- Rebecca Bromwich
#KidsToo Considering Dr. Christine Blasey Ford, Judge Brett Kavanaugh, Youth Justice, and the Rights
I believe Dr. Christine Blasey Ford. It was remarkably brave for her to come forward. She revealed important truths about gender inequalities that persist.
Having said that, I also believe it is crucial that a missing perspective needs to be brought to bear on the controversy surrounding Justice Brett Kavanaugh’s appointment to the US Supreme Court. The frameworks of youth criminal justice and children’s rights provide a lens that shows the spectacle of the US Senate confirmation hearings of October 2018 to have been a travesty in ways additional to those inflaming popular sentiment around the #metoo and #himtoo controversy. This is not an issue only of politics, or gender or power or racial dynamics and inequalities between adults, but of serious disregard for, and violation of, the rights of children and youth.
Since the inception of the world’s first juvenile court, somewhat ironically, in Ohio, USA[1] all civilized countries have put in place specific mechanisms to address the criminal accountability of youths. These laws are set forth in recognition of the vulnerability and diminished capacity of youth based upon their immature cognitive, psychological, and physical, developmental stage.[2] The world’s nations also came together, in 1997, to sign the United Nations Convention on the Rights of the Child.[3] More countries have signed on to this treaty than any human rights treaty in history. It has been ratified by 196 nations. It has been signed by every member of the United Nations, except the United States. This Convention provides protections to youth that reflect a consensus of the rest of the world that the USA has refused to sign on to.
Let’s consider the allegation. You can read her full statement here:
To summarize:
Dr Ford alleges that Kavanaugh sexually assaulted her in the summer of 1982 when she was 15 and he was 17. She has testified that, while his friend Mark Judge watched, Kavanaugh, intoxicated, held her down on a bed with his body, grinding against and groping her, covering her mouth when she tried to scream and trying to pull her clothes off. Finding it hard to breathe, she thought Kavanaugh was accidentally (her emphasis) going to kill her. She recounted escaping when a third party, Judge, jumped on the bed and toppled them.
It is illustrative to consider how this allegation, taken as true, would have been dealt with in Canada, under our Youth Criminal Justice Act RSC 2003 c.1. Dealt with through the interaction of children’s rights and juvenile justice, if he was guilty, a teenaged Brett Kavanaugh, and any teen who acts how he did, would be held accountable. However, the form of that accountability would be structured with a view to children’s rights.
Had this incident transpired in Canada, the outcome would have been vastly different.
Under Canadian criminal law, if we accepted this allegation as completely true – as I do – it would suffice to constitute sexual assault. Under the Canadian law, sexual assault is prohibited under ss. 271 and 272 of the Criminal Code of Canada RSC 1985 C. 46 and is defined as follows. Sexual assault is an assault, within any one of the definitions of that concept in s. 265(1), which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. Assault is defined as unwanted touching. Persons who are guilty of sexual assault are, pursuant to the Criminal Code, liable to a range of sentences depending on the circumstances and depending upon whether the Crown has proceeded summarily or by indictment.
If Brett Kavanaugh, at age 17, been found guilty of sexually assaulting Dr. Ford, under Canadian law, as it would have been under the legal regimes in place across the western world, in accordance with the Rights of the Child provided for under the UN Convention on the Rights of the Child and juvenile justice, his identity would have been withheld. For that matter, a publication ban would have been rendered against revealing Dr. Ford's identity. Since youth records are sealed or destroyed within five years after a youth finishes serving a sentence, unless the guilty finding is for murder, manslaughter, or aggravated sexual assault, even a guilty verdict on all of these facts against Brett Kavanaugh as youth would have been inadmissible against 51 year old prospective Judge Kavanaugh in 2018.
The youth justice regime in Canada as well as parallel regimes across the world, are designed to protect youths, and their future adult selves, from precisely the spectacle, and the political manipulation, that Ford and Kavanaugh underwent last week. Yes, there is much to be concerned about in Kavanaugh’s judicial record, and yes this testimony revealed important concerns about his demeanour, but, as it came at the violation of the rights of the child, both of Dr. Ford, and of Brett Kavanaugh, and resulted in their mutual humiliation, I would submit that demeanour testimony came at far too great a cost.
On the international stage, the Kavanaugh confirmation hearings have called into question the credibility of the US Supreme Court as an institution, and even of American democracy. They should also serve to demonstrate the importance of protecting the rights of youths and children. It is certainly worth opening up a discussion of why the United States remains a global outlier in failing to sign on to the United Nations Convention on the Rights of the Child.
Endnotes
[1] F. R. Aumann, Juvenile Court Movement in Ohio, The, 22 Am. Inst. Crim. L. & Criminology 556 (1931-1932)
[2] Bromwich and Bala, “Foreword” in Bala, Hornick, Howard, and Paetsch, eds. Juvenile Justice Systems: An International Comparison of Problems and Solutions (2002).
[3] https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en
