This is the third installment of a three-part series. This article will address why judicial independence is especially important in sex offense cases, and offer some thoughts on the judicial training mandated by Chief Justice Rabner.

The recent social, political and judicial uproar that sparked this series of articles has also prompted the Chief Justice to order special judicial training. The hubbub has resulted in serious concern about judicial independence from the criminal defense bar of this state. Well-crafted statements addressing the issue were released by the New Jersey Office of the Public Defender and the Association of Criminal Defense Lawyers of New Jersey, which ably articulate the importance of judicial independence and its centrality to the criminal justice system. This article will focus on what makes judicial independence so critical to sex offense law—the guarantee of “justice for all.”

Judicial independence—the ability of judges to decide cases without fear or improper influence, based solely on the law and facts presented—benefits everyone. However, in the real world, judicial independence is far more important to some, than others. Oppressed communities, despised individuals, and cases that turn on unpopular issues are extraordinarily dependent on the ability and willingness of the courts to uphold individual rights, and resist social and political passions.

The community of individuals who have been convicted (or adjudicated delinquent) of a sexual offense represents a classic example of a despised group whose issues are highly unpopular. Sex offenders are, arguably, the citizens most dependent on the rule of law to protect their rights, and resist the tyranny of the majority. However, every time a judge removes a registrant from Megan’s Law or interprets a provision of sex offense law, that judge is potentially antagonizing one of the other branches of government, victims’ rights groups and the public in general.

While any case or controversy may engender backlash, in sex offense matters the backlash is more intense. For example, an insensitive remark in a burglary case receives little public notice; however, such a remark in a sex offense case brings social and political unrest, and unusual measures such as judicial re-training. To be fair, some degree of enhanced sensitivity toward sex offense matters (as compared to other criminal matters) is warranted because of the exceptionally impactful physical, emotional and psychological experiences of those who have been victimized. However, excessive deference to one party in litigation inevitably leads to a disadvantage to the other party.

Ultimately, if the matter is to be approached with any degree of intellectual honesty, the question must be asked: Where does appropriate judicial sensitivity stop, and a threat to constitutional rights and judicial independence begin? That critical point is reached the moment that the rights of the defendant (or suspect) begin to erode—because a judge (prosecutor or detective) has altered the balance between the rights of the accused, and the rights of the accuser. Moving the goalpost of even-handedness in order to be sensitive to an accuser may be politically correct, but it is judicially toxic—because it does not support the presumption of innocence. As a definitional matter, judicial objectivity is linked to the presumption of innocence in a directly equivalent relationship.

Whenever the presumption of innocence is not fully in effect, the judicial objectivity point-of-balance is compromised. By this definition, the implicit bias of over-sensitivity to sex crime accusers (at the expense of the rights of the accused) is visible on a daily basis in courts across the country. It exists when, as a public policy, an accuser is assumed to be telling the truth, and must be believed; and also when an accuser is referred to as a “victim”—prior to proof of the allegation. A more harmful variant is the frequent use of pejoratives—referring to a defendant as a monster, rapist or pedophile in pre-conviction courtroom communication. Such speech, at best, is more prejudicial than probative and is rarely prevented or censured.

Among the tsunami of issues related to sex offense matters that has flooded our society are some that are directly relevant to the functioning of the judiciary: concepts such as “believe the accuser” are explicit calls to abandon objectivity, and leave fundamental fairness vanishing in the wake of social and political fervor. But the criminal justice system does not have the luxury to follow this siren song of judicial ruin—if it wants to remain the guarantor of “justice for all.”

Victim-centered investigation and prosecution presume guilt —not innocence. Public policy and political pressure have transformed law enforcement investigations from their historical purpose—to ascertain the truth of what happened—to confirming (validating) that the crime, as asserted by the accuser, occurred. This was ensconced in a 1998 protocol distributed by the New Jersey Attorney General’s Office entitled, Standards for Providing Services to Survivors of Sexual Assault, which contains the following prime directive: “The physical, emotional and psychological well being of a survivor of sexual assault is given precedence over all other matters.” Other telling phrases include: “This system must assure that all who report crimes committed against them will feel affirmed and supported. … [I]t is vital that … victims feel that they are … believed.” Finally, the Attorney General defines a victim-centered approach as “the systematic focus on the needs and concerns of a sexual assault victim to ensure the compassionate and sensitive delivery of services in a nonjudgmental manner. In a victim- centered approach, the victim’s wishes, safety and well-being take priority in all matters and procedures.”  [Emphasis added.]

The “services” that the statement refers to in a single word, are actually the entire operations of the criminal justice system. Therefore, the mandate that “delivery of services” be made in a “nonjudgmental manner” is a demand that quashes the investigative curiosity and intellectual honesty of the criminal justice system. This policy’s explicit command that the victim’s wishes “take priority in all matters and procedures” is an overt directive to shift the balance of objectivity between the accuser and the accused; and therefore, to abrogate the presumption of innocence of the defendant (or suspect).

