Category Archives: Sexual harassment/Assault

Priests and Nuns

 

Priests have been not just been assaulting young girls and boys in their parishes. They have found other victims. They have found nuns.

I heard a former nun speaking on NPR and she demonstrated this phenomenon. She said that when she was a nun she was not allowed to think for herself. She was always taught that priests were superior to her, as was her Mother Superior. It was her duty to do as they directed without question. With hindsight, she believes this was spiritual abuse that prepared the way for later physical abuse.

One day a priest came to visit her in her room, and he started to remove her clothes. She told him, “You are not allowed to do this.”  He continued his actions. He continued to remove her clothes and then raped her. She felt compelled not to scream out. After all she was expected to do as the priest desired.

When the nun reported the incident to her Mother Superior, the superior got so upset that we was shaking violently and jumped on the table shouting wildly. And she was shouting at the nun. The Mother Superior was radically upset at the nun. She was mad at the nun for reporting the incident. Of course she did nothing to help the nun. Somehow it must have been the nun’s fault. The priests could do harm in the eyes of the Mother Superior.

Only years later did the nun realize that this was part of a pattern of abuse in the church. When she learned how some priests had abused young girls and young boys, the nun realized that she had to speak up. She had to challenge the abuse. She realized she had to speak out, even though other members of her church would not support her for that. Everyone believed the nun had done something she should not have done to lure the priest into trouble. It was the victim’s fault.

The woman who interviewed the nun could not understand how this happened. The nun explained to the interviewer that this is what happens often. When powerful men have power over powerless, defenceless, or vulnerable women (or even worse children) some men choose to use that power for their own self-satisfaction.

Such abuse reveals an ugly element of abuse. When the abuser is thought to have authority from God the abuse is even more poisonous. If God sanctions it, the victim feels, it must be all right.

Of course this is problem that is not unique to the Roman Catholic Church. It is a problem in every region where men have authority over women

This is actually what happens in many institutions. For example, this year in Phoenix it was discovered that a man who worked in an institution of seniors, had impregnated a woman who was basically in a vegetative state. When the powerful find themselves in control of the vulnerable, power often leads to sin.

The same thing happens in politics. As Martin Luther King said, the United States is the world’s greatest purveyor of violence. The United States is the most powerful country in the world, and it uses that power to get what it wants, as powerful countries have done since time began. The problem is inequality of power, not who is holding it.

Recently I suggested that maybe it is time to give women the chance to have power over men. I was not really serious about that. I don’t want anyone to have power over others because so often it leads to abuse. What I really want to see is equality, not just a changing of the guard.

Inequality of Power in the Military

https://www.dropbox.com/s/iqn5jwmvsk8cb60/Screenshot%202019-03-27%2023.13.07.png?dl=0

 

The military is peculiarly powerful. This is particularly true in the United States where I have spent the last 3 months. It is also one of the most hierarchical institutions on the planet. Wherever you have a military you have those in power and those subject to power. You have the officers and the grunts. You don’t want to be a grunt.

If you add sexual/gender power imbalances things get even worse. Arizona, where I have been living, has been exposed recently by an American Senator of all people. Recently Arizona U.S. Senator Martha McSally surprised the state and even the country by announcing during a Senate subcommittee meeting that she had been raped while she was in the Air Force. McSally spent 2 decades in the Air Force before she became a Senator. Much of that time was served here in Arizona at very bases close to where we are living. In fact she was the first female pilot to see combat. She also said she felt like she had been victimized again when she reported the incident to her superior officers. Interestingly, she said, “I thought I was strong, but I felt powerless…The perpetrators abused their position of power in a profound way…I was horrified at how my attempt to share generally my experience was handled…Like many victims, I felt like the system was raping me allover again.”

If this could happen to a woman who ultimately was promoted to Commander, we have to wonder what would happen to a less powerful female in the Air Force? The uncomfortable fact is the American military, probably like every other military in the world, Canada’s included, has for too long been a male dominated institution in which there is a strong power imbalance that is magnified when gender inequality is added creating a truly toxic brew.

