Virginia’s Lt. Gov. Justin Fairfax has been accused by two women of sexual assault. He has vigorously denied the accusations and called for an impartial investigation, which he says will clear him.
Within days of the accusations, and without any formal process to determine the facts or assess the evidence, prominent Democrats, including at least five 2020 Democratic presidential candidates, echoed his accusers’ request that Fairfax immediately resign from office. For purposes of political virtue signaling, perhaps this is business as usual. From the perspective of justice, it is appalling.
The reason has nothing to do with whether or not Fairfax is guilty as accused. We do not accord due process to defendants because we think they are innocent, nor deny it to them when we suspect they are guilty. At the most basic moral level, the rules of due process arise from simple humility — from admitting that we can’t know what happened, or who did it, or how much they should be punished until the facts have been fully developed and the evidence assessed under a set of transparent and impartial rules. Whether the case is criminal, civil, or political, that same humility should drive decisions about the accused’s responsibility for an offense that he denies, even a serious offense such as sexual assault.
If proven, the accusations against Fairfax would be grievous crimes. Thus, the obvious arena for their adjudication is the criminal justice system. Despite the lapse of time since the alleged assaults, both accusers apparently still have access to that system in the states, Massachusetts and North Carolina, where the assaults are said to have occurred. That path may now be followed in the case of Vanessa Tyson, who will reportedly discuss her accusation with the district attorney in Boston.
Some have called for the allegations to be adjudicated in a Virginia state impeachment hearing, claiming that such a hearing would afford adequate due process to Fairfax. Both accusers have said they’d be willing to testify at such a hearing. Indeed, after experts expressed concern that the Virginia Constitution may not permit impeachment when the offense in question was committed, as in this case, before the accused official took office, Fairfax’s accusers urged Virginia’s legislature to hold investigative hearings “regardless of what they are called,” in the words of accuser Meredith Watson. Watson has just repeated that request in a new opinion piece published by the Washington Post.
But how could such hearings possibly be fair? No procedural template appears to exist. Fair hearings would have to grant certain fundamental rights to both accuser and the accused, including a chance to present the facts as each party sees them, to test the strengths and weaknesses of each party’s account, and to have the case decided without pre-existing bias for or against either party. In addition, basic procedural issues such as the applicable standard of proof and presumption of innocence, the status of hearsay evidence — which constitutes a huge percentage of the “information” about the case now circulating in the media — the subpoena and other investigative powers of the legislature and its agents, and the relevance of testimony about the character, behavior, history, and any past legal involvement of the parties would certainly be raised.
Tyson and Watson would and should be every bit as concerned about the fairness of the process as the lieutenant governor. For example, the media have reported on financial issues and a prior legal restraining order against Watson. In her Washington Post essay, Watson affirms that in the wake of her accusation she has “endured relentless scrutiny of my personal life” including questions about her personal medical records and financial status. To what extent would this kind of information be admissible in a legislative hearing to decide the truth of her rape charge against Fairfax? Given the history of sexual assault cases, especially the tendency of the defense to convert rape trials into attacks on the victim’s character, a careful and deliberative approach would be essential here.
The criminal law has evolved over hundreds of years to answer just these questions, and it is still far from perfect. How can anyone expect the Virginia legislature, on the fly, to piece together a fair, coherent, and comprehensive procedure for the express purpose of adjudicating a highly politicized case involving not only individual charges of wrongdoing, but also issues of race and gender that are now roiling the entire country? Such a process would be nothing more than a “Justice Parade.”
Beyond the obvious importance of the Fairfax case for the parties and for Virginia politics, the case has potentially far-reaching implications for the crucial issue of ensuring fair process in #MeToo sexual misconduct cases. Both Fairfax accusers made their accusations by memo; initially stated that they preferred not to submit their accounts to investigation or cross-examination, but to broadcast the charges and then return to private life; and both requested that Fairfax respond to the accusations by resigning his office.
Thus, those who responded to the accusations by demanding that Fairfax resign have endorsed a process which would give sexual assault complainants the complete power (1) to decide how, when, and in what venue to accuse someone of serious sexual offenses, (2) to determine how much, or how little, about the charged events will be publicly revealed, and (3) to force the accused from his job before he has had any chance to prove that the charges are false.
Whether an accused person is guilty or not, that is the reverse of justice.
Cynthia Ward is a professor of law at William and Mary Law School in Williamsburg, Va.
