Legal Issues in V Tyson v. Justin Fairfax Trial or Hearing; Consent, Lack of Outcry or Report, Later Contacts, Could Be Crucial
WASHINGTON, D.C. (February 8, 2019) – Two ways to shed light on the allegation by Professor Vanessa Tyson that Virginia Lieutenant Governor Justin Fairfax sexually assaulted her would be a hearing and investigation by a legislative committee or special commission, or a civil law suit by Tyson for battery, notes public interest law professor John Banzhaf, who suggests that such proceedings would probably involve legal as well as factual issues, and be far preferable to simply “trying” the case in the “court of public opinion.”
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A third possibility - a criminal investigation and possible trial - is unlikely because of a 15-year statute of limitations on a crime which allegedly occurred in 2004, and because Tyson would not be able to obtain the vindication she seeks by winning the case with proof beyond a reasonable doubt; an almost impossible burden to meet in any "he said she said" sexual assault case.
Justin Fairfax, in challenging Tyson to initiate such a civil law suit to help resolve the matter, presumably could waive any statute of limitations defense applicable to a civil proceeding.
Banzhaf points out that either of these two proceedings would require both parties to tell their respective versions of events, not through carefully crafted lawyers' statements and brief sound bites, but rather under oath and therefore subject to severe penalties for perjury.
Both would also be subject to what is commonly said to be "beyond any doubt the greatest legal engine ever invented for the discovery of truth" - cross examination.
Indeed, notes Banzhaf, courts have frequently held that cross examination is essential in trying to get to the truth in those sexual assault cases where there is virtually no evidence beyond the statements of the two participants, and refusals to permit cross examination have been held to amount to a denial of Due Process and fundamental fairness.
At stake, suggests Banzhaf, is not just the reputation - and possible future as governor - of Justin Fairfax should the current Governor and Attorney General be forced to step down over blackface concerns, but two other issues which arguably transcend his specific situation.
One is whether any person's career and future should be ruined solely because of one uncorroborated allegation - of sexual assault or otherwise - and without any opportunity for the accused to defend against it in an appropriate proceeding where the accuser can be confronted after being sworn in, and be required to testify subject to cross examination.
A second is whether the will of Virginians who voted for a Democratic executive should be frustrated - if both the Governor and the Attorney General leave their positions over issues of blackface, a Republican becomes governor - based solely upon a single allegation which apparently is uncorroborated, and not made under oath or subject to cross examination.
A key issue, both factual and legal, will be consent.
At least in a civil proceeding - and arguably also important in a legislative hearing - where as here both parties apparently agree that some type of sexual act occurred, the issue is not whether the woman meant not to consent, but rather whether the man acted with the intent to engage in the act even if she did not consent. The difference - his view rather than hers - can be crucial.
In many situations involving sex, consent need not be express or even verbal. Indeed, common sense and portrayals in countless books, movies, and TV programs tell us that women rarely will say something like "yes, I do consent to vaginal (or oral) sex."
Instead, once a couple goes to a hotel room with a bed and begins kissing, a failure of the woman to affirmatively negate her consent by saying "no" (or something like it) can imply the required consent.
More precisely, if a woman goes to a hotel room with a man and responds to his kissing, a jury is likely to find that she consented to further sexual activity unless and until she says no, makes a cry for help, or does something else to make it clear that she wants to stop. Here Tyson's statement reads:
"What began as consensual kissing quickly turned into a sexual assault. Mr. Justin Fairfax put his hand behind my neck and forcefully pushed my head towards his crotch. . . . He then forced his penis into my mouth. Utterly shocked and terrified, I tried to move my head away, but could not because his hand was holding down my neck and he was much stronger than me. As I cried and gagged, Mr. Fairfax forced me to perform oral sex on him. I cannot believe, given my obvious distress, that Mr. Justin Fairfax thought this forced sexual act was consensual."
Justin Fairfax's version is vague and lacks any real detail. He simply called Tyson's account "surprising and hurtful" and said, "I have never done anything like what she suggests. . . . At no time did she express to me any discomfort or concern about our interactions, neither during that encounter nor during the months following it, when she stayed in touch with me, nor the past fifteen years. She in no way indicated that anything that had happened between us made her uncomfortable."
But what is not clear - and which cross examination would presumably explore - is whether she ever said words such as "no" or "stop," whether she attempted to scream or otherwise cry out for help, and whether Justin Fairfax might have misinterpreted what she termed her "obvious distress" as a gagging reflex or as something other than a clear negation of any consent.
If, as it appears, she never said "no" or cried out, there may be valid explanations, but an exploration, examination, and evaluation of those reasons, and how clearly her so-called "obvious distress" unambiguously communicated to Justin Fairfax that she wanted to stop, are among the important issues which probably should be explored in a hearing and/or trial.
From a trial we might also determine whether either of both parties might have been drinking; a situation which would interfere not only with their ability to recall years later the precise events of that encounter, but even their ability to communicate through actions as well as gestures during the activity in the hotel room.
Another discrepancy which should be explored concerned subsequent contacts. Justin Fairfax maintains that in the following months they "stayed in touch" and that Tyson never even indicated that anything which had happened made her uncomfortable. Tyson says "I consciously avoided Mr. Justin Fairfax for the remainder of the convention and I never spoke to him again."
If, as Justin Fairfax maintains, she never indicated to him - or apparently to others - that a criminal assault had occurred, that might suggest that she did not regard it as such, especially since he was in no position to retaliate against him, nor did she need his support or recommendation regarding her career.
Indeed, as a tenured professor, she has more job security, and protection from retaliation, than most women in America.
When forced to testify, Tyson would have to explain why she apparently did not mention this 2004 event until very recently, especially since she enjoys job security and freedom from his influence.
Returning to the political impact, it is quite possible that both Northam and Attorney General Mark R. Herring will be forced out of office over blackface incidents, although calls for such actions appear to have moderated somewhat by Thursday.
While many attribute it to crass political considerations, Banzhaf also notes that many well known, well liked, and respected people have also appeared - some more recently and quite publicly - in blackface. This list now apparently includes television personalities Jimmy Kimmel, Jimmy Fallon, Ted Danson, Joy Behar, Billy Crystal, and even Judy Garland.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf