isn't true.
Kavanaugh's story is weaker. The testimony of people who knew him, the record of the bar fight when he was at Yale, the physiology of alcohol induced blackouts, all indicate that the picture he presents of himself as a young man isn't accurate. But this still isn't enough to judge him guilty beyond a reasonable doubt. (Not "innocent," remember. Just not guilty.)
So the "beyond a reasonable doubt" standard isn't going to help us if we apply it equally. But we don't need to hold this as the standard. This isn't a criminal trial and his story isn't the only one that matters. We're not facing a question of imposing criminal penalties. We don't need to conclude that he's guilty of that particular assault beyond a reasonable doubt. We need to decide if all of the facts that we have create sufficient doubt about his character to appoint him to a seat on the Supreme Court.
Whose story seems less likely? Everyone needs to come to their own conclusion, but if "believe women" is going to mean something seriously, if we're going to correct the state of affairs in which the woman's story is automatically cast in a shadow of doubt, with all of the life ruination and miscarriages of justice that's caused, we need something like the presumption of veracity to correct the balance. We'll still need to struggle with how to apply it in case after case. But in this case, I doubt the man. I believe the woman.