Apply Susan Collins’ wise standard to the #MeToo case against Justin Fairfax

As lieutenant governor, Fairfax would be first in line to succeed embattled incumbent Gov. Ralph Northam, should Northam resign following his own separate racial scandal. But Fairfax has now been credibly accused of sexually assaulting a woman in his hotel room during the 2004 Democratic National Convention, throwing his own political future into doubt.

In a detailed statement issued through her attorneys on Wednesday, Dr. Vanessa Tyson, a political science professor at Scripps College in California, described an encounter with Fairfax during which, she said, he forced her to perform oral sex. Fairfax acknowledges that he had sex with Tyson at that time and place, but claims the incident was entirely consensual.

Fairfax’s public defense has been disturbing in its content. He first leveled unsubstantiated charges that “red flags” and “inconsistencies” had been found in Tyson’s account by objective journalists; he then appeared to invite misleading conclusions about Tyson’s charge against him based on unrelated statements she has made about being sexually molested in childhood; and then, based on reports from multiple sources, he launched a verbal attack (“fuck that bitch”) on Tyson herself. Fairfax’s office denies this last allegation. These actions might impugn the credibility of Fairfax’s denials.

Nonetheless, Fairfax directly and unequivocally disputes Tyson’s central claim, that he sexually assaulted her. Tyson’s allegation is clearly credible and contains key facts such as the time, place, and circumstances surrounding the alleged assault. If the case were decided under the “Believe Survivors” mandate, the lieutenant governor should now be pressured into resigning his office, ending his political career and overturning an election. Some politicians have already called on him to do so. But many others have so far refrained, calling instead for a full investigation of the facts and for a deliberative approach to assessing them. In short, calling for a rational process that affords Tyson a respectful hearing while also acknowledging the importance of an accurate decision, especially given the potentially serious consequences to the accused of an unjust adverse conclusion.

The latter approach, emphasizing fairness to both parties, is the best way forward. Since it burst into the public consciousness little more than a year ago, the #MeToo movement has struggled to balance its political mandate to “Believe Survivors” with the obligation, in basic fairness, to achieve accurate and proportional decisions in sexual misconduct cases that arise in private and political, as opposed to court-centered, settings.

If “Believe Survivors” is taken to be a literal rule of decision in disputed cases of sexual assault, it renders fairness impossible. In a plain language interpretation, “Believe Survivors” necessarily produces a rule that all credible accusations must automatically result in punishment of the accused. In noncriminal cases, of course, such punishment typically involves firing, forced resignation, or banishment from public discourse.

On the other hand, if “Believe Survivors” simply calls for a full hearing of sexual misconduct charges, followed by a rational assessment of the facts geared toward an accurate decision, it suggests a process that both moves us forward, from the days when claims by female victims against powerful men were routinely suppressed, and responds to the most fundamental claims of decency and fairness.

To give coherent and principled structure to such a process, we do not need to look far. In her courageous and thoughtful speech on the floor of the Senate last October, Sen. Susan Collins, R-Maine, outlined the principles that should inform the process of deciding sexual misconduct claims outside of a court. In the speech, Collins explained the basis of her conclusion that Dr. Christine Blasey Ford’s sexual assault allegations against then-Supreme Court nominee Brett Kavanaugh had not been proven.

In doing so, Collins called for a decision-making process that emphasizes fairness over ideology. And she named the foundational concepts that should ground that process: First, a respectful hearing of sexual misconduct allegations. Second, a careful and deliberative examination of all the relevant facts. Third, a presumption of innocence, which should exculpate the accused in cases where the facts do not prove the accused’s responsibility by at least a standard of “more likely than not.”

In one of the most powerful parts of her speech, Collins denounced the toxic impact of political ideology and partisanship on the Kavanaugh confirmation process. She condemned interest groups that “whip[ped] their followers into a frenzy by spreading misrepresentations and outright falsehoods” and “[o]ver-the top rhetoric and distortions” of Kavanaugh’s record and testimony. She expressed the hope that the process has “finally hit rock bottom” and can now rebound. She warned, in what has become the most famous statement in the speech: “We must always remember that it is when passions are most inflamed that fairness is most in jeopardy.”

Fairness requires that we step aside from political ideology and look to more fundamental principles, that we investigate the facts impartially before imposing sanctions on an accused person who disputes the charge.

Collins’ call for fair process resulted in death threats against her. But now, as they attempt to resolve a credible claim of sexual assault against Fairfax, a popular Democrat who is viewed as a rising star in the party, many #MeToo advocates appear to be adopting Collins’ fairness-based approach. That is a very good sign.

Cynthia Ward is a professor of law at William and Mary Law School in Williamsburg, Va.