Kavanaugh was old enough to know better — and to suffer the consequences

At the University of Baltimore School of Law, we have a clinic, the Juvenile Justice Project, in which students work with faculty to seek the release of people sentenced to life in prison for crimes committed before they were 18. The clinic does not argue that the crimes of its clients are not considered serious or that there should not be punishment for them, only that, in accordance with recent Supreme Court decisions, their clients’ youth should be considered before sentencing them to life in prison. They still pay a price, as they should, for their crimes, some of which were committed when they were as young as 14.

I thought of these people when I heard about another alleged crime committed in Maryland decades ago: the attempted rape of Christine Blasey Ford, which she claims was perpetrated by Supreme Court nominee Brett Kavanaugh decades ago, when both were in high school; he was 17 and she 15 .

Specifically, I am intrigued by those who say that even if he did to her what Ms. Ford says, it should not prevent Judge Kavanaugh’s ascension to the Supreme Court because it happened when he was so young. What concerns me is that a person can spend the rest of his life in prison for a crime committed in this state when he was 14, while some argue that another person should be allowed to ascend to the highest court in our land — without penalty — even if he committed a serious and violent crime at age 17.

To dismiss the crime Mr. Kavanaugh is accused of because he was young when he is alleged to have committed it would create a double standard that seems based at least somewhat on class and race. If 14 is old enough to go to prison for decades, 17 is old enough to forfeit a position that requires the highest ethical standards and regard for the law.

Our clinic’s clients have served decades behind bars. Their crimes involved homicides, the taking of a human life — unquestionably serious and violent. Although homicide may be deemed the more serious crime, there’s no question that, like manslaughter and murder, sexual assault is also serious and violent. In Ms. Ford’s case that is evidenced in part by her repeating the incident to a therapist decades after she said the attack occurred. All of us now understand that such incidents are crimes of violence and deserve to be treated accordingly.

As a society, can we say that 14 and 15 year olds who commit serious crimes are old enough to spend most or all of their lives in prison, but a 17 year old who commits attempted rape was so young at the time of the crime that it should not stop him from being appointed to the Supreme Court? Such a double standard is intolerable both in its reality and its perception. It becomes still more intolerable when you realize that the clinic’s clients are mostly black and were poor when their crimes were committed, whereas Judge Kavanaugh is white and was attending an expensive private school when his alleged crime took place.

The Senate Judiciary Committee has the difficult task of sorting through competing stories to get at the truth. Most hope that they will do a much better job than the committee did in the Clarence Thomas/Anita Hill hearing held in 1991. The outcome should not depend on a narrative some wish to perpetuate, but instead on ways that factfinders typically use to arrive at truth, such as an examination of the motives of the parties and the existence of corroboration. This is not a time to prejudge the facts, but neither is it a time to minimize the significance of the harm involved or to use a different age standard for evaluating this alleged crime than we do for others.

Steven P. Grossman is the Dean Julius Isaacson Professor at the University of Baltimore School of Law; his email is sgrossman@ubalt.edu.

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