As reported by the Arizona Republic, The Pentagon officially reported 6,769 sexual assaults in 2017, nearly a 10 percent increase over the prior year. But advocacy groups such as Protect Our Defenders say the true number is likely 15,000 to 26,000 annually. I don’t know about you but I found that a shocking number. According to the Pentagon’s own statistics that amounts to about 20 sexual assault per day! If you accept the number from the critics it could be as high as 722 per day! According to a Rand Corporation Report last year, in a Sierra Vista base here in Arizona, about 1 in 12 female soldiers were sexually assaulted during the year of the survey. Remember these are assaults not harassments.

The American military, like the Canadian military, has for years been trying to stamp out sexual assault and harassment under pressure for various sources. Clearly their success has been about as great as the Roman Catholic Church. In fact, the Arizona Republic reported that a recent Pentagon report showed that sexual assaults spiked nearly 50% in 2017-2018 despite years of focus on the problem. That report also showed that 60 percent of military victims who reported rapes suffered career-ending retaliation. It is hardly surprising that young women are reluctant to come forward with complaints.

The report also identified 2 particularly vulnerable groups: young, unmarried females of lower ranks and personnel aboard ships (where women are far from protection.) It is clear that the issue is power. Powerful men (and yes most of these are men) abuse vulnerable women. It really is that simple. Not all of the men, but too many. The inequality of the power is the key. Just as it is in cases of coaches abusing athletes, priest and nuns or priests and young people in the church , employers and employees, teachers and students, parents and children, and men and women. Wherever power is uneven, people must be on alert.

I don’t know if there is any evidence that women would do a better job of this than men, but it is difficult to believe that they could do worse. Maybe its time to give women a chance. We need someone like John Lennon to create a song about that. We can’t all compose songs, but at the very least it is time for men to speak up. All of us.

The Court of Public Opinion

 

The court of public opinion does not require proof beyond a reasonable doubt. The court of public opinion makes its own evidentiary rules. In the court of public opinion we can consider hearsay, we can hear opinion evidence given by non-experts, we can accept leading questions, and can violate all kinds of other valuable rules of evidence. But all of us sitting in judgement in the court of public opinion should learn from the courts of law. They have some good ideas.

In the court of public opinion we should remember to listen to both sides. We should exclude dubious evidence. We should reject specious arguments. We should make our decisions based on the best evidence we can muster. We should not rely on second hand stories. We should be on guard against bias. We should keep an open mind. We should not base opinions on junk science. We should cross-examine those who testify to us (if we can). We should employ reason in weighing the evidence, rather than faith, emotion, feelings, or instincts. We should not guess or leap to conclusions. We should be diligent. We should do all these things (and more) if we are actually trying to discern the truth. We should try our best to be ideal observers.

Of course if we just want to mouth off none of this is necessary.

Abuse of Power

In my last post I talked about Michael Jackson. I suggested that we did not have enough evidence to convict him. Besides, he was charged and acquitted by a jury that heard all the evidence, all the arguments, and all the irrelevant evidence was excluded. We are not in that position and must remember that.

That does not mean we can’t have our opinions. In a court of law the prosecution has a high standard of proof that it must meet before the judge or jury as the case may be, is entitled to find Jackson guilty. Jackson is entitled to be acquitted unless the evidence proves beyond a reasonable doubt that he was guilty. That is a very high standard. That same standard is not applied in all circumstances. It is much a higher than the standard of proof in a civil case.

That is why even though O.J. Simpson was found not guilty of murder, he was nonetheless successfully sued by his widow’s family for damages for her death in a civil trial. In a civil trial the plaintiff (the one suing) only needs to prove the case against the defendant (such as O.J.) on a balance of probabilities. In other words the plaintiff only has to prove that it was probable or likely that O.J. killed his wife. If it is proved that it was likely that O.J. killed his wife he can be held liable for the damages he caused in a civil suit, even though he was found not guilty on a criminal charge.

I will give you an example. If a son acquires property from his elderly parent without paying fair market value for that property and it is established that the parent was under the influence of the son and subsequently a daughter of the parent alleges that the son used undue influence to get that property without paying for it, the son is required to prove that he did not use undue influence. The son must prove that the parent exercised his or her own free will to make the gift and unless the son can prove that, the son will be required to disgorge the gift. The daughter is not required to prove that the son (her brother) used undue influence over their parent, the son must prove that he did not use undue influence. The onus of proof is on the one who gained the advantage while he was in a position of power over the vulnerable giver. This is as it should be.

This can apply the same way to others who are in a position of power over a vulnerable person. This could include the doctor of the parent, or lawyer, or accountant, or parent, or minister, or employer, or anyone else in a position of superior power over the person who made the ‘gift.’. The law presumes that undue influence was used until the person who benefitted rebuts the presumption and proves otherwise by satisfactory evidence.

This is good law. We can all learn from it. I think it can help us to understand what we might want to think about the Jackson case. Even though we acknowledge that there was insufficient evidence to prove he was guilty beyond a reasonable doubt. That high standard only applies in a criminal trial.

In a civil case sometimes the same principle is applied and might apply to someone like Michael Jackson. If he was in a position of power over a vulnerable person by reason of his wealth, fame, and power he should be forced to prove he did not misuse that power. The onus of proof should be on the powerful person not on the vulnerable person who might have been abused. Michael Jackson might be entitled to an acquittal in a criminal court, but what about the court of public opinion?

Abuse of vulnerable by the powerful–it is very difficult to discern the truth in these matters, but it is very important to find the truth.

 

I have been  told not to make long posts. No one will read them they is said. This might be true. However, I feel this topic is so important I had to do it. Sorry about that. To those who can’t give the time I understand.

In the last few years, there has been an epidemic of sexual assault and abuse cases, particularly against celebrities or people in power. Why is that?

At the outset I must remind that Michael Jackson was charged with various offenses, went to trial prosecuted by an experienced and respected prosecutor and after a lengthy trial was ultimately found not guilty. That process and the outcome must be respected, unless we have very good reasons not to, such as evidence that the justice system was itself abused.

This issue in Jackson’s case has arisen again because of a recent documentary that was shown on American television and which at this time I have not watched. I want to see it. I did watch a television shown about the documentary in which 2 men alleged that Jackson sexually abused them when they were young. They were not the men whose charges led to the trial. Yet as a result of this new film documentary, many people say they have stopped listening to Jackson’s music and his reputation is being shredded.

It is also significant that Jackson is no longer around to defend himself and he always denied any such charges. His family has stepped in on his behalf to deny the charges, but of course, they are benefiting substantially, I presume from his ongoing legacy as a star. What do we make of it?

People v. Jackson (full title: 1133603: The People of the State of California v. Michael Joe Jackson) was a 2004–2005 criminal trial held in Santa Barbara California as a result of charges made by Gavin Arvizo who was a the time a 13-year old boy.  As a result Jackson was indicted for 4 counts of attempted child molestation against a minor, one count of conspiring to hold the boy and his family captive, and conspiring to commit extortion and one count of conspiring to commit extortion and child molestation. He pleaded not guilty on all counts and was found not guilty of all counts by the jury.

Jackson had been accused once before in 1993 of similar offences  so the newer charges did not come as a big surprise. Like the previous charges Jackson was accused of abusing Arvizo in his famous home Neverland which seemed to have been designed for an “adult kid.” In 1993 Jackson had been accused by another 13-year old boy Jordan Chandler and his father Evan Chandler for alleged abuse of the boy at his Neverland Ranch. There was an extensive investigation but it was inconclusive and no charges were laid.

In January 1994 Jackson settled out of court with the Chandlers for $22 million dollars. In a statement at the time, Jackson claimed that he had settled out of court even though he was innocent in order to avoid a media circus involving people who were seeking money from him. He earned some sympathy with these claims, but others were suspicious that a rich celebrity had bought himself out of trouble by silencing his accusers.

Jackson’s appearance (always an unreliable indicator) and some public comments he made led many around the world to doubt his innocence. A film Documentary made in 2003 showed Jackson holding hands with Arvizo and him discussing sharing a bed with children and this led to a new investigation, which in turn resulted in the charges against Jackson that triggered a trial which garnered international attention. In fact it  created exactly a media circus with Jackson in the center ring. The Guardian newspaper reported how there was “row upon row of TV cameras camped outside [the courthouse] like an occupying army.”

There was no physical evidence of abuse so the prosecutors had to rely on testimonies from witnesses including the Arvizo family and even Neverland employees. These people painted a lurid picture of Jackson as a sexual predator with a history of child sexual abuse. Wade Robson, at the time a young boy, also testified at that trial that Jackson had not molested him. Robson told a different story in the more recent documentary.

Jackson’s legal defense team argued that the witnesses were unreliable and had a history of perjury and fraud. Macaulay Culkin a former child film star testified in Jackson’s defense. He said he had shared a bed with Jackson when he was young, but Jackson had never molested him.

Jackson always said he never molested children; he said he worshipped them and would never harm them. In August 2000, Gavin Arvizo, a young boy suffering from cancer, visited Jackson at Neverland. Jackson where Jackson invited sick children from time to time because he felt sorry for them.

After charges were laid, a video showed Jackson being led out of his home in handcuffs. This created an international sensation when it was released. Jackson once again asserted his innocence saying the claims were “predicated on a big lie.” Jackson said this time he would not settle out of court as he had done in 1993. Legions of fans around the world gathered to show their support for Michael Jackson.

At the trial Martin Bahir who had produced the inflammatory documentary film testified for the prosecution but was shredded by the defense attorney in cross examination. According to the Guardian he was “left a trembling wreck.”

Another  young boy  testified at the trial that when he was young Jackson had molested him while tickling him and that Jackson paid him money so that he would not tell his mother. Two Neverland Staff testified that they had seen Jackson molesting children including Chandler and Macaulay Culkin. Although both staff had horrific stories to tell, both sold their story to a supermarket tabloid. The employees had sued Jackson after he dismissed them and their suits were thrown out as fraudulent and malicious. They were not the best witnesses for the prosecution. A cook testified that he had seen Jackson with his hands in Culkin’s underpants. Culkin denied this. A former house manager said he often saw Jackson drunk at his home and sometimes saw children emerging drunk from the wine cellar with Jackson.

The complainant Gavin Arvizo testified that Jackson had molested him, but also admitted that he told his school administrator this was not true. Gavin’s younger brother Star testified that Jackson had touched him sexually, but the Guardian described his testimony as a hapless witness for the prosecution who forgot crucial details that he had revealed to the grand jury but could no longer remember even when the prosecutors prompted him.

Janet Arvizo was a spectacular witness. She was the mother of Gavin and Star, but she was the type of witness lawyers hate. She was uncontrollable and a disaster for the prosecution. The BBC described her as a woman who was “combative and rambling,” who made erratic outbursts and rarely gave straight answers. She had the international spotlight and was determined to use it. Again she was not a witness likely to attract the sympathy of the jury. She admitted that she had lied under oath in an earlier trial. The defense lawyers portrayed her as a welfare fraud and she was in fact later convicted for that. The Prosecutor’s witnesses were not entirely stellar.

Culkin testified that he was shocked by the false claims that Jackson had molested him. He called those charges “absolutely ridiculous.”

Wade Robson is an important part of this case. Robson was 5 when he met Jackson. At the trial he testified that Jackson never molested him, contrary to testimony from others who claimed to have seen him molested.Many years later he recanted and said Jackson had in fact abused him and that he had not told the truth at the trial.He was interviewed in the recent documentary I saw and was an effective and convincing witness, but he was not subject to cross-examination by Jackson’s lawyers. This is very important. Statements made outside a court of law are not as reliable as those made inside the courthouse because of the availability of cross-examination, which tends to keep speakers honest. Remember too that my comments are based on second hand summaries of witnesses to the testimony. Again, this is not as reliable as direct evidence. The jury on the other hand heard only direct evidence about facts and all of that testimony as subject to cross-examination. That jury after hearing all the evidence, cross- examination, arguments and instructions from the judge reached the conclusion that Jackson was not guilty.

There were more witnesses as well, but I have to quit somewhere. It is clear that the evidence was far from clear, certain, and uncontradicted. Frankly it was troubling. It is understandable that the jury had a hard time convicting Jackson on the basis of the evidence delivered. That does not mean Jackson was innocent. It does mean that a not guilty verdict was understandable.

Remember too that juries must decide on the basis of proof, not on the basis of what is probably the case. They can only convict if the evidence is beyond reasonable doubt. If there was any reasonable doubt they were required to acquit Michael Jackson. The jury deliberated for 32 hours over 7 days. One juror later said that he had a “gut feeling” that Jackson was guilty of molestation but could not convict on that basis. He said the prosecution failed to prove the case beyond a reasonable doubt. In such circumstances the juror must acquit.

After a fair trial in which Jackson was acquitted of all charges, the issue of Jackson’s guilt or innocence has arisen again, as a result of the recent shocking documentary on HBO that featured 2 young boys who alleged that they were subject to sexual abused by Jackson. One of them, Wade Robson, had even earlier testified at Jackson’s trial that he was not a victim of sexual abuse, but years later said he had not told the truth at Jackson’s trial. Now he claimed instead that he had been sexually abused by Jackson.

Robson claimed now that he had been groomed for abuse by Jackson. Abusers do that.  He claimed that Jackson had “brain-washed him.” It is commonplace that victims of abuse often believe that they won’t be believed. This is not an unreasonable belief. Our judicial system has a black history of not believing victims, but believing perpetrators instead. As a result we can’t hold it against alleged victims that they failed to testify. Are those who did testify, but testified falsely as very young boys that they were not victims in a different position?

We must also remember and recognize that America, not unlike Canada, is a country that worships celebrity and wealth. Jackson had both in abundance. The parents of the victims were also not immune to this disease. This may explain why parents would allow children to “sleep over” at the home of a celebrity super star.

Michael Jackson was an American singer, songwriter, entertainer and dancer who was referred to as the “King of Pop.” He was not a garden-variety star; he was a genuine superstar He was considered one of the most significant cultural figures of the 20thcentury. He was also well-known for his philanthropy, charitable fund raising, lifestyle, and his famous Neverland Ranch. He had been a star for  decades. It is hardly surprising that in a culture where celebrity is worshipped, that the parents of the children gave in to the blandishments from Jackson. We should withhold blaming the parents unless we have all the evidence.

We have to remember as well that this was a situation of a giant celebrity and young vulnerable children, badly protected by their parents. It was a situation in which conditions were ripe for a predator to take advantage. That does not mean this happened; it does mean conditions were ideal for this to happen. Did it?

Unfortunately Jackson is no longer around to give his response to recent events. The strong suspicion that Jackson bought off his past accusers makes it even more difficult to be objective. We must also remember to ignore images we have inevitably had of Jackson’s weird appearance. That is not relevant. Perhaps Jackson  was innocent and did try vainly to avoid exactly what later happened–a media circus. Of course it was a circus to which he contributed. He agreed to be interviewed on CBS television prior to the sensational trial. Trying to sift out the truth in these circumstances is now very difficult. But let’s try.

Wade Robson was overwhelmed when he was young and heard that such an international superstar as Michael Jackson was enamoured of him. He said he fell head-over-heels in love with Jackson. His parents too were enthralled by the attention of such a star. But we must remember Robson  was only 7-years old at the time. Robson could not consent to the attraction. He was subject to it. His parents as well were so overcome with Jackson’s celebrity, wealth, and fame that they failed to protect their young son. They allowed their 7-year old son to sleep with the star in his bedroom, as shocking as that might seem to us, safely away from such celebrity power.

Michael Jackson presented themselves to Robson’s parents as a wonderful person who loved children. They did not see more to it than that. Perhaps they were blinded by his wealth and fame. How could they not do what Jackson wanted? How could they resist? How could they complain?

Frankly this is not unlike the situation of young nuns in the control of predatory priests. The priests are not famous, but they are believed by the nuns to be gatekeepers to heaven who can do no wrong by definition. How can they resist unhealthy attention from such priests? How can they complain? How can they not do what the priest wants them to do?

This is the black mark of abuse: a vulnerable victim in the grip of a ruthless perpetrator. This is the inevitable condition of abuse. All of us–but particularly those in charge of vulnerable people–must in such situations be on guard against abuse. And this is, just as inevitably difficult–very difficult. But it is all the more important for that.

What does a victim, especially a young victim, do in such a situation? It is not unusual, but it is common, for the victim to believe that he or she will not be believed. The powerful perpetrator will be believed instead. This has happened over and over again. The helpless victim also frequently believes that the perpetrator must be right. After all, the perpetrator is a priest, or a superstar, or a commanding officer, or a teacher, or a parent. This would be a good time to shudder. The perpetrator is asking for something so it must be right.

This is exactly why it is abuse. The powerful perpetrator takes advantage of his (or less often her,) position of power to rob the victim of consent. Any apparent consent is not real. It is abuse that brings about false consent. It is a consent that is manufactured. That is why such victims cannot consent to the abuse. Any consent is an illusion. A vulnerable victim cannot consent to sex with a powerful man. The faux consent is meaningless.

According to Robson, Michael Jackson told him  that if other people found out about what they did together in the bedroom, even though they loved each other, they would be pulled apart and both of them would suffer, so for that reason Robson must keep quiet. If he did not keep quiet, Robson believed, they would never see each other again, even though they loved each other and both would go to jail. These, of course, are powerful reasons for a young child to keep quiet, and even to deny the abuse. Such arguments might have persuaded Wade Robson just as they might have persuaded a young Macaulay Culkin. All too often abusers are able to persuade young victims that they should keep quiet.

James Safechuck was also interviewed on the recent documentary film. He met Michael Jackson when he was 10 years old when he was making a commercial with Jackson. He claimed that Jackson abused him sexually over and over again.  According to Safechuck, Jackson lured him away from his parents. He said that he idolized Jackson. In my view that is precisely the problem. Making idols of others never ends well. When it is done at a young age it can be harmless, but it is extremely dangerous to be placed in a position of vulnerability to the idol. Protectors of the vulnerable must be constantly and relentlessly on the alert against abuse of their charges in such situations.

In the Safechuck case, Jackson befriended the family and lavished attention on them. Again, in a society enthralled by celebrity and wealth, this is a difficult position to be in. James Safechuck’s mother said, “It was all so overwhelming, like a fairy tale, and I got lost in it.” That is what guardians must never allow to happen. They have to keep their head up.

According to James Safechuck, Jackson rewarded him with jewellery for sexual acts. Jackson gave him a mock “wedding ceremony.” Jackson warned Safechuck that if their secret marriage came out, both of their lives would be over. At age 10, it is easy to see how this might be believed.

In 1993 when the Arvizo boy came forward with allegations of abuse against Jackson, both Robson and Safechuck vigorously denied to the police that such abuse happened to them. Robson even testified to this effect in court.  Safechuck said this, he said, because he was afraid of being caught.

Robbi Ludwig, a psychotherapist said, “adult victims of sexual child abuse may lie to protect the person they love and that is not uncommon.” We must not blame the victims for that. We must never forget that the victims are in the power of the powerful abuser. We must also remember that the boys were too young to give genuine consent.

Years later both boys decided to recant and tell the truth. This can happen. Victims can be released from the grip of the perpetrator and this might happen years later. We should not be surprised when this happens.

Robbi Ludwig put it this way, “very often these children don’t call it abuse because they feel that they wanted it. They went along with it and they loved that the powerful person was giving them attention and they want to protect them, so it is very psychologically confusing which is why it takes many of the victims of abuse so long to come out.”

We have to remember that just because this can happen, does not mean it did happen. We have to remember that Ludwig’s conclusions about the Jackson case were also not subject to cross-examination by an effective lawyer such as Jackson hired. That makes it difficult for us now to discern the truth. So we must be on guard against leaping to unjustified conclusions. If we want to find the truth we must act like an ideal observer who listens with sympathy but always remains free from bias, looks for the best available evidence, listens patiently and carefully to arguments, and uses critical reasoning and not “instincts” or “gut feelings to reach a conclusion. If we are not willing to make this effort we should remain quiet.

Yet I note that a lot of these cases of abuse, such as Bill Cosby and now, allegedly, R. Kelly, and many others, involve a celebrity. I believe that the reason is that these people are uniquely powerful and attractive in American and Canadian society, where celebrity and wealth are literally worshipped. A number of them, like the R. Kelly case and Michael Jackson case involve enabling parents who are blinded by the fame and fortune of the perpetrators. As a direct consequence the victims, or alleged victims, are dangerously subject to the power of the perpetrator, or alleged perpetrator.

A lot of recent cases do not involve celebrities so much as religiously powerful people. I will call the powerful in these circumstances priests (though every denomination has them not just Catholics. The priests are uniquely powerful by virtue of their position. They are seen as gatekeeper of eternal life. They hold the keys to something the victim holds in great value. Who would not value eternal life? What they want, by definition is right and good. Who can complain?

Other recent situations of abuse have involved sports gods. For example, to young people, their sports coaches are also gatekeepers to the holy land of sports fame and fortune. Whatever they say must be right.  No one can resist. Again their parents must be careful.

There is one important lesson here. Power often, though not always, leads to abuse by the powerful over the powerless, and everyone must be relentless and eternally vigilant against the abuse of that power by the powerful, no matter what their sectarian position. And those who want to know the truth must to their best to become ideal observers of the road to truth and cannot take short cuts, though sometimes they of necessity can meandertowards the truth.

Was Michael Jackson guilty? The truth is murky. You decide. I can’t. Not yet. Be careful out there.

People are entitled to the presumption of innocence and Judges should not be rapists or harassers

The recent hearings in the US Senate to consider and decide whether or not Brett Kavanaugh should be confirmed as a judge on the US Supreme Court exposed some of the glaring weaknesses in the American system of judicial appointments to that nation’s highest court. Remember that judges are appointed for life and can have a profound effect on many social issues of great importance. Issues such as the right of women to an abortion, or the rights of a foetus, the rights of gays and lesbians, and countless other important issues. No doubt America should put the best people on that court.

In criminal law there is an expression, ‘better to let 10 guilty criminals off than send 1 innocent person to prison.’ That is acceptable in a criminal court.  Is that the appropriate principle to other important decisions? Not always I would suggest. No one in his or her right mind would say, ‘Better to have 10 rapists as judges than decline one innocent candidate.’

The problem of course is what should the decision makers do when the evidence is not certain or all the facts are not in? That can be difficult. Did the American Senate get it right?

What are people to do when all the evidence is not in? In a criminal court it is clear. The court cannot convict unless it is proven beyond a reasonable doubt that the accused is guilty.  If the judge or jury decides the case is not certain, a verdict of not guilty is required. That is as it should be. But what about other circumstances? What about outside the criminal court?

I think environmental law has found a workable solution.  It is called the precautionary principle. This means that decision makers should act to prevent harm when it is within our power to do so, even when all the evidence is not in. For example, if someone proposes to install a petroleum pipeline that might or might not lead to environmental contamination should the pipeline be approved or not? This principle requires that the pipeline which might cause great harm, only be approved if the persons who wants it gives reasonable credible evidence that it is safe to do so.

If it is not certain whether a particular course of action will create harm or not, as for example when the existing scientific evidence is unclear or uncertain about whether it will lead to serious harm or not, the precautionary principle imposes an obligation on the proponent of the  course of action, such as a pipeline, to prove that it will not lead to harm until further evidence makes it clear that the harm can be averted. In other words, policy makers are required to protect the public when there is a reasonably plausible possibility that a particular action will cause harm.  The decision makers can and should act to do this even it is not certain that the action will lead to harm. These protections can only be relaxed when further sound evidence makes it clear that no harm will result. The onus of proof is on the proponent to establish a lack of harm. Not the other way around.I think the American Senate ought to have been guided by such thinking in the case of Judge Kavanaugh.

In the case of the Senate hearings both the complainant Dr. Christine Blasey Ford and the proposed judge, Kavanaugh made plausible cases in support of their position. Kavanaugh came on strong and made a forceful defence against the allegations. On the other hand, Ford was clearly credible too. She made some inconsistent statements about what happened 36 years ago, but it would have been suspicious if that were not the case. I would say it was not certain beyond a reasonable doubt who was right.

The Senate appointed Judge Kavanaugh on the basis, I believe, that Dr. Ford’s  allegations were not proven. I think the Senate put the onus of proof on the wrong person. It should have said, Kavanaugh must prove he was innocent on a balance of probabilities, not on beyond a reasonable doubt.

Ford’s testimony might not have led to a conviction in a criminal trial, but it certainly was enough to reject him as a judicial candidate for a lifetime position to the highest court in the land. The public should not be required to accept a candidate as tainted as Kavanaugh, even though he might be innocent, because the public should be protected from the immense harm he might inflict on the public as a result of his lifetime appointment unless he could first prove that he was worthy.

Judge Kavanaugh was right when he called the hearing a national disgrace but not for the reasons he said so. It is a disgrace when the weighing of judicial appointments becomes a pure partisan game on both sides. It is a disgrace when an alleged sexual assault victim becomes a pawn in a political game. It is not a disgrace when an unworthy candidate is rejected for high judicial office when on a balance of probabilities, even if not beyond a reasonable doubt,  it is clear that he is wholly unsuitable for that office.

I would put it this way: If you were on the board of your local school division would you hire Brett Kavanaugh to be a janitor for the school? Not me.