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The Rigged System

 

The Rigged System

[Note: First, a trigger warning. This piece talks about sexual violence against women. And while there are no graphic descriptions of assaults, there are some descriptions of human cruelty inflicted on its survivors that will likely be difficult for readers.

Also, because I know the way the internet works, I know there will be more than one (likely male) reader who questions my not giving specific details about one particular assault. If I am sure that the crime happened, why don’t I give specific details for others to hold up to scrutiny? I do this because the specific details of what happened on that night are not my story to tell; they’re someone else’s. For the record, I hope that person does publicly tell her story someday, if she hasn’t already. And if she does, I very much hope we have evolved to the point where she receives nothing but an enormous outpouring of love and support for having done so. — tk]

 

Roughly thirty-five years ago, at an unchaperoned party held by male students of a white, upper- and upper-middle class prep school, a girl was sexually assaulted. 

There are no official records of this assault, either with the local police or the school administration. Nonetheless, the assault was not a secret. The students knew, the school administrators knew, and the police knew. Everybody knew. Or at least, everybody knew then. Not everybody knows now. Many of the school’s students today say it never happened, or that if it did, they have no memory of it. Most of those who do recall remember but a few scant details, and chalk the incident up to the boyish misdeeds of youthful scalawags. 

Part of the reason for these reactions, I suspect, is what those boys have made of themselves in the intervening years. They are, from my outsider’s perspective at least, men who have gone on to lead wholesome, productive lives. They have wives, daughters, and female friends and coworkers who would tell you that whoever it was that committed that assault (if one did in fact occur), they bear no resemblance to the men they know today. If you were an employer calling old classmates of these now-grown men for a character reference, I daresay you would not find one give anything but glowing comments. 

Yet despite all of that, and though it was three-and-a-half decades ago, I can tell you with 100% certainty that this assault did take place. I can also tell you with 100% certainty that it was reported to the proper authorities at the time, no matter what said authorities might tell you today. 

I know because the school I’m talking about was my school, and my mother and I were the ones who reported it. 

     *     *     *     *

Over the past two weeks, Judge Brett Kavanaugh’s Supreme Court nomination proceedings have been marred by at least two accusations of sexual assault.(i)  Both allegations occurred roughly thirty-five years ago, one at a prestigious east-coast prep school, the other at Yale. These allegations were made in the middle of a contentious and politically partisan event. As such, the degree to which you find them credible likely hinges on two personal and unrelated criteria: your political affiliation, and your sex and gender. Neither you nor I truly know what did or did not happen between Kavanaugh and Christine Blasey Ford or any other accuser, nor will we ever. Nevertheless, there are some extremely important truths that we can glean from the aftermath of Ford and Kavanaugh’s night in question, irregardless of what happened between them. 

And to be clear, I’m not referring to important truths about Ford or Kavanaugh. I’m referring to important truths about us. 

Both our justice system and our society-at-large have time-honored ways of determining who was and was not a legitimate victim of sexual assault. A quick review of the aftermath of the alleged incident shows that, had there not been a political circus in tow, Ford’s story would never have been taken seriously by either. Here is a partial list of the things that happened after the alleged party Ford described that are not in dispute, and that — because of our system’s rules — all but demand we dismiss Ford’s allegations:

  • Ford did not file charges at the time in question. 
  • She cannot remember the exact date when the alleged assault took place. 
  • She claims to remember certain details with great clarity, but on other details she’s quite hazy. 
  • Some of her memories appear to be slightly inconsistent at different times she has been asked to recall exact details. 
  • Kavanaugh has been, by all accounts, a good an upstanding citizen as an adult, and those that know him well cannot conceive of him assaulting a young woman. 
  • His friend (and alleged co-assailant) Mark Judge has written extensively about how their high school experience involved heavy, black-out drinking — Kavanaugh, however, says he himself did not drink that much. People who know him well agree. 
  • All parties involved (save Ford) say that they do not remember sexually assaulting anyone at a party, or having heard of anyone being sexually assaulted at a party. 

Save a Supreme Court nomination in a particularly ugly partisan atmosphere, Ford’s story is not one to which our justice system would give any weight. In our society, we presume innocence of the accused until such time as evidence beyond a reasonable doubt is put forth to prove otherwise. Reviewing the above list, therefore, if we go by the time-honored rules by which we determine if sexual assault occurred, we must conclude that Kavanugh and Judge likely never sexually assaulted Ford, and that Ford is either mistaken, crazy, or lying. It’s really just that simple.

Except, of course, that it isn’t. 

     *     *     *     *

The high school I graduated from was public, but in terms of cliched stereotypes it was closer to a well-off private east-coast prep. Most everyone I knew there went to college on some kind of earned scholarship. (If I recall correctly, something like 15-20% of my graduating class were National Merit Finalists.) Most of the students came from wealthy families. A surprising number of my classmates owned new cars. I was one of a very small handful of students who ever had any kind of job in high school, even in the summer months. Most of my classmates went on to be successful as attorneys, doctors, heads of investment funds, college and professional sports stars, or some other similar-status careerist. 

One Monday, in the fall of 1982 during my senior year, I arrived at school to find everyone talking about a sexual assault that had occurred over the weekend. The short version of what had happened was this: Some students held a kegger at one of their homes. An underclassman had too much to drink and passed out. She was then sexually assaulted by multiple boys from my senior class. 

There are two important details that I feel I need to mention about the story that students were telling one another. The first detail is that I never heard one person at my school refer to what had happened as an assault, let alone a rape. Instead, everyone kept calling it a “train.” The story being told wasn’t one of a serious crime having been committed; it was one about something hilarious that had happened to some particularly zany guys at a kick-ass party.

The second detail is that the reason everyone knew what had happened wasn’t that the victim had come forward. It was because the boys who had assaulted her had been bragging about it. Before the week was out, in fact, there would be arguments about who had and hadn’t been part of the “train;” having been part of the “train” had become such a status symbol that even guys who hadn’t done anything wanted everyone to think that they had.

It will shock absolutely no one to learn that while the boys were being put on pedestals for their behavior, the girl was quickly made a pariah. By some accounts (perhaps apocryphal), in addition to the “train,” the girl was assaulted with a particular piece of fruit. For a period of time, boys who were not at the party could still earn status points from other students by drawing that fruit on her locker, or tossing a peel at her in the hallway, or at the very least simply making crude jokes about it. For the rest of my senior year, if you were the type of obnoxious jerk that wanted to boast about engaging in a particularly deviant sexual act that you had never gotten close to attempting, she would be the girl you would claim did it to you. Everyone knew you were full of s**t, of course, but there was an unspoken agreement by the boys in my class not to call you out on it. It was more fun to pretend that you had done it and degrade the victim that much more. 

At my lunch table that first Monday, I told my friends they were out of line for mocking the girl. And because I was young and immature and full of myself, it’s good odds I did so in an unhelpful, soap-box-y, holier-than-though scolding manner, which might well explain why they got angry and make me take my lunch and leave. The whole thing (both the assault and my friends’ reaction) shook me. I was probably the only boy in my class that went home that night and told their parents about the rape. 

My dad said the assault was “ungentlemanly,” but this being 1982 he stopped there. My mom who first person I heard use the word rape. If anything she was even more upset than I was. She proposed going with me to see a school counselor later in the week, so that someone in the school administration would know what had happened. There were two counselors at my school; one was a man and the other a woman. I scheduled the meeting with the man because the thought of talking about a rape with an adult woman I didn’t know terrified me. 

The counselor took no notes. I remember having the sense that he already knew about the assault. It seems unlikely I would have been that perceptive at that age, though, so that bit could well be my memory playing tricks. What I am very sure of, however, was the degree to which he was annoyed that we were wasting his time. When it was clear the school administration didn’t care, my mom drove me to tell the story to the town’s police. The reaction of the officer who talked to us was exactly the same as the counselor’s. Either the school counselor or the police officer explained to us that, questions of good manners aside, no law had been broken because “a girl who is passed out can’t tell you ‘no,’” though for the life of me I can’t remember which one of them it was.

And if you think this story makes me look like a good or decent person, you are wrong.

What I most remember about walking out of the police station that morning was the enormous sense of relief I felt. I was saying all of the right things to my mom. Inside my head, though, I was stressing out. When we were in the police station, it finally caught up with me that if anyone at school got in trouble for the assault, and it ever got out that I was the one that reported it, I would be The Guy Everyone Hated. But since I’d reported to the authorities and they didn’t think it was that big a deal, I figured, I could just wash my hands of it and go back to my normal school life. My mother, not knowing how spineless I was feeling inside, suggested I reach out to the girl and let her know someone supported her. I promised her I would, but I never did. I didn’t talk about the assault or that girl to anyone again my entire senior year.

Recently, my sister said that although mom’s heart was in the right place, her idea about me approaching the girl was a bad one. “You didn’t know how that girl was experiencing the trauma,” she said “and you have no reason to think you wouldn’t have made everything worse. You should stop feeling guilty about it.”

My sister is right about my mother, or course, both about her heart and it being a bad idea. She’s wrong about me, though. I know full well that what held me back wasn’t good judgement, but fear. In a life chock full of various human failings, how I reacted coming out of that police station remains the biggest moment of moral cowardice in my entire life, and I remain ashamed of it to this day.

I’ve thought a lot about the assault in the years since. It’s the first thing that comes to my mind every time I read about an assault or a case of sexual harassment in the news. Even when there’s nothing to specifically trigger a memory, one will just show up in my head. About ten years ago, I began casually asking various male classmates that I still know what they remembered about the assault, because I wanted to know if everyone else felt as guilty as I did. I was surprised to discover most have forgotten about it completely. A few would vaguely remember that something had happened, once I recounted details, but more often than not they concluded they must have been out of town that week or something. Even the ones I remember having told me they were at the party, or the ones I remember joking about bringing a particular kind of fruit to school to use as an instrument of shame. And here’s the thing: when those classmates say they don’t remember, I’m sure they’re telling the truth. I think they honestly have no memory of what our entire class collectively did — all of us, really, in different ways — to a young girl whose only crime was going to a party, and trusting the boys around her would be decent human beings. 

But here’s what I’ve come to believe in the years since I graduated. As terribly as that girl was treated by everyone at my school, it would have been a thousand times worse for her if she’d come forward, put her faith in the justice system, and asked to be heard.

     *     *     *     *

When someone steps forward and claims to be a victim of sexual violence, we like to tell ourselves — especially if we are men — that we need to start with a presumption of innocence. If there is credible evidence after an investigation, we say, we will dutifully treat the victim and the perpetrator the way we would treat the victim or perpetrator of any other crime. This is, of course, complete and total horse s**t. Our justice system was set up by men and is run by men still. It is therefore no surprise that it has been gamed to allow men an expectation of likely escaping justice should they sexually assault a woman.(ii) (Assuming, of course, that said man is not poor, homeless, or a person of color, in which case all bets are off.)

As I write this paragraph, I’m watching Ford’s testimony in the Senate. Though she is the alleged victim, there is no question that it is Ford who is on trial here, in a way the alleged victim of no other type of crime would be. And it’s not just the political theater of the moment. Were this a mundane pedestrian sexual assault case, the exact same thing would be happening, albeit on a smaller stage. 

Right now Ford is being treated the way the justice system treats almost all victims of sexual assault who come forward, be it immediately after their assault or after some period of time. She’s being asked over and over to recount very specific details of her memory.  Should her memory have any discrepancies at all, either with itself of other known facts, the possibility that she endured a crime against her won’t simply be discounted. She herself will become suspect, both by people in the justice system and by her community at large.

Stop for a moment, and consider how weird that is. The justice system simply does not put victims of other crimes through this finely detailed memory test to determine if a crime has been committed. There is a good reason for this: memory is not a video recorder, even if we like to pretend that it is. 

COMPLETE TESTIMONY Christine Blasey Ford questioned by Rachel Mitchell part 3 Kavanaugh Hearings

Everyone has memory inconsistencies about everything; that’s just the way brains work. And we know this! If someone burgles your house, the police who file your report will ask you what is missing, moved, or in any way different due the burglary. If you don’t remember all the exact same things each time you recount it, the justice system doesn’t conclude you weren’t a crime victim, because that would be insane. People in the justice system know better than anyone that if ten different people witness the exact same crime, there will be ten different detailed versions of what happened, and each one of those versions will change over time and with each recounting. So why do we demand of sexual assault victims that they have have a quality of memory we know in advance they cannot have?(iii) 

The reason, I have come to believe, is that with other crimes, our society wants to believe the victim. In cases of sexual assault, however, our society very much wants to believe that the victim is mistaken, overreacting, or lying. The words we all mutter if we are forced to talk about rape is that we believe it to be one of the most evil acts a man can commit. But judging by our collective actions, that’s not actually true. What we really seem to believe is that someone from another tribe raping someone is one of the most evil acts a man can commit. If an accused man is from our own tribe, we consistently go out of our way to make sure he is unlikely to face justice. And sadly, that “tribe” can be almost anything: our family, our circle of friends, our church, our religion, our political party, our coworkers. Our classmates. People who look like us.

Part of why we do this, I would argue, comes from our inability to hold in the same hand a monstrous act and a person we do not otherwise view as a monster. Take the case of the men who went to my school, or for that matter Brett Kavanaugh and his classmates. Sure, on a purely conceptual level we can agree that young men with undeveloped brains and surging testosterone can often commit heinous acts. And yes, we’re very aware of just how many of the women we know would tell us that they were once sexually assaulted in high school or college if we were to ask. (Which is probably why we almost never ask.) But when we move from conceptual theory to specific reality, where an actual man that we actually know might have to face justice for such an act of sexual violence, we buckle. As beastly as it sounds, this seems part of human nature. We humans will almost always bend toward circling the wagons around our tