The FairFax Test

When Virginia Lt. Gov. justin Fairfax was accused by Vanessa Tyson of forcing her to engage in oral sex, it was close enough to the edge of possible doubt that by the “weighing of the equitites” one could entertain the possibility that it didn’t happen.

After all, Fairfax was a black Democratic pol, about to replace ol’ Frank “Blackface” Northam, and suddenly, out of nowhere, boom, an accusation of sex assault appears where it was never raised before. That it wasnt corroborated has no legal consequence, but it allows us to escape the sense that it wasn’t of recent creation, whether in whole or in “realization.”

Why it wasn’t raised before, if it happened, is a mystery. When he ran for office, no one came forward. Why Tyson chose not to go to the police if it happened can be rationalized away with the usual excuses, but still raises doubts. The choice to do nothing could mean that she perceived it as consensual at the time, and only by a change in her perspective did it morph into an assault in retrospect.

It also meant that there would be no process by which Fairfax could challenge the accusation, leaving him open to accusation while denying him the due process to clear his name. He would be tainted in perpetuity, but not with certainty.

Then the second bomb dropped, two days after the Tyson “revelation.”

The woman, Meredith Watson, accused Mr. Fairfax of raping her in 2000 while they were students at Duke University, saying in a statement that his actions were “premeditated and aggressive” and demanding that he step down immediately.

What exactly did Fairfax do? Watson calls it “rape,” but that word no longer has meaning. She says it was “premeditated and aggressive,” but those are adjectives, not nouns. These are conclusory, not factual. What conduct does she claim Fairfax did?

The new accusation against Fairfax came from Meredith Watson, who said Friday in a statement through her attorney that she shared her account with several classmates and friends immediately after the alleged assault occurred. Watson did not speak publicly Friday, and her lawyer did not make her available for an interview.

And this time, there was “corroboration.”

As with Tyson, Fairfax has vehemently denied the accusation. But while people might, barely, have been able to get past a first accusation, the second has a geometric effect, even though a cold, sober view would be that it’s addition, not multiplication. It creates the feeling that there aren’t merely two independent, wholly unrelated allegations of misconduct, but what we have come to believe a rapist would do, he raped again. Even if you can shrug  off one, how can anyone doubt two women?

Fairfax called Watson’s accusation “nuts,” raising that he wasn’t the first person she accused of rape. Watson’s lawyer turned it around on Fairfax.

We have heard from numerous press sources that in response to Meredith Watson revealing that Justin Fairfax raped her when she was a student at Duke, Mr. Fairfax has chosen to attack his victim again, now smearing her with the typical “she’s nuts” defense. He revealed that Ms. Watson was the victim of a prior rape. That is true.

…She left a campus party when he arrived, and he followed her out. She turned and asked: “Why did you do it?” Mr. Fairfax answered: “I knew that because of what happened to you last year, you’d be too afraid to say anything.” Mr. Fairfax actually used the prior rape of his “friend” against her when he chose to rape her in a premeditated way.

Fairfax may well be politically dead, as former Gov. Terry McAuliffe has called for his resignation, as well as the usual suspects. That’s the political position, rats leaving off the sinking ship or, as is now the norm, signalling their virtue. Politics is the expoitation of perception, not the ascertainment of provable fact.

Faced with everything he’s done in his life crumbling before him, his support gone, his future dead, Fairfax says he will fight.

Mr. Fairfax has denied both accusations and said Ms. Watson’s was “demonstrably false.” He vowed he would not resign.

“I demand a full investigation into these unsubstantiated and false allegations,” Mr. Fairfax said. “Such an investigation will confirm my account because I am telling the truth.”

Whether a full investigation will serve that purpose is itself a curiosity. Investigations are preludes to trial, not trials. But as Fairfax will at most get a trial on articles of impeachment, which isn’t really a trial at all, he will never have the opportunity to test the allegations against him.

Before the Northam debacle, the name Justin Fairfax meant nothing to me. I’m neither his fan nor friend. But he comes into this morass without the baggage of a Harvey Weinstein, more like an Al Franken, who threw himself under the bus with the help of his closest friends.

The other day, someone raised the point that our hatred and fear of ex-convicts has created a world where they can never be allowed to rejoin society as happy, productive, law-abiding citizens after they’ve paid their “debt to society.” Forgiveness is returning to favor for the formerly incarcerated. It’s been out of favor for decades, yet we’re now pondering how we could have been so blind, so misguided, so hateful toward them.

Is Fairfax, who many assume to be guilty despite there being nothing but hearsay conclusory allegations against him, entitled to the presumption of innocence? The rhetorical argument against it is that this isn’t a criminal trial, that he will only “lose a job” rather than go to prison. This is the current fashion of rationalizing away principle in the name of expediency, just as we did with those “criminals” who were undeserving of a second chance, too risky to welcome back into society.

But the presumption of innocence isn’t merely a technical legal rule to be applied at trial, but a fundamental principle upon which our system is grounded. In most instances, one can’t prove a negative, prove innocence. So a choice must be made, whether to “believe” the accuser because that’s what fashion designers say is in style at the moment,* or hold firm to principle because we will not allow a life to be destroyed unless and until an accusation of rape or sexual assault is proven by being tested in the crucible of an actual trial.

Fairfax will never get that trial. Now he won’t get that trial twice. Can we hold firm to principle, even if it’s nearly impossible to shake off the feeling that he did it? His accusers will never be tested, but we will. We are.

*For the benefit of the thinking-challenged, this does not suggest that the accusations of Tyson and/or Watson are untrue. I wasn’t there. I don’t know. Neither do you.

21 thoughts on “The FairFax Test

  1. L. Phillips

    The tribalism of politics, and of basic human nature, makes it that much harder to assume innocence. When someone stands for positions that seem destructive, self centered or just plain stupid it is a tough slog for me to resist the joy of seeing my strongest opinions of them “confirmed” by accusation.

    When the choices are “first, walk a mile in his shoes” or “to hell with him/her” the latter is so much easier.

    1. SHG Post author

      It’s always easier to embrace the confirmation of the mob than to be a principled contrarian. Them’s the choices we make.

    2. Anonymous Coward

      I see a lot of tribalism here. The people who screamed long and loud that we should “believe the women” when it was a white Republican seem awfully quiet now that the accused is a black Democrat. Even Northam seems to be getting less flak than Kavanaugh for more offensive early 80s yearbook photos. Apparently members of the favored tribe get due process that is denied the enemy.

  2. Joshua Heslinga

    Memorializing, with a slight revising & extending of my remarks, a Twitter conversation with SG about this:

    Me: I agree with key points you make: the presumption of innocence is important generally, the truth may never be known (even if there were something like a trial), & we need more rehabilitation/forgiveness. But it seems reasonable to set a higher standard for leaders – to want people who aren’t accused of serious crimes. And rehabilitation/forgiveness usually requires repentence, which those who deny everything aren’t showing.

    SG: Then you don’t really believe in the presumption of innocence.

    Me: Seems harsh, but I’ll take the criticism without getting angry. I think it’s a tough question because legal standards don’t apply everywhere in life. What’s under discussion is impeachment / resignation / the standard for leaders, which are fundamentally political, not legal.

    Going beyond Twitter:

    What to do with accusations like this is a difficult question. A reasonable person could respond to that difficulty by going hard-core presumption of innocence, like SG. But it’s also reasonable, & something people do all the time, to ask questions and make decisions based on the less than perfect info we have (which a trial won’t cure). E.g. What is the person accused of? What do they admit? Can peripheral facts on either side be verified? Was the accusation made, even privately, before they were famous? Are there reasons or motives to believe the accuser/accused?

    And, maybe most importantly, what is the level of risk we’re willing to tolerate in leaders? Let’s stipulate that if you think there’s almost no change (say 1%) he’s guilty, you don’t think he should resign, and if you think it’s more likely than not (51+%) he’s guilty, then he should resign. But what do we do with the gray area in between? If it’s 25% likely Fairfax is a rapist, is that something we’re willing to tolerate in a leader?

