From Clarence Thomas to Kavanaugh: Why we’re still asking the wrong questions

Some prominent politicians, journalists, lawyers, and other leaders in their professions are defending Supreme Court nominee Brett Kavanaugh in the wake of Christine Blasey Ford’s allegations that he assaulted her during high school. That, now in 2018, so many accomplished people–including some of the country’s most brilliant legal minds–could engage in such facile thinking is baffling to me.

Kavanaugh’s allies, including President Trump (himself accused of sexual assault by various women), several women who grew up with Kavanaugh, and the Wall Street Journal editorial page, put forth two main lines of defense. There are those that argue that his fervent denials, coupled with glowing testimonials about his kind demeanor, insulate him from charges of misconduct. Then there are those who simply shrug and suggest that there’s a statute of limitations on high-school behavior, no matter how troubling it may be.

Let’s unravel both fallacies. As countless cases of sexual harassment and violence have shown us, the outward appearance of a person’s character is often misleading or duplicitous–it is completely possible to be married and a parent and, yes, coach a high school girl’s basketball team and still commit serious misdeeds.

Far too often in cases of sexual harassment or sexual violence, the accused is given the benefit of the doubt while the accuser is saddled with the burden of proof, even though studies show that the rate of false accusations is incredibly low (around 2-6%). Take this year’s case against former  USA Gymnastics national team doctor Larry Nasser. It took not one, not two, but 250 young women to come forward and convince the legal system that these allegations needed to be taken seriously, and he was found guilty.

Meanwhile, it is also possible to be a victim without having led a completely unblemished life. The problem of the “perfect victim” is a tale as old as crime itself. What someone was wearing or drinking or who they are in their personal life is completely irrelevant to the crime. But since Dr. Ford’s character seems unimpeachable, hopefully these common tactics of victim blaming won’t be deployed in this case. But as we saw with Anita Hill 27 years ago, that’s not always the case.

Let’s move on to the argument that seems to be a sticking point for many: Even if Kavanaugh did engage in the alleged behavior, it shouldn’t matter because it was so long ago. As New York Times opinion writer Bari Weiss said, “Should the fact that a 17-year-old, presumably very drunk kid, did this, should this be disqualifying? That’s the question at the end of the day, isn’t it?”

As Slate writer Mark Joseph Stern points out, the question that the Senate will be trying to answer will actually have nothing to do with Kavanaugh’s alleged actions 36 years ago, because the hearings aren’t taking place in a criminal court. The question, as Stern asserts, is whether or not Kavanaugh is lying about his actions. After all, it’s possible to believe in redemption for sins committed in youth and to insist that “any adult who lies about that crime should not be elevated to the Supreme Court.”

But many, like Weiss, don’t seem particularly concerned about the repercussions of dishonesty for someone seeking a lifetime appointment to the highest court. They keep wondering why something that took place 35 years ago matters at all. So let’s break it down.

The fairness of lifelong consequences for minors (aka hypocrisy in action)

This is the particular part of the argument that obsesses Kavanaugh’s defenders: Is it right that misdeeds committed by minors should have lifelong repercussions? Many say no. The irony is that many conservatives often think they should, including Kavanaugh himself. In a now infamous decision he denied a 17-year-old immigrant’s right to an abortion under the logic that she wasn’t responsible enough to make the decision on her own, meaning of course that he felt that she should have to become a parent instead–certainly a lifelong consequence if there ever was one.

But it’s not just that case. The conservative wing of the judiciary, of which Kavanaugh is most certainly a member, has a long record of pushing for harsher sentences (including life sentences and the death penalty) for teenage offenders. For this part of the argument, Kavanaugh’s defenders want to have it both ways: They want to say that what some people do at 17 doesn’t matter because “boys will be boys,” but then dole out life long consequences for other people’s kids.

Honesty and remorse (aka paying your debt to society)

One of my biggest issues in Kavanaugh’s case, however, isn’t simply if he should “pay” for the alleged actions he took when he was 17. (It’s not clear whether he could be charged in this case; Maryland is one of the only states that has no statute of limitations for attempted rape.) It’s how now, at 53, he addresses those alleged actions. Right now, he is categorically denying that anything at all took place, insisting that the allegation is “completely false.” Whether he’s telling the truth will be determined by the members of the Senate Judiciary Committee, who will be keeping a close eye on public sentiment.

But in the grander scheme of things, even if he admits to assaulting Blasey Ford, what’s more important is to show remorse and to take steps to prove that he’s fundamentally transformed his character. Especially since in this past year we’ve seen several men forced to admit to committing acts of sexual violence against women attempt “comebacks” without showing an ounce of real remorse or doing any work to try to prove they have reformed.

If Kavanaugh is guilty of what Ford says he is, this is where his case really starts to fall apart. Our justice system is built on the belief that if you do wrong, you must pay your debt to society and show remorse. Kavanaugh hasn’t done either. 

An extremely unique job

Questions around paying one’s debt to society would be relevant if this came up while Kavanaugh was applying for any job. But when hiring someone for a job in the judiciary system (let alone the highest court, which comes with a lifetime appointment), the questions are much more acute.

It seems obvious to me that a person who allegedly assaults someone and especially one who lies about it for decades, shouldn’t be in a position to make judgments on what the laws of the nation should be.

What it means now (aka why 2018 should be different from 1991)

That all of this is happening at this point in time can’t be ignored. That women often suffer horrible (and frequently repeated) acts of intimidation, discrimination, bias, and violence–and remain silent for fear of retribution–is now a well-established fact. That 98% of the time a woman comes forward with an accusation of sexual harassment or sexual violence she is telling the truth is a fact that we should all be capable of accepting.

Sadly, we’ve been here before thousands of times. By now we should be able to move beyond arguments like Weiss’s–that Kavanaugh has “a reputation as being a prince of a man.” No longer should we be so skeptical of such allegations and automatically question the accuser’s credibility. We should have learned from our history, both recent and ancient, that women like Blasey Ford don’t come forward to try to “bring down” powerful men. They don’t do it for fame or money or attention. Most often they don’t do it at all for fear of shame and retaliation and due to the very real risk of great personal and professional harm.

When journalists like the New Yorker’s Ronan Farrow or the New York Times’s Jodi Kantor get a tip about a woman who allegedly suffered sexual harassment or assault at the hands of a prominent man, they don’t just take that account and publish it. They find corroborating evidence, they talk to other women and often establish that the incident wasn’t isolated, they establish a pattern of abuse. That’s often what it takes to have these cases taken seriously because, as Anita Hill pointed out just last year, it’s so hard for most people, despite everything, to believe women.

In this case however, choosing to believe Kavanaugh’s denial over Blasey Ford’s accusations has even more dire consequences, as Sady Doyle points out in Elle:

“Violence against women doesn’t just take place one-on-one, through individual rapes and assaults. It’s structural–it’s built into our assumptions and our institutions, inflicted from the top down. Sexual assaults or incidents of misogynist violence are not just tragic accidents, or outliers. They are the intended outcome within a culture that is built to empower men at women’s expense. The same rape culture that teaches boys to terrorize girls at parties now stands to enshrine Brett Kavanaugh into a lifetime position of authority, in which women’s civil rights and bodily autonomy will be in his hands and at his mercy. These are not two different stories.”

It’s so common in this country that we’ve been in this exact same situation before–as a man prepares to take one of the most privileged and powerful jobs while accused of serious misbehavior by a woman. When Anita Hill testified against Clarence Thomas’s appointment to the Supreme Court in 1991, the committee asked all the wrong questions. And we as a country have internalized those questions for far too long. Hopefully this time around we can learn to ask the right ones.

This story has been updated.