Though the motive may be laudable, over-sensitivity to an accuser threatens due process and judicial independence, by compromising objectivity. But the #MeToo movement, and the victims’ rights movement before it, seem to suggest that a re-balancing of rights in sex crime matters is called for—that sensitivity to the accuser should preponderate over the rights of the accused (especially when the two are in conflict). This message confronts the identity of the courts by requiring a definitional choice to be made: Should the business of the courts be more about sensitivity, or objectivity?

Based on the structure of our government and the needs of our society, the judicial system must favor objectivity over sensitivity—every time—if it aspires to be a forum that protects the rights of all parties. Sound cold? Remember that there are many organizations that offer legal, psychological and medical resources to assist and treat victims of sexual crime, and there is no shortage of victims’ rights advocacy groups. The criminal justice system, however, is not a support resource or advocacy group, though it should cooperate with such organizations when appropriate.

The harsh truth is that in order to fulfill its role with fidelity, the judiciary must be uncompromisingly clear in its own identity: Courts resolve disputes. Full stop. They must be neutral and objective in their operation, or the public will lose all confidence in their good offices. As applied to the criminal justice process, this requires the presumption of innocence, and that allegations be proven beyond a reasonable doubt, with admissible evidence. Anything less, anything different, is anything but justice.

The core issue is the purpose of the courts in our government and society. Asking the courts to be sensitive in sex crime matters is like asking prisons to understand the role that mental illness plays in incarceration. Sensitivity and understanding may be helpful and appropriate, but it must not require those entities to transform their role beyond the bounds of their institutional purpose. The courts are no more a substitute for social welfare organizations than prisons are a substitute for mental hospitals.

Consistent with this logic, it is precisely the identity and purpose of the judicial system that provides the North Star by which the recently proposed judicial training program should steer its course of instruction. Rather than victim-centric sensitivity training, the waypoints on the journey toward a better judiciary should be objectivity, integrity, balance and information.

Objectivity. The proposed judicial training should acknowledge that it is bias itself—in whatever form it takes—that is the problem to be remedied. The position of the judiciary must be that no bias is acceptable in the criminal justice system, whether based on race, gender, type of crime or other condition or category. The only way to accomplish any significant mitigation of implicit (or explicit) bias in the justice system is to demand completely objective and strictly even-handed procedural fairness.

Integrity. Judicial integrity precludes partiality. If the judicial training only promotes the view that victims must be nurtured, believed and assisted to tell their story, the judges will be taught an implicit bias that is just as insidious as the one that asserts that a victim should “just cross her legs.” Judges that are persuaded to employ a victim-centric or sensitivity-based jurisprudence, will no longer be impartial arbiters in an adversarial system. Instead, they will have joined one of the competing teams—the State.

Balance.  It would be a grave disservice to the judiciary, and to the citizens of New Jersey, if mandatory judicial training amounted to no more than victims’ rights advocacy slogans. Cheerleading for one side of the litigation equation is insufficient and inappropriate. If neutral trainers cannot be found, then perhaps trainers with opposing biases should be used, in a fashion similar to the adversary system of the courts, so that judges can hear both sides.

Information.  Judges expose themselves to threats and criticism if the demands of judicial objectivity fail to adhere to the narrative of victim-centric orthodoxy. Therefore, it is critically important that judicial training is well-researched and informationally supportive of a judge’s responsibility to be fair and objective. Accurate factual knowledge is exceptionally important to judicial competence in sex offense law because misinformation abounds, and myths endure.  Judges need to know about low recidivism rates, the success of treatment, and the rehabilitation potential of juveniles.

In sum, judicial training should be about empowerment—judicial empowerment. It should support and affirm judges being honest with litigants about tough issues, such as the balance between victim sensitivity and judicial objectivity. And it should inspire the judiciary to do the same vis-à-vis the public and press. Concern about public perception of the courts, based on lack of sensitivity to victims of sexual crime, is best addressed by a clear and diplomatic, but unapologetic, articulation of the role and purpose of the courts. Managing expectations about the purpose and limitations of the courts will minimize the disappointment of sex crime victims (and the public). In contrast, muddling together the criminal justice system with victims’ rights advocacy will only lead to an inability to perform either function properly.

Judicial independence in the #MeToo era will require zealous defense of judges who are accused of heretical non-adherence to the victim-centered, trauma-informed orthodoxy of our time. But understanding the pain of some, must not mean forgetting the rights of others. Accusations of heresy will often arise from judges making a reasonable (and courageous) attempt to maintain the balance and objectivity required to preserve the presumption of innocence. It may not be well understood by the public or politicians, but it will be a modern test of judicial integrity—and it must be defended.

James H. Maynard is managing member of Maynard Law Office LLC, in Morristown, a concentrated practice, dedicated to sex offense law.