    1. SHG Post author

      You raise the questions that are in people’s minds, which is good. One tweak to the equation: if he was running for office and this was raised, it’s different than when he’s in office, already the recipient of the voters’ trust, and the calls are for his resignation or impeachment.

  3. Pedantic Gramar Police

    There was a time when the king told everyone what to think and his soldiers enforced it with violence. Now they guide our thoughts with media, and violence is mostly unnecessary.

    Is this MeToo movement an organic movement, or is it a top-down project, to convince us that people can be held guilty without wasting time on trials and evidence, and that we only need to believe what the media tells us? Why did Rose McGowan’s story suddenly achieve media prominence, unlike the similar stories that nobody cared about for decades?

    When they say “believe the women” they mean “believe us.” Only via the media can we hear these stories that must be believed. There’s no danger that we will believe the “wrong” stories, because we won’t hear them.

    1. SHG Post author

      That’s a very curious point about Rose McGowan’s story. Was it that Harvey Weinstein was such a valuable target, that Ronan Farrow is such an important reporter or just fortutious timng? Was it something else?

      1. Pedantic Gramar Police

        We know that Weinstein tried to kill the story. Until recently, every negative story about a master of the universe (MOU) was susceptible to being killed, and we only heard these stories during publicity battles between factions. The Dominique Strauss-Kahn rape story for example, removing him as IMF director.

        Suddenly these stories are not being killed, and they are proliferating. Have the MOU lost their ability to control the narrative? I don’t think so. They are promoting a new narrative, and Weinstein et al. are sacrificial lambs.

  4. JorgXMcKie

    So, the old “nuts and sluts” defense is no longer valid? I wouldn’t miss that. However, I really do want to preserve both due process and “innocent until proven guilty” as much as possible.
    It is probably impossible today, but having an actual single standard would be a big improvement over the current situation.

    1. SHG Post author

      The problem with the old “nuts and sluts” defense was that it was abused and falsely applied. The reaction has been to reject it entirely rather than selectively. Here’s the problem: what do you do when the accuser is nuts, and sometimes the accuser is, in fact, nuts?

  5. Leo Beilin

    As a male I can conceptualise a male using overwhelming force that a female is unable to defend against w/r vaginal rape ,,,but forced oral sex ? Even a toothless female’s jaws are strong enough to conceiveably gum down hard enough to cause enough pain to make her assailant desist.
    So far in all the published cases none of the aggressors have required emergency care for a lacerated penis.
    The female friends I have asked (all feminists) refuse to answer

    1. Sacho

      Eh. Under the threat of physical violence, it’s very conceivable that a female(or a male) would rather endure forced oral sex than get sent to the hospital with broken ribs. However, it’s anathema to feminism to claim that rape(in all its variations) isn’t the worst crime in the world, so we have to pretend that these reasonable choices don’t exist.

      1. Leo Beilin

        Think Faiefax or Wienstein and their ilk would risk having assault and battery added to attempted or completed rape charges after the woman called 911? . Only an anonymous street rapist would risk that.
        As a physician,I can tell you that any woman coming into an ER with serious injuries will swiftly find the police visiting her before she ‘s discharged or admitted as an inpatient. In fact the ambulance crew will probably called ahead.

          1. Pedantic Gramar Police

            This is part of the reason why adjudicating these issues in the court of public opinion is so dangerous. Most of the legal defenses to sex charges that would be used in a courtroom are ineffective or even counterproductive in the COPO. Discussing those defenses is difficult even here; statements that would be routine in a courtroom could cause a firestorm of outrage on Twitter and the forming of an Internet mob.

            I almost want to say that there should be a law, but that’s not the right answer. What we need is for people to think for themselves and see through the “internet mob” outrage that is created by the media in these cases. I’m not hopeful.

            Posting early this weekend because I am in Manhattan (waves).

  6. B. McLeod

    One of the earlier accounts I read indicated that Ms. Tyson had reported her claim, at least to the WaPo, but the paper spiked the story, after its investigation was inconclusive (i.e., with a “he said, she said,” WaPo, at the time, chose not to “believe the victim,” and has admitted as much in its later coverage).

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