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 possible doubt that the “weighing of the equitites” that 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 isn’t merely two independent, wholly unrelated allegations of misconduct, but what we have come to believe a rapist would do, rape 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 innocent. 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.

The FairFax Test curated from Simple Justice