The defense is straightforward: “I have never attacked Dr. Ford or anyone else, and I have no recollection of the party she describes. If she suffered a sexual assault then or at any time, the perpetrator was someone else.”
In my imagination, Judge Brett Kavanaugh – husband, father of daughters, and by all accounts a brilliant lawyer – privately face-palms as his purported advocates focus their oral argument on the alternative theory that, whatever truly happened, sexual assault is excusable under the circumstances.
Early this week, in response to Dr. Christine Blasey Ford’s allegation that Kavanaugh tried to rape her when he was 17 and drunk, it was chilling to watch people’s eagerness to skip right past “he didn’t do it” to “even if he did, it doesn’t matter.” For the love of god, people. Stay on script.
Here’s a summary of the week’s reactions that digress from “Sexual assault is a serious offense that we are confident Judge Kavanaugh did not commit”:
It’s very inconvenient that this story is coming out only now. In other words, our self-imposed schedule is more important than finding out whether the nominee committed sexual assault.
He was only 17. Put differently, sexual assault is no worse than your typical teenage hijinks.
It was 35 years ago. Read: sexual assault is something one forgets.
You have to weigh it against all the other evidence of his great character. That is to say, if you’re good to some people, consequences for sexually assaulting others aren’t necessary. You and your moral ledger are all that count; your victims’ experiences don’t matter.
We’ll hear the lady out, but we don’t need any other witnesses to testify. Meaning, the truth of her account won’t affect our decision as to who should sit on the highest court in the land.
These responses perfectly illustrate the daunting challenge identified most recently by the #MeToo movement: Sexual harassment and assault pervade our society because of a systemic, stubborn refusal to hold perpetrators accountable for the harms they cause. And perhaps as a backlash to #MeToo, a frightening number of people have suddenly stopped pretending to care. By midweek, this view had been reined in a bit, but the bell’s been rung. The masks are off.
As we gain clarity as to how many influential people believe that consequences for sexual assault are optional for those on their own team, it’s hard to escape the conclusion that sexual assault isn’t necessarily a violation of the rules we live by in practice. As a result, as Dahlia Lithwick concluded in Slate, our institutions just aren’t designed to resolve such accusations – meaning that a history of assault apparently isn’t considered incompatible with public service.
The misogyny is coming from inside the house
“Rip her up, Sam!”
I don’t know who shouted it. We were a collection of various high-school athletes milling around the sports complex, waiting for our respective coaches to arrive and supervise workouts. A few feet away from where I stood with other runners, a group of older football players hung together, laughing sporadically.
For some reason, one of them was skipping out early with his long-time girlfriend, and his teammates started teasing. Sam and Jessica (pseudonyms) seemed like a sweet senior couple, maybe even the stereotypical small-town high-school sweethearts who move back after college and get married. Sam’s younger sister was a freshman on the track team, like me; she was there that day, too.
I doubt Sam’s teammate gave any thought to me, Sam’s sister, or even Jessica, when he loudly encouraged Sam to “rip her up” as they exited. The care-free reference to sexual violence was so unfamiliar and bizarre that I couldn’t process it immediately. (I was 14 – just a year younger than Christine Blasey at the time of her alleged assault.) I still wonder how Jessica reacted outside and if Sam felt the need to apologize. Or maybe they did what I did: Tried to act like it didn’t happen.
But more than 20 years later, I haven’t forgotten the sentiment. It introduced me to misogyny’s most pernicious feature, which is that it co-exists peacefully with people you trust, in places that feel like home. One second, you’re inhabiting a world in which people care about your humanity, and you can go about your life without actively fearing attack. The next second, you realize that you’re simply enjoying the forbearance of predators in your midst. Even when the predators reveal themselves, though, you keep participating in your community, partly on its promise that if anyone tries to rip you up, people will be on your side.
The #MeToo movement arose from a belated, collective, intergenerational realization that this promise has always been a lie. As a recent example, this week the Washington Post published a masterfully reported story of a high-school rape that carried no consequences for the perpetrators, despite the immediate involvement of law enforcement and clear evidence of physical trauma and semen recovered from the victim’s body that matched the profile of the soccer player she accused as one of the two assailants. Police never interviewed either boy.
Following the incident, ordinary people started displaying the acronym FAITH all over town. It stood for “Fuck Amber [the victim] in the head,” or alternatively, “in three holes.”
Rip her up.
Attempting to explain why a community responded to the brutal attack on a teen by turning against her (to put it mildly), reporter Elizabeth Bruening suggests that our epic, multifaceted failure to deter sexual misconduct comes from a fundamental discomfort with human vulnerability. We can’t abide the notion that we ourselves might be powerless, so we despise that quality in others, or at least emotionally quarantine it in other people’s existence.
If accurate, that reaction is a huge, perhaps insurmountable, impediment to empathy. But while it explains why women can be just as quick to blame victims as men are, the theory seems inconsistent with the inevitable rush to portray the accused as the real victims. I don’t think it’s possible to understand the phenomenon of backlash against sexual-assault reports without acknowledging systemic tolerance for misogyny, especially in the form of pairing sex with female suffering.
As it relates to the Kavanaugh nomination, questions about assault allegations can and should be asked: Are they true? Is redemption possible? How long should that take, and under what conditions? But those questions are secondary to whether the damage caused by sexual assault even requires a remedy, just on principle. If the most powerful people in the country find remedies appropriate only when convenient, if they’re unable to empathize at the most basic level with America’s millions of survivors of sexual assault, then they’re definitely unqualified for the positions they hold.
