What if Kavanaugh did it? A Canadian Perspective on Youthful Offenders

I start by saying that I have no idea whether Brett Kavanaugh sexually assaulted Christine Ford in the early 1980’s or not – if you’re being honest with yourself, unless you’re Ford or Kavanaugh, neither do you. The truth may come out in the course of Kavanaugh’s confirmation hearing or other investigations, but for now anyone with a strong view on his guilt or innocence is just telegraphing their own biases.

Instead, I’m interested in the debate coming from some of his defenders – though, pointedly, not him, he apparently denies the allegation entirely – that even if he is guilty, his actions as a teenager 35 years ago shouldn’t be relevant today. This, in turn has sparked allegations of that being a “boys will be boys” defence of sexual assault.

I suggest, at least from a Canadian perspective, that that last allegation is unfair. Canadians generally take a view that crimes you commit as a teenager -even serious, horrible, crimes -shouldn’t be held against you in the future, which viewpoint is reflected in our criminal and young offenders law. If that’s a reasonable position vis-a-vis youthful offenders who have been convicted of crimes, surely it’s a reasonable position against similar youthful offenders who are accused of similar crimes.

Consider the following scenario: A 17 year-old – let’s call him K.B. – is convicted in Canada of doing what Brett Kavanaugh is accused of having done, namely trying to forcibly undress and sexually assault a teenage girl. The 17-year old is convicted of sexual assault, receives a youth sentence, serves it, and returns to society.

After being released, K.B. turns his life around, ultimately becomes a lawyer, then a respected judge, and finally is considered for appointment to the Supreme Court of Canada.

Now, in that scenario – which differs only from the allegation against Kavanaugh in that K.B. has actually been convicted of a criminal offence – under the Canadian Youth Criminal Justice Act no one would be allowed to publish that K.B. had ever been convicted of sexual assault. His youth record would have been long since destroyed. His name wouldn’t turn up in any criminal record check. Any online Twitter or Facebook wars of the sort we’ve seen in the Kavanaugh case could result in criminal convictions and jail terms for anyone making known to the public that K.B. had committed a criminal offence. If a lawmaker, a-la-Dianne Feinstein, announced in the middle of K.B.’s confirmation hearing (Canada has recently adopted a practice of having a parliamentary committee rubber stamp Supreme Court of Canada appointments) that he had been so convicted, query whether that lawmaker could be convicted of a criminal offence – certainly any media organization who rebroadcast his or her allegation would be guilty.

In short, as a matter of law and policy, in circumstances similar to that of Brett Kavanaugh, Canadian law is premised on the assumption that criminal acts that someone, K.B., in my example, commits in their youth shouldn’t be used against them in their adult life, years after the fact. In fact, our law goes out of its way to punish anyone who would seek to disseminate information about one’s youthful criminal acts, by imposing criminal sentences of up to two years in prison. We use criminal law to ensure that youthful offenders don’t have their past record used against them, reflecting a desire to ensure that they can get a clean start as adults (I’m oversimplifying a bit – there are circumstances where a young offender’s record can be used as an adult, but not likely in the example I’m giving here).

And there’s a good reason for that policy. It doesn’t mean that we condone the criminal acts of youthful offenders, or think that they aren’t serious. It means that we hold youthful offenders to be less morally culpable than adults – no doubt for the same reason we don’t let them vote, drink, or rent cars. People can disagree with that view (though, ironically, usually disagreement comes from the right, not the left), but it is a fair and reasonable policy.

Seem in that light, the position – which, again, Kavanaugh is not making – that a criminal act that he may have committed as a teenager is not relevant 35 years later is not an outlandish statement, or a defence of sexual assault, it reflects the apparent societal values of Canadians reflected in our criminal laws that young offenders shouldn’t have criminal acts committed in their youth held against them for the balance of their lives.

So, my question to the gallant twitter warriors – particularly the Canadian twitter warriors – who think that Brett Kavanaugh’s alleged actions as a teenager should be held against him 35 years later, do you think that the same should be true of a Canadian who was convicted of sexual assault (or any other serious crime) as a teenager? And if so, does that mean you support a more or less wholesale re-writing of the Youth Criminal Justice Act? I’m sure the hard-line law-and-order conservatives would love to count on your support.

And to the Canadian law-and-order conservatives tweeting that what Kavanaugh’s might (or might not) have done as teenager is irrelevant today, hey, fair enough, that’s consistent with Canadian law on the point – but I better not hear you yapping about how the Youth Criminal Justice Act gives a free pass to thugs.

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