A Feminist and Comparative Reflection on Judicial Appointment and Sexual Harm

I write this reflection as a feminist scholar whose work over two decades has addressed sexual violence, gender-based harms, impunity and justice for women and men whose lives have been irrevocably changed as a consequence of sexual violation. As a comparative and international law scholar teaching in the United States, I am acutely aware not only of the potential, domestic judicial consequences of the allegations of sexual assault against Judge Brett Kavanaugh, but of the ways in which these allegations and the treatment of Dr. Christine Blasey Ford will be viewed across the world.

Kavanaugh finds himself in an uncommon situation for a senior judge. Allegations of sexual misconduct by senior judges and judicial nominees have been rare globally. This is not to suggest that judges are per se less likely to engage in sexually inappropriate or criminal conduct. However, the paucity of complaints could indicate both the effectiveness of judicial appointment processes in selecting candidates, as well as the substantial barriers given the status and deference accorded to judges in most jurisdictions to surfacing such allegations for victims. A quick comparative search reveals sexual violence allegations involving senior judges in Costa Rica, India and Namibia. The allegation of sexual misconduct in all of these cases resulted in a combination of criminal process, judicial investigation and administrative/police investigations. None of the judges in these cases continued to serve in a public judicial role.

The significance of claims against judges cannot be underestimated. Judges make decisions every day that affect the ordinary lives of men and women in almost every aspect, including their most intimate sexual and familial rights, duties and privileges. When we stand back from these particular allegations against Kavanaugh, we can reflect upon the fact that should he be confirmed, he will be joining an overwhelming and historically male court, where two men will have been accused of sexual assault against women they knew, and both will have life-time appointments.

From any perspective, feminist or other, the combination of serious allegations of sexual assault and the fairness of process assessing those claims, underscores the precarious issue of legitimacy. The Supreme Court will inevitably make decisions concerning women’s rights, women’s equality, women’s exclusion and harms to women. The U.S. Supreme Court is also, to state the very obvious, a court that other courts around the country and the world watch carefully. It is, in theory, a standard bearer for the rights of all, as protected and enabled by the Constitution. From a global perspective, the nuance and detail of Senate maneuverings around evidence giving, corroborating evidence and the timing of testimony will likely be lost. But the wider messaging about judicial accountability, fair process and the trauma and harm experienced by victims of sexual violence, which continues to be broadcast by Kavanaugh’s confirmation process, is being heard loud and clear around the world.

Photo by Chip Somodevilla/Getty Images

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).