Former New Hampshire Attorney General Michael Delaney was confronted with a hard line of questioning during a Senate confirmation hearing this week regarding his 2014 defense of a private Concord boarding school in a civil suit related to a sexual assault case.
Delaney, who was nominated by President Joe Biden in January to be a First Circuit Court of Appeals judge, served as private counsel for the St. Paul’s School in a lawsuit filed by the family of Chessy Prout, who had been sexually assaulted when she was 15 by another student, Owen Labrie. The civil case ultimately ended in a confidential settlement, which Delaney was not permitted to discuss in public.
However, the case was first filed by the Prout family anonymously, but Delaney argued the girl’s identity be made public if the lawsuit reached trial in federal court. Instead, Chessy Prout, then 16 years old, came forward publicly with her name and her story.
Delaney addressed the issue directly to the committee.
“I am aware that questions have been raised about a legal pleading I filed in private practice following a horrific sexual assault of a high school student by another student,” he said and welcomed questions.
Senators asked him about allegations of witness tampering that were included in a letter Chessy Prout submitted in opposition to his nomination. They also questioned him about the motion he filed on the school’s behalf over her anonymity.
“Michael Delaney is not ethically qualified to sit on the bench,” Prout wrote the committee. “A lawyer who practices victim intimidation is doing nothing for the greater good of the community; he stands in the way of justice and furthermore keeps his community in a toxic cycle of harm and silence.”
Senators said that the argument Delaney was making against child sexual assault survivor’s anonymity sets a dangerous precedent for other sexual assault victims to come forward and seek justice.
“What kind of message do you think your conduct sends to survivors of sexual assault?” Sen. Marsha Blackburn of Tennessee asked.
She said Delaney’s decision to protect the school but not the identity of a child who had been sexually abused sends a “chilling message to the young ladies or young men” who have experienced sexual assault.
Throughout the hearing, Delaney emphasized that St. Paul’s wasn’t opposed to the survivor’s request for anonymity, it just wanted to maintain its right to a fair trial if it got to that point.
In attendance at the hearing were Chessy’s parents, Alex and Susan, who said they were taken aback when they initially learned that Delaney had been nominated for the position.
“So we’ve seen institutions that harbor rape culture, the tactics that they use to isolate and silence and shame survivors of sexual assault, and to have somebody like Delaney, in this important position, will send an absolutely chilling message to all survivors and advocates,” Alex Prout said in an interview Thursday.
The Prouts had spoken to the Department of Justice during the vetting process and expressed their concern about this nomination. They said Delaney seemed to struggle to answer the questions at the hearing.
When asked how he would keep the real persons affected in the case in his mind as a judge, Delaney responded that his experiences have helped him understand the importance of the interaction between a judge on the bench and the victim of a crime and that it requires careful listening.
“As a homicide prosecutor, I went into court all the time, with victims of horrific violence, oftentimes sexual and violence,” explained Delaney. “It requires an understanding and background in how trauma affects individuals that have been harmed by sexual violence.”
With the exception of Chairman of the Judiciary Committee Dick Durbin and Hawaii Sen. Mazie Hiron, the majority of the committee’s members in attendance were Republicans.
After their turn to question Delaney, Sen. Blackburn and Sen. Josh Hawley of Missouri publicly declared that they would not be voting for his nomination.
Delaney was introduced at Wednesday’s hearing by New Hampshire’s Democratic senators Maggie Hassan and Jeanne Shaheen.
In a joint statement, senators Hassan and Shaheen expressed their appreciation for Michael Delaney’s work throughout the course of his nearly 30-year legal career and said he was exceptionally qualified to serve as a judge on the U.S. Court of Appeals.
“His long tenure in public service, coupled with his extensive litigation experience, make him well suited to serve in this role with distinction,” said the senators. “We urge the Senate to confirm him swiftly.”
Delaney said he would be dedicated to fairness on the bench.
“If I had the opportunity to be confirmed, I would dedicate the entirety of my mind, my heart and my body to try and make it right, knowing that every decision I made was going to impact people,” he said.
The Prout family hopes that Biden withdraws this nomination and that the voices of the survivors of sexual assault are heard. The family also stated that the nomination is inconsistent with his stated position of being a proponent of the Violence Against Women Act.
“This will be a significant step backward,” said Alex Prout. “We need the president and we need Sen. Hassan to do the right thing.”
In her letter, Chessy urged the Senate to outright reject the nomination.
“If an attorney who brazenly intimidated a minor victim of sexual assault is given the distinct privilege to serve as a judge for the United States Court of Appeals — you are telling victims and survivors that you not only approve of victim intimidation tactics, you reward their enactors with one of the highest legal appointments,” she said.
These articles are being shared by partners in The Granite State News Collaborative. For more information visitcollaborativenh.org.