The present firestorm over Judge Kavanaugh’s potential appointment to the Supreme Court may be the peak of the many trials (be they legal or public opinion) of the #Metoo movement. Begun and intended as a massive push against sexual assault and harassment in Hollywood, then across the business world, the  burgeoning movement has not been without criticism.

It would appear that this proceeding may prove to be the fever pitch of both #metoo and it’s skeptics, as a contentious hearing transforms itself into the centerpiece of a conflict between those determined to prevent an accused assailant from reaching the highest court in the nation, and those defending a man who tirelessly professes his innocence and good character. 

But laying at the heart of this battle is a concept present throughout the legal history of the American Experiment. This concept is The Onus Probandi, or the Burden of Proof.

Collins English Dictionary defines the Burden of Proof as “ the obligation, in criminal cases, resting initially in the prosecution, to provide evidence that will convince the court or jury of the truth of one’s contention.”

In the context of the Kavanaugh case, already this legal literature might be called into question. For despite the trappings and language, and obvious ramifications of the proceedings, it is not, in fact, a criminal prosecution. Though, it can be argued in return that the accuser, Christine Ford, did not bring her accusation to law enforcement, so as to trigger a criminal investigation. Instead, she brought her story to the media and the Democratic Party.

In further analyzing the proceedings through legal language, Ford’s accusations would be accepted as evidence in a criminal proceeding. However, there have been many incongruencies in Ford’s account that cast reasonable doubt on her testimony.

The New York Post reported on the 25th of September that “Ford cannot recall basic details of what she says was the most traumatic event of her life, even the year or what grade she was in.”

The Post goes on to report that of the four witnesses Ford asserts were present at the party, all of them denied unequivocally any knowledge of the party in question.

In the face of such lapses in her story, the entire account must be again viewed with a healthy dose of doubt. However, in the eyes of some, to not take a self-professed victim at their word completely and blindly is to assert a general hatred for anyone who has claimed to have been attacked, or been attacked.   

Social media, be it as all encompassing, and in many ways useful, as it is, has become a devastating tool of character assassination.

No longer what evidence can be brought forward, but rather how many people believe an accusation is the judge of innocence or guilt in the court of public opinion.

For potential workers, this ought to be a nightmarish prospect as companies will comb through their candidate’s social media to determine the general activities of the person in question. If all a company can find is countless unsubstantiated accusations of one or even several horrific crimes, many an innocent career might be left in tatters for a crime that might have never been committed.

Sexual crimes are certainly among the most heinous and detestable actions one can commit, and they should be investigated thoroughly and fairly by the proper authorities, and a victim of such a crime should certainly be able to present their accusations and evidence before a jury of their peers.

For all the good intentions that might be had in seeking to amplify the voice of a self-proclaimed victim, the unintended consequence of social media as a forum to accuse and denounce is a presumption of guilt passed down by social media vigilantes .

To be critical about a claim made against someone’s character is not in any way condoning or defending the act of sexual assault, nor is it refusing to hear out the accuser and reach an informed decision.

The burden of proof that an attack occurred rests with the accuser, regardless of the accuser’s or accused’s role, status, or wealth.

To bring this back to the Kavanaugh scandal, Ford has the right to make her accusation. She has the right to present any and all evidence she can produce and be heard.

But, Judge Kavanaugh also has the right to defend himself, dispute the evidence presented, and disprove it if he can.

It is not the political victory or loss that decides the matter of the assault, not the position, or gender, or background of the accuser or the accused.

The evidence, as presented or refuted, should be the metric by which the accused is deemed guilty or not.