The Kavanaugh Hearings: Views from a Former Sex Crimes Defense Attorney

By: Katherine Itacy, Esq.

Dated: September 28, 2018

For those of you who don’t know, I used to make my living defending those suspected of, charged with, and/or convicted of a wide array of sex offenses. I represented these (mostly) men sometimes from the moment an allegation is made until the appeal is done and the sex offender classification level is imposed and challenged. On several occasions, I’ve even been around when additional allegations were made against them.

Unless you’re my friend on social media, you may not realize that, as a defense attorney, I almost never made public judgments regarding anyone accused of or charged with any crime—especially if no criminal charges were ever brought. In my opinion, unless I was able to review the alleged evidence and listen to and observe the testimony and demeanor of any and all witnesses, I don’t believe that I have enough information to make a “judgment” as to a person’s guilt or innocence. I’m also well aware as to how a false allegation impacts a person and their family for the rest of their lives.

Lastly, for anyone unaware, I am a staunch advocate for women’s rights, equity among all genders, and the civil rights of every human being on this planet. Despite my ethical obligations to my clients that I zealously advocate on their behalf and defend them to the best of my abilities, I never advocated for the commission of sex offenses; nor have I ever encouraged or engaged in victim blaming. 

And I was and remain immensely proud of all of the individuals who came forward during the #MeToo movement with their own experiences with sexual harassment and/or assault. As a feminist and a cisgendered woman, I am intimately aware of the unwanted sexual advances of some cisgendered men. I also understand the shame, embarrassment, and/or fear that many assault victims/attempted assault victims feel when considering whether or not to come forward with their experiences.

In the instance of child victims, I also understand the concept of delayed reporting—that many are threatened with violence to themselves or their families if they tell anyone, or are bribed or induced into silence. Some are too young to realize what’s just happened to them until many years later.

Now, with all of those caveats out of the way, I’d like to take a moment to comment on The Kavanaugh hearings. Or, I should say, the public’s reaction to The Kavanaugh hearings.

I’ve seen Tweets, Facebook and Instagram posts regarding Dr. Ford, Judge Kavanaugh, and the Senate Judiciary hearings taking place on the Hill. I have to say that I was quite disturbed and disappointed as to just how many chose to believe the allegations lodged against the judge, husband, father, and coach, well before Dr. Ford was even sworn under oath. They were absolutely convinced that Judge Kavanaugh was a predatory monster who must be kept off of the Court. Some even cited to Anita Hill’s testimony almost thirty years ago, suggesting that she was the “foremother” of Dr. Ford’s testimony.

Of course, I am all for supporting victims. I am all for exposing the truth regarding any dishonest, unethical, or immoral behaviors or traits of a potential United States Supreme Court Justice. These appointments are for life, and the Court decides the constitutionality of some of the most life-changing, freedom-suppressing, and/or civil rights-depriving laws imposed by cities, states, and the federal government. A lot is at stake when a case is brought before the nine members of the Court, so their fitness for the Court is, of course, of the utmost importance to ascertain.

Being a bleeding-heart liberal, I am not stoked that this President has had the opportunity to impact the laws of our land for decades to come by filling some of the Court’s seats. But I am also, in the deepest recesses of my heart, still a defense attorney. I believe in our Constitution; in the (still-rather-broken-and-unjust) Criminal Justice System, at least its ideal state; in the Rules of Evidence, the presumption of innocence, and the right to confront one’s accusers.

Now, I’m well aware that these hearings are not subjected to the same standard of proof as a criminal case. 

But I am appalled by the fact that the American public has taken to the streets (and especially social media) to destroy this man and his family’s reputation and way of life before the allegations even made their way into the light.

I am announcing that I disbelieve Dr. Ford? No. Am I stating that I believe Judge Kavanaugh is innocent of any and all allegations lodged against him? No. I do not believe that I have sufficient facts to come to either of those conclusions.

I’m just so concerned and alarmed by the fact that so many others seem to believe that they had the ability to pass judgment, just by the mere fact that an allegation was made!

Now, in many of these cases, it boils down to the words of the accuser and the accused. Most times, there is no forensic evidence. Many times, there are no witnesses. Often times, especially with delayed reporting, there is no way for the accused to provide an alibi. Unless the allegations are specific as to a time, date, and location, it’s hard to prove you weren’t there. Factors like drugs or alcohol, fuzzy memories, and the perceived or misperceived intentions of both/all parties can convolute things.

But the public opinions surrounding these allegations seem to come from more of a place of “we must believe and support the accuser and destroy and shame the accused” than any evidentiary standard that I’m comfortable living with. I’ve seen the devastation that comes from false accusations, especially when they’re of a sexual nature. The man, even if accused of assaulting someone their own age, is suddenly seen as a sexual predator to all. He suddenly is no longer fit to be around women or children (male or female children, by the way, despite the research that shows that most pedophiles have a specific age and gender preference for their intended victims). He can no longer go to his children’s school or sporting events, never mind coach any of their sports teams.

Now, once again—I am not stating that I disbelieve Dr. Ford. I am just scared about where we, as a country, go from here. I want allegations of sexual harassment and assault to be able to come to the light without any fear of reprisal or revenge or shame brought upon the victim. 

But are we really comfortable with trying a person in the court of public opinion?? By way of distorted rumors and emotionally charged Tweets from those without any personal knowledge of the alleged events or regarding those supposedly involved?? Are you really okay with this? Would you be okay if you, your sibling, or your parent were subjected to the same standards we’ve resorted to?

I’m not suggesting that we disbelieve or dishonor or disrespect anyone. But the very thought of someone committing a sex crime (or attempting to commit a sex crime) has resulted in such collective disgust in this country that the person is believed guilty, essentially unable to prove him- or herself innocent. It’s hard enough to prove a negative without having any presumption of innocence afforded to you in the first place.

And this type of allegation never goes away for the accused, even if he is ultimately found not guilty. The allegation and all that accompanies it forever follows this person and his family around. It will impact the person’s ability to get or maintain a job; their ability to participate in community events; to socialize with others; to maintain familial and friendly relationships. 

When I started practicing law just about ten years ago now, I was deeply concerned about the emotionally charged policy and rule-making that surrounds alleged sex crimes. Often times, it ignores facts, logic, and rational thinking in favor of being overly cautious and protective of potential victims. Sadly, as I’ve stated publicly and in Rhode Island Senate Judiciary Committee hearings, often times, creating laws or policies based upon emotion and these overly cautious instincts lead to unintended consequences that make society and potential victims less safe, not more safe.

Now…I don’t know what to think. I don’t know where we go from here, when we’re instantaneously passing judgment before hearing any of the alleged evidence or allowing the alleged perpetrator the opportunity to respond.

I’m not criticizing Dr. Ford. I’m criticizing the rest of us. Those who were so quick to choose sides, whether it was on the basis of gender, political affiliation, or the mere subject matter of the allegation. Those who may or may not have used Dr. Ford’s letter and allegation as a political ploy; a weapon to use, if and when decided necessary. 

I’m afraid for the rule of law. I’m afraid for us, as a civilized society. I’m afraid that we’re so politically polarized that we’re now willing to throw away our standards and our rule of law in exchange for political gains. And potentially destroy lives in the process.

Where do we go from here? Please—I’d love to know, although I’m terrified of the answer.

 

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