“The one thing that doesn’t abide by majority rule is a person’s conscience.”
To Kill a Mockingbird is the first movie in my childhood viewing experience in which a happy outcome failed to punctuate my viewing enjoyment. Instead, collective bigotry overpowered justice, and Tom Robinson, a black man in an anti-black time and place, was found guilty of a rape that his lawyer, Atticus Finch, provided compelling evidence he did not commit.
As I grew up, I came to believe that this cautionary tale, while profound in its rendering, was unnecessary in our bigotry-fading times. Mob justice was something of which our fore-parents were guilty, not us moderners. Indeed, as I further learned about long-ago alleged witches subjected to drowning tests to see if they were witches, I recall feeling relieved that I had chosen a more just time in history to be born.
What I did not realize was that, even though our culture had come through an impressive collection of enlightenment, we still carried the same genetic disposition towards mob justice. It is in our nature to judge others by the instructions of our emotions, assumptions, and most powerful of all, our group consensus. Most of us want to believe ourselves to be morally righteous, and so when our friends, neighbours, and activists all have their fingers pointed in the same accusatory direction, it is not easy to resist the pull of their conviction. In turn, I suspect that the many mob jurists who once convicted real life Tom Robinsons in that anti-black time and place did so not because they were amoral, but because their peer pressure and prejudiced emotions had manipulated them into believing they were protecting their society (women, in particular) from evil.
Today, I believe the #MeToo style of justice being called for by advocates and pandered to by pundits and politicians utilizes the same emotional trickery, whereby those countering it with calls for due process are accused of being complicit in “rape culture.”
It is not an easy charge to allay. After all, due process necessarily means that some violent criminals will not be found guilty. Until, that is, humans acquire omniscience, our justice system will forever be unable to prove every case of evil it encounters.
Nevertheless, I thought our society was settled on the notion that it is better for ten guilty people to go free than for one innocent person to be sent to prison. And, consequently, to be considered criminally guilty of a crime, a person must be found so beyond a reasonable doubt. I believe in such a system of justice not because I don’t care about victims, but because I think our society has proven beyond a reasonable doubt that it cannot be trusted with a lower standard.
For those with faith in our modern brains, I refer you to the curious cases of Jian Ghomeshi and Brett Kavanaugh, both alleged sexual predators, and both presumed guilty by mob jurists. In Ghomeshi’s encounter, not only was there no corroborative evidence that the former CBC pontificator was guilty of the crimes of which he was accused, the communication between Ghomeshi and his accusers post “incidents” strongly indicated that he was innocent.
Undaunted by reason, though, a feminist mob chanted outside the Toronto courtroom (and on the streets of my own far away city) that the accusers should be believed, because, after all, they were members of a gender too pure to ever lie. And, yes, I know, mobs will be mobs: surely the society at large was not so deluded by the sexist rantings of evidence-resistant protestors. Maybe so, but many influential journalists, pundits, and celebrities (including literary legend, Margaret Atwood, and Ghomeshi’s own former bandmates) publicly helped themselves to a presumption of Ghomeshian guilt. And, even though Ghomeshi was found by the court to be not guilty, two years on, the fired radio host continues to be in public exile for crimes he is assumed without evidence to have committed.
Meanwhile, during the recent Brett Kavanaugh confirmation hearings for his spot on the US Supreme Court, the Senate called Professor Christine Blasey Ford to testify that the judge had sexually assaulted her 36 years ago. Now, even if we were to adopt the feminist standard of justice where one automatically believes the sincerity of female accusers, the case would still be a daunting one to prove. While Kavanaugh and Ford evidently spent some teenaged time in nearby circles, there is no corroborative testimony from either’s friends that they knew each other. So, it is perfectly possible that the 15-year-old Ford met someone who looked like the Kavanaugh she may have seen in passing and mistook him for the genuine Kavanaugh.
Even so, if the police were able to find credible evidence to verify Dr. Ford’s accusation, then the justice system should be free to pursue a conviction.
However, what happened here—senators asking their questions of Kavanaugh and Ford, mixing in partisan, faith-based pronouncements of justice—was trial by political peer pressure.
It is a token victory for due process that the Republican partisanship overruled the Democratic partisanship and approved the accused judge. But neither side, not even Kavanaugh, himself, pointed out that it was unjust for them to be guessing at the veracity of a criminal accusation.
As many have already said, Kavanaugh seemed rather unjudgely in his avoidance-testimony of Democratic senators’ questions about his teenaged drinking habits, and whether he was ever drunk to the point that he might have unknowingly done what Ford had claimed. His response was to ask a questioning senator if she had ever gotten black-out drunk. While this obfuscation was unfitting of a judge, the spirit of Kavanaugh’s evasive manoeuvre is understandable. It is already difficult to prove any negative—that one didn’t do something—but it is especially daunting to prove that approximately 36 years ago at an unnamed place and time, one did not do something. There was no good answer for Kavanaugh. Given that he admits he drank a fair amount in those years, he likely does have a compromised memory of the parties he attended, but if he admits that, then he’s acknowledging it’s theoretically possible that he committed the assault. That, of course, is not actual evidence that he was a sexual assaulter, but faith-based jurists don’t care. In their emotion-led minds, failure to disprove a negative is proof of guilt.
By contrast, in courts of law where due process is in effect, there is no requirement of the accused to prove their innocence; instead, the state is obligated to prove guilt.
So, instead of obfuscating these questions, I wish Judge Kavanaugh had answered his senate interrogators with a soliloquy on due process. That asking him to prove that it was impossible for him to have committed the crime of which he was accused was like asking a witch to prove she was not a witch. That even though alleged victims of violent crime deserved access to justice, faith in accusation without due process and corroborative evidence was a dangerous precedent that he would not stand for. That he would not answer their questions regarding accusations of a crime that should be brought before a court of law or not at all. And that if this refusal disqualified him from their confirmation, then so be it, but he would not sacrifice his or anyone else’s due process for personal gain.
As it was, by answering the senators’ unjust questions, Justice Kavanaugh legitimized them. And so the mob jurists outside, and in the media, continued without resistance to pronounce their verdict that the system had “failed women.”
I am envious of these advocates for faith-based justice; unlike childhood me, #BelieveWomen activists can witness To Kill a Mockingbird with a smile as Tom Robinson’s conviction grants them a happy preview of the sort of justice they are seeking.