The Fundamental Injustice of Old Allegations

by David French

Barring a stunning admission or equally stunning retractions, it’s safe to say that we’ll never know with certainty what happened — if anything — between Herman Cain and his accusers. We’ll be able to make educated guesses, but those guesses will be drawn primarily from our subjective judgments of character and veracity but without reference to the kinds of evidence common in sexual-harassment cases. Corroborating evidence like hotel receipts are likely long-destroyed (very few businesses have record retention policies permitting retention for more than a few years), memories are impaired or embellished by time, and the lack of any contemporaneous legal complaints means that the parties were not subject to the under-oath crucible of depositions and other forms of discovery. In other words, the only real “evidence” is the accusations themselves (and spare me any argument about the very nominal settlements — such tiny amounts mean only that a claim was made, not that it had any credibility).

This is unjust . . . to Herman Cain. He faces old claims from women who obviously felt that the initial incidents (if any) didn’t merit a legal filing. In some ways, Herman Cain faces a more difficult challenge than Clarence Thomas. At least Justice Thomas had the opportunity to confront his accuser in a format where Americans were able to weigh their competing stories, saw them competently cross-examined by senators from both sides, and were able to reach a judgment, a judgment that was decisive at the time: Justice Thomas had been wrongly accused. As painful as that experience was, I wonder if it is ultimately less painful than shadow-boxing against accusers whose celebrity attorneys parade them on the morning shows, making allegations that are impossible to disprove yet equally impossible to ignore. Herman Cain is being forced to prove a negative — without access to contemporaneous evidence.

There is obviously no statute of limitations on accusations, and it is certainly possible that the claims are true in whole or in part, but the very age of the stories themselves — combined with the total absence of tested (or testable) legal claims — should shape our judgments. As for me, after more than a week of excruciating public controversy, I’m still giving Herman Cain the benefit of the doubt.

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