Right now, no one can say for sure that Brett Kavanaugh is guilty of sexually assaulting Christine Blasey Ford at a house party 35 years ago. But neither should anyone be certain it didn't happen.
A lot of people nevertheless seem completely convinced, one way or the other. Quite coincidentally, their conviction that Kavanaugh has been slandered, or that Kavanaugh is a sexual predator, seems to line up perfectly with whether they oppose or support Kavanaugh's nomination to the Supreme Court. If you like the guy, you know he's innocent, or that it doesn't matter. If you fear he will provide a decisive vote against abortion rights, you know he's guilty. Fence sitters are betraying women everywhere, according to the left, or are letting the Democrats pull off a con, according to the right.
Case in point: At 3:24 a.m. today, Rep. Eric Swalwell (D–Calif.), a self-anointed #resistance spokesperson, sent a thunderous tweet to Sen. Susan Collins (R–Maine). Collins, who has not yet decided whether she will vote to confirm Kavanaugh to the Supreme Court despite the sexual assault accusation against him, had complained that her office was receiving threatening messages from furious constituents.
"Boo hoo hoo," said Swalwell. "You're a senator who police will protect. A sexual assault victim can't sleep in her home tonight because of threats. Where are you sleeping? She's on her own while you and your @SenateGOP colleagues try to rush her through a hearing."
Swalwell was referring to Ford, the woman who has claimed that Kavanaugh dragged her into a room and attempted to rape her when they were both in high school. Swalwell's certainty about Ford's status as a sexual assault victim is shared by many on the progressive left. MoveOn.org, a progressive organization born in 1998 out of an effort to dissuade Congress from impeaching President Clinton over his sexual misconduct and instead "move on" to other matters, released one of its famous celebrity videos. Julianne Moore, Gabrielle Union, and America Ferrera make appearances, chanting, "We believe you." The video calls for a full, fair, and "trauma-informed" investigation.
Trauma-informed investigations, in which it is assumed that victims will have trouble recalling details of their assaults and even exaggerate or make up details, are popular on college campuses. The federal government has encouraged their use in adjudication relating to Title IX, the federal statute that obligates college administrators to respond to allegations of sexual misconduct. Emily Yoffe, a contributing editor at The Atlantic, has criticized this thinking as akin to the recovered memory movement of the 1980s, in which therapists goaded confused people into remembering sexual abuse that never happened.
"Believe the victims," the mantra of fourth-wave feminists on campuses, often sounds disturbingly like recovered memory. The injunction implies that virtually all women who make allegations of sexual assault are telling the truth, and that all the reasons we might disbelieve them—e.g., they waited a long time to come forward, they changed their stories, or they don't recall all the details—are actually proof of trauma, and thus evidence that they were actually abused. It's a mistaken view, at odds with established science, principles of basic fairness such as cross-examination and the presumption of innocence, and recent history, which has shown that some women do in fact lie about sexual assault—not because they are women, but because they are people, and people lie.
We tell big lies and small lies. We lie because it suits our purposes: Asia Argento is currently threatening to sue former friend Rose McGowan because the latter has contradicted Argento's claim that she was sexually assaulted by a 17-year-old boy, Jimmy Bennett, who credibly accused Argento of sexually assaulting him. We lie by accident, because our memories have deceived us: Steven Avery, the subject of Netflix's Making a Murderer, was arrested for sexual assault after the victim mistakenly identified him; he was exonerated of that crime after someone else confessed. (Avery was later convicted of murder in a separate case.) We lie for reasons known only to us: "Jackie" fabricated a horrific story of assault at the hands of a man who did not exist.
None of this means that Ford is lying, or mistaken about what happened. One does not have to subscribe to a believe-the-victims mentality to think that the alleged victim in the Kavanaugh case is indeed believable. Ford's accusation is unproven, but it's hardly unthinkable. She has alleged that Kavanaugh and his friend, the conservative writer Mark Judge, attacked her during a party after they consumed copious amounts of alcohol. Alcoholism is the theme of Judge's book about his teen years, Wasted: Tales of a Gen X Drunk, which makes a reference to Kavanaugh's drunken partying. References to such carousing can be found in Kavanaugh's yearbook and a joke he made during a 2015 speech.
That Judge and Kavanaugh were heavy drinkers does not confirm that they did what Ford alleges. Kavanaugh shouldn't be convicted based on this. Even by the lower burden of proof required in campus Title IX tribunals—a preponderance of the evidence—it would be difficult to conclude that anecdotal evidence of his adolescent lifestyle shows Kavanaugh attacked Ford at a party he says he did not even attend. But this isn't a criminal trial, and it isn't a Title IX issue either. This is a vote to determine whether Kavanaugh should join just eight other justices on the highest court in the land. There is no prescribed standard here. If it's just 30 percent likely that Kavanaugh did what he is accused of, should he be confirmed? On what basis would it be inherently unreasonable to reject Kavanaugh because he might have committed sexual assault, provided his accuser is actually willing to testify about it at a Senate hearing?
Many conservatives, of course, want a vote on Kavanaugh regardless; they seem to think the odds he did anything wrong are very low, if not zero. Conservative columnist Dennis Prager, who often accuses the left of subverting traditional Christian values and peddling moral relativism, wrote earlier this week that the charge against Kavanaugh should be ignored, "even if true." Taking the accusation seriously "undermines foundational moral principles of any decent society," says Prager, who blames the "moral chaos sown by secularism and the left" for causing people to think Kavanaugh's alleged actions could somehow disqualify him from the Court.
Prager's column drew a powerful rebuke from National Review's Alexandra DeSanctis, who correctly accused Prager of being "wholly uninterested in the truth—simply for the sake of political expediency, and worse yet, based on a twisted definition of morality." DeSanctis warned that Prager's excuse making for Kavanaugh is "destructive to the conservative movement." It certainly lends credence to the left's contention that conservatives don't take violence against women seriously.
Indeed, the Kavanaugh episode is bringing out the right's worst tendencies. On Fox News the other night, Ann Coulter railed against the unfair, false sexual assault allegations leveled at "white male Republicans." But while it's true that white men are sometimes falsely accused, black men are more likely to face false allegations. Wrongly portraying false accusations as mainly a problem for people who look like Kavanaugh is an exercise in white identity politics that betrays a lack of interest in social problems that plague minorities.
It's frustrating that so many people are beholden to their partisan convictions and blithely insistent that they know whether Kavanaugh is innocent. That may be something not even Kavanaugh knows, since he may have been blackout drunk at the time of the alleged incident. It's frustrating that so many progressives would believe the accusation automatically, no matter how distant or unverifiable it may be. And it's frustrating that so many conservatives think protecting Kavanaugh and elevating him to the Supreme Court is so important that it's worth forgiving serious wrongdoing in just this one case.
It would be a different matter to argue that we should be more forgiving in general of immoral or criminal behavior by teenagers. I have long argued that the authorities are far too willing to arrest kids for youthful indiscretions of a sexual nature. I once covered the case of a North Carolina teenager who was charged as an adult for sexually exploiting a minor—himself. That paradox was legally possible because he had texted nude pictures of himself to his high school girlfriend. At the time of his arrest, he was 17, the same age as Kavanaugh at the time of the alleged assault. If you think we need criminal justice reform so that teenagers—especially poor and minority teenagers, who are less likely to have the resources to defend themselves—do not suffer for their mistakes the rest of their lives, I'm with you. If you don't care about any of that but think Kavanaugh really needs to sit on the Supreme Court no matter what, you've lost me.
Similarly, I support due process rights for people accused of sexual misconduct. I have covered extensively the manifest unfairness of campus Title IX tribunals, which often operate as if the accused male is guilty regardless. Education Secretary Betsy DeVos has rightly decided to reform these practices to bring them in line with basic principles of justice. Students accused of sexual assault should be able to consult lawyers and have them question their accusers. If you think Kavanaugh is not entitled to the same presumption of innocence that we would typically extend to people facing sexual assault charges, I see your point. If you think no man deserves a presumption of innocence because women never lie about this sort of thing, then once again you've lost me.
Where do we go from here? Ford should agree to testify before the Senate Judiciary Committee. The committee should do its best to ascertain the truth of her allegation, even if that means taking a little extra time. The committee should ask Judge to testify as well and subpoena him if he refuses. The FBI should also conduct an expedited investigation. There is still time. The surest way out of this mess is for the FBI to determine conclusively that the party never happened or that Kavanaugh didn't attend it—or, alternatively, that he was in fact there.
We should gird ourselves for the possibility that we may not learn anything useful, at which point the way forward won't be obvious. Confirming Kavanaugh in spite of the accusation and voting against him because of it both seem like defensible moves. At present, the only indefensible position is certainty. We don't know anything for sure, and we shouldn't presume that we do merely because it's politically convenient.
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