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The Strangest #Me Too Case Yet.

Posted By Cliff Tuttle | September 22, 2018

No. 1,561

If Judge Kavenaugh had never been nominated to the Supreme Court, no one would have heard the accusations made by Dr. Ford.  She is stepping forward only because he was nominated to the Supreme Court and is about to be confirmed by the Senate.

She says she didn’t tell her parents about the sexual assault at the time because she obviously wasn’t supposed to be at a drinking party.  They would probably have grounded her for that and for sneaking around and for getting drunk. And justly so.

But there was more to her motivation. Accusations of this kind don’t usually come to light unless the police become involved or worse. Even today, young girls are unwilling to report events like this because they fear being branded by society as “that kind of girl.”  She would have been the big loser and she knew it.

Fast forward to 2018.  Its now the era of #Me Too. Women make the cover of Time Magazine and are called heroines for outing bosses and other men in power as adult sexual predators.  These cases follow a pattern where the accuser’s entire career was at stake. If she resisted, she feared being blackballed.

With the Ford/Kavenaugh matter, the #Me Too revolution is evolving to a new and frightening stage.  The key elements of the classic #Me Too scenario are missing. According to Dr Ford’s story, he was a 17 year old and she was 15.  They were both underaged drinkers and drunk. There was no threat of retribution involving career or employment.  Ironically, the only career that is in danger is the nominee’s.

Until now, #Me Too accusations involved only public shaming. If an accusation lead to a subsequent prosecution, as some did, the accused was afforded all of the rights under our Constitution and the judicial system. But the hearings before the Senate Judiciary Committee are not just a public shaming.  They are in reality a high-stakes trial.  This one deserves to be treated as such.

If this proceeding lacks due process, the shame will be on the members of the Committee. That doesn’t mean that it should be conducted with all of the formalities and evidentiary rules required in a criminal case. We apply the constitutional concept of due process to administrative proceedings of all kinds as a matter of course.  But, at the minimum, it does mean that the accused is entitled to hear live testimony of the accuser, together with the right to test the truth of the allegations by cross examination.  The accuser’s suggestion that the nominee must testify first and not be present during her subsequent testimony is contrary to our tradition of fundamental fairness and due process. Nor does it make any sense.  Until she testifies under oath in a formal hearing, there is nothing to deny.

At the time of this posting, it is not clear whether Dr Ford will ultimately choose to appear before the committee.  Her lawyers are still negotiating with Chairman Grassley regarding the rules.  In the end, she will probably appear “under protest”, possibly claiming that the game was rigged against her.












CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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