Editor’s Note: Deborah Tuerkheimer, a former assistant district attorney in Manhattan, is the Class of 1940 Research Professor of Law at Northwestern University. The opinions expressed in this commentary are hers. View more opinion articles on CNN.
As the Senate inches closer to determining whether Judge Brett Kavanaugh will be confirmed to the US Supreme Court, the dreaded prospect of a “he said, she said” contest looms large.
According to Christine Blasey Ford, when the two were high school students, Kavanaugh attempted to sexually assault her at a party. Ford has reportedly described Kavanaugh’s alleged actions in detail – pushing her into a bedroom, pinning her down, and attempting to remove her clothing. To prevent Ford from calling for help, she says, Kavanaugh and another student covered her mouth, causing her to fear for her life.
Politicians on both sides of the aisle should be able to agree that sexual misconduct of this kind would be disqualifying behavior for a Supreme Court nominee. (The passage of time since the incident allegedly took place would arguably matter only if Kavanaugh had accepted responsibility and expressed remorse, neither of which has occurred.) Yet I worry about whether Ford’s account – even if believed – will ultimately matter to many of the Senators who will decide on Kavanaugh’s confirmation.
Throughout our history, the harm of sexual violence, particularly when inflicted by an acquaintance, has been trivialized or ignored. To this day, sexual assault survivors are unlikely to see justice prevail. Their accusations are often reflexively disregarded by law enforcement officers who short-circuit the investigation before exhausting opportunities to gather available corroborative evidence.
Faced with these grim realities, sexual assault survivors tend to give up altogether on the promise of criminal justice. According to recent Justice Department estimates, the population most vulnerable to sexual assault, females ages 18-24, reported incidents of rape or sexual assault to police at rates of only 20% among college students and 32% among non-college students. Among the most common reasons for not reporting these incidents were fear of reprisal and a belief that authorities could or would do nothing to help.
Kavanaugh’s accuser seems to have reasonably anticipated that she would encounter considerable skepticism if she came forward with her story. And indeed, one prominent Kavanaugh supporter has already hinted that she was too intoxicated at the time of the alleged assault to be a reliable reporter while still more Kavanaugh defenders have insisted that he is a “good person” – that is, not the type of man who would attempt sexual assault. In the days and perhaps weeks ahead, we should anticipate that Ford’s character and her credibility will be relentlessly attacked.
Ford is far from alone. “Credibility discounting,” as I have explained in a recent paper, is a huge problem inside our legal system and throughout society. But providing hope for survivors in the past year, this has begun to change.
Since allegations against Harvey Weinstein surfaced last October, countless women and men have come forward with previously unreported allegations of sexual misconduct. It has become evident that sexual abuse is rampant, not only in the workplace and on college campuses, but throughout adolescence. The jury is out on whether the #MeToo movement can transform this reality.
Moving forward, our societal response to accusations must take as a given that sexual misconduct is wrong – wrong decades ago and wrong now. It remains to be seen whether the Senate accepts this as a starting point as it prepares to hear testimony from Ford, who deserves to be judged without resort to tired notions of how survivors of sexual violence should behave.
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To give a pass to a man accused of sexual violence without a hearing that is fair and unbiased would significantly set back progress that the #MeToo movement has sparked. And worst of all, survivors of sexual assault and other sexual misconduct would be reminded once again that the system is fine-tuned to protect the powerful.