October 3, 2018 at 4:55 p.m.
Beware the new sexual McCarthyism
Beware the new sexual McCarthyism
In his op-ed, Dershowitz warns against what he sees as a nation that risks a new form of sexual McCarthyism - the destruction of lives based on false accusations of sexual assault, or on such accusations with absolutely no corroborating evidence or support.
In the days of Sen. Joe McCarthy, Dershowitz wrote, "innocent people were accused of trying to overthrow the government and had their lives ruined based on false accusations, while being denied all semblance of due process or fairness."
And that kind of McCarthyism is what we risk today, he argued. The only difference is, instead of being accused of being communists, the victims of this McCarthyism are being accused of sex crimes. But their lives are ruined just the same, and perhaps more so.
As the Kavanaugh hearing makes clear, we are fast becoming a nation where anyone can be ruined by a single allegation of a sex crime, even if there is not one shred of evidence that it is true. All it takes is for a woman to say it is so.
Dershowitz also takes aim at leftists who argue that Kavanaugh was basically up for a job interview, making it his burden to prove that he was fit to serve, and so the allegations should be disqualifying.
That thinking cannot stand, Dershowitz wrote: "The behavior of which judge Kavanaugh has been accused is so serious and devastating that it requires a high level of proof before forming the basis for his rejection. There is an enormous and dispositive difference between a candidate's rejection on ideological grounds, as was the case with Robert Bork, and rejection on the ground that he has committed crimes warranting lifetime imprisonment rather than a lifetime appointment."
Kavanaugh is on trial for his life, Dershowitz wrote, and that makes it all the more imperative to confirm him, minus any corroborating evidence: "If he is now denied the appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision and possible imprisonment. He may no longer be able to teach law, coach sports or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a 'convicted' rapist on the bench is unseemly. For these reasons, he now has the right-perhaps not a legal right, but a right based on fundamental fairness - to have the charges against him put to the test of clear and convincing evidence or some standard close to that."
For those who believe that the people taking this view are simply guilty themselves of partisan posturing, it's important to observe that Dershowitz is no conservative but a life-long liberal Democrat. He supported Hillary Clinton in 2008, Barack Obama in 2012, and Hillary Clinton in 2016, and he says he would in no way have nominated Kavanaugh for the Supreme Court.
But due process is due process, Dershowitz argues, and those making unsubstantiated sexual assault claims cannot be allowed to ruin peoples' lives.
It's worth remembering that McCarthyism has ruined lives before. In those days, the senator from Wisconsin would haul those he charged with being communists or "fellow travelers" before his Senate committee and proceed to destroy them without any evidence. Here's how The Washington Post put it: "Evidence cited in the hearings tended to be slim, outdated or nonexistent, but the simple mention of a government employee's name in connection with the charges could lead to his firing."
Everywhere people feared being targeted, The Post wrote: "He ruined the careers of innocent people, intimidated some of the most powerful figures in America and created a wave of suspicion and fear ...."
The case of Val Lorwin is illustrative. Lorwin was a mid-level government bureaucrat working for the State Department as a labor economist. Liberal though he was, he was no communist.
Then, one day, an old friend stepped forward to accuse him of being a member of the Communist Party. He testified that Lorwin showed him a red Communist Party membership card. Lorwin denied it.
It was his word against his accuser's. But, as in any McCarthyism - in fact, this is the definition of McCarthyism - the accuser's words, with no other evidence, carried the day. Lorwin was indicted for perjury, and suspended from his job.
Innocent people across the country were blacklisted, and not just in Hollywood, by the mere unsubstantiated allegation that one was a communist. It wasn't just careers. People falsely accused saw marriages end, their children shunned, the lives of their entire families cleaved apart. McCarthyism takes a deep, deep toll.
As it turned out, years later, Lorwin was cleared. His old friend wasn't really lying but had actually misinterpreted the card he had seen, and McCarthy quickly used it for political gain. But the damage was done.
As Lorwin said: "The government has admitted the obvious fact that there could be no other case against me than that based on misrepresentation, falsehood or obstinate misunderstanding."
When he was cleared, the case became a national sensation as an example of what happens in a nation that abuses due process. The New York Times, which was a much different and more legitimate newspaper then, asked: "What safeguards now exist to prevent such miscarriage of justice as was suffered by Professor Val Lorwin?"
Does all this sound familiar? Like that of three accusers crawling from the woodwork of Democratic activism to destroy the career of a man with no evidence other than their own words - words tainted by their own lack of corroboration and, at least in the case of Julie Swetnick, her own lack of credibility.
Indeed, the issue of credibility is now chewing apart the allegations of even Dr. Christine Blasey Ford, who keeps changing her story about how many were at the party in question, whose story can't be confirmed by the witnesses she claimed were there, including her best friend, and who now has been accused herself of lying under oath, such as whether she ever helped anybody prep for a polygraph test.
Should not her accusers be believed?
Under these circumstances, unless some evidence to the contrary emerges, to allow the unsubstantiated claims of those with potential political motives to destroy a person is, again, the very definition of McCarthyism.
We cannot allow Brett Kavanaugh to become Val Lorwin. A stand must be taken up now against the new sexual McCarthyism, or there will be a thousand and a thousand more Val Lorwins brought to injustice in political witch hunts and show trials.
It's not just those falsely accused of sexual misbehavior who will ultimately be the victims of the new sexual McCarthyism. So will be the real victims of sexual assault, who already find it difficult to tell people close to them or to report an assault, for fear of not being believed or of embarrassment or that they were somehow at fault.
Dr. Ford herself - who likely was the victim of a sexual assault somewhere by someone - is a perfect example of what happens to victims who tell someone. Yes, she revealed herself to The Washington Post, and, yes, she had already hired high-profile attorneys, but by that time it was clear she had to step forward.
In fact, she told Democrats when she wrote her letter earlier in the year that she wanted her identity concealed. But the leaking of the letter at the last minute - when it could have been quietly investigated by the committee back in July and August, ensuring her anonymity - unleashed a firestorm that made her testimony and identity inevitable.
Now her own credibility is being shredded on multiple fronts in various media - just the kind of thing that discourages victims to come forward. That's on the Democrats; with their last-minute leak, they grievously set back efforts to encourage women everywhere to report sexual assault.
Not least, there's the larger question of men in powerful places slamming shut the doors of opportunity and power that had begun to be opened in recent years to women. Those doors were creaking open, albeit slowly, but now, in the wake of the #MeToo movement, they appear to be closing again because, frankly, men are afraid they will be accused of assault or harassment.
A Survey Monkey/LeanIn survey released earlier this year found that almost half of male managers are uncomfortable participating in a common work activity with a woman, such as mentoring, working alone, or socializing together.
"Since the media reports of sexual harassment, male managers are twice as uncomfortable working alone with a woman, and the number of male managers who are uncomfortable mentoring women has more than tripled from 5 percent to 16 percent," the survey found. "This means that 1 in 6 male managers may now hesitate to mentor a woman. The survey also found that senior men are 3.5 times more likely to hesitate to have a work dinner with a junior woman."
None of this is to say cases of harassment or abuse should not be reported, but the backward trend toward isolating women in the workplace is almost sure to grow as frivolous claims, such as those offered up particularly by Swetnick, surface. It's one thing when real victims stand up - offenders in the workplace need to be rooted out and punished - it's quite another when frivolous or unsubstantiated claims by a single person are enough to destroy careers.
Not to mention that a standard that requires any woman to be believed simply because she is female is sexist - and the backlash it will provoke in American management will be decidedly sexist as well.
That is to say, it's enough for men to batten down the hatches and close those career doors. And that brings us back to the new McCarthyism.
As Dershowitz suggested, what's really on trial is the nation's standard of due process, not Brett Kavanaugh.
"I don't know whether Judge Kavanaugh is guilty, innocent or somewhere in between," Dershowitz wrote. "I don't know whether he told the truth, the whole truth and nothing but the truth. .... But this is no longer about who would make the best Supreme Court justice. It is about the most fundamental issues of fairness this country has faced since the McCarthy era..."
Well said. In the 1950s, we refused to allow men and women to be accused of being communists and destroyed without evidence. In that McCarthyist era, due process prevailed.
In the 1960s, white men in the South were falsely accused of being members of the KKK. Because the real Klansmen were truly abhorrent - like those who assault women - we refused to allow those falsely accused to be destroyed. In that McCarthyist era, due process prevailed.
Likewise, in our day, we must not allow those accused without any evidence other than "misrepresentation, falsehood or obstinate misunderstanding," to use Lorwin's words, or that is "slim, outdated or nonexistent," to use The Washington Post's words, to be destroyed. In this McCarthyist era, due process must prevail.
Alas, it may not, for it is being abandoned even by such traditional watchdogs as the ACLU, as Dershowitz pointed out.
"The American Civil Liberties Union stood strong against McCarthyism by demanding due process and hard evidence," he wrote. "But the ACLU now argues that 'unresolved questions regarding credible allegations of sexual assault' be resolved against the accused nominee."
We cannot go to that dark place, Dershowitz warns, for we will all be in danger then.
Today, we do not think The New York Times in its present incarnation will dare to ask the question it posed during the previous McCarthyism, but we will ask it ourselves, adapted to modern events:
What safeguards can we put in place to prevent such a miscarriage of justice as is being suffered by judge Brett Kavanaugh?
That's the true question not only for Brett Kavanaugh's sake but because due process and the constitution itself are on trial. The verdict will be a defining moment in American history.
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