No justice, no peace
While I suspect that the majority of senators on the Judiciary Committee believes that Judge Kavanaugh should sit on the Supreme Court even if Dr. Blasey Ford’s account is true, I’ll extend them the benefit of the doubt for the sake of argument. Maybe they do take sexual assault seriously, but this 11th-hour character assassination seems immensely unfair to Kavanaugh and his family. In this, even assuming Kavanaugh is guilty, they’re absolutely right.
We don’t yet know what Dr. Blasey Ford personally feels would have been a fair consequence for a deliberate, terrifying assault during which she feared she might die. Recounting her own similar teenage experience in The Atlantic, Caitlin Flanagan describes the psychological harm that followed for her: “In my mind, it was an example of how undesirable I was. It was proof that I was not the kind of girl you took to parties, or the kind of girl you wanted to get to know. I was the kind of girl you took to a deserted parking lot and tried to make give you sex. Telling someone would not be revealing what he had done; it would be revealing how deserving I was of that kind of treatment.” Following the incident, she was anguished enough that she made plans to end her life.
Still, Flanagan writes that she was able to forgive the boy after he eventually owned up to the monstrosity of what he’d done, acknowledged the harm he’d caused her, and abjectly apologized.
Criminal convictions, lost jobs, and school expulsions are sometimes absolutely necessary. But many people who experience sexual assaults and harassment – especially by acquaintances – actually don’t want to destroy anyone’s life. They’d rather have acknowledgments – by both the perpetrator and the community – that the act committed against them was violative and harmful. They want to be reassured that, going forward, their personal autonomy and dignity will receive due respect. In some jurisdictions, the restorative justice movement focuses on victim-driven healing in lieu of traditional criminal sentencing.
But that type of approach isn’t readily available in most communities, leaving a choice only between “ruining his life” or staying silent. This binary menu does a profound disservice to both victims and perpetrators. Real justice contemplates both restitution and redemption. But as we’ve seen, when the rule of law so utterly fails to provide an effective process for restitution, all that’s left are ad hoc, mob-driven remedies that may include the decimation of hard-earned reputations by decades-old traumas that were never offered closure. And there are many of those: Stories of sexual abuse from women similar in age to Dr. Blasey Ford are now pouring out on social media, some for the very first time. As the old saying goes, justice delayed is justice denied.
As ever, there’s little hope of fair outcomes in this area. While misogyny is real, what appears as a malicious disregard for women might be, for some people, simply a natural objection to seeing the rules change suddenly and retroactively, without their input. For most or all of our lives, sexual or domestic misconduct has been an ugly fact of life and certainly not disqualifying for public office or other positions of power. As that status quo starts to crumble, it may be that injustice is, at first, not really lessened but just more evenly distributed. This process isn’t at all satisfying, especially when you can see the human cost to Judge Kavanaugh and his wife and children.
The worst is yet to come
Unfortunately, all roads in Judge Kavanaugh’s nomination process now lead to dark places.
Perhaps more developments will cast factual doubt on Dr. Blasey Ford’s allegations, and the sky will clear over Kavanaugh’s confirmation. That won’t erase the widespread readiness to say her story would have changed nothing even if true. It will be another stark warning to those who experience sexual assault that they have nothing to gain, and much to lose, by reporting.
Or maybe Dr. Blasey Ford’s allegations will stand up to scrutiny, at least enough to sustain a “he-said/she-said” conundrum. Confirming Kavanaugh under those circumstances would be a further signal that American institutions effectively ignore the harms of sexual assault. For those disturbed by that, any 5-4 decision with implications for women’s rights will be automatically suspect, damaging the legitimacy of the Court.
Even if Kavanaugh tries to avoid these outcomes by withdrawing (either sooner or later), the question of sexual assault will certainly follow him back to the D.C. Circuit, tainting the cases he hears there and possibly giving rise to further investigation that could lead to his resignation or removal. Meanwhile, many Americans will view the permanent damage to his reputation as unforgivable, and some will be all the more ready to meet future public accusations with contemptuous skepticism.
Who matters most
I wish Christine Blasey had had a constructive avenue available at the time to address what happened to her. I wish Brett Kavanaugh could have navigated her accusations in that context, rather than now. (Even in that scenario, Kavanaugh’s higher-education trajectory may well have been different in the event of a credible accusation of attempted rape.)
But no matter what we wish now, prioritizing above all else the concern for Kavanaugh’s “good name” is misguided. Americans – all of us – deserve a commitment from our representatives not to appoint anyone to the Supreme Court who has ever sexually assaulted someone, unless the nominee has sufficiently taken responsibility for the harm it caused. This commitment has to mean that Kavanaugh can’t be confirmed unless it seems most likely that Dr. Blasey Ford is either lying or mistaken.
Imagine you’re an executive at a large company hiring a new Human Resources Director. After interviewing many excellent candidates, you offer the job to an experienced man you’ve known personally for many years. Shortly before his start date, a long-time employee posts on your company’s internal forum that the candidate attempted to rape her decades ago at a social event. The accusation seems completely out of character for him, and he denies it. But many other employees believe her, vouching for her integrity. Media outlets have started to contact your company about the allegations. Would you explain to your workforce and shareholders that the new HR Director is innocent until proven guilty, or would you withdraw the offer and contact one of your other finalists?
No one is entitled to a seat on the Supreme Court. One could argue that one single American is entitled to a high court on which her attacker doesn’t sit. But there’s no question that all Americans are entitled to have vacancies filled by the best possible candidate – the one who inspires the most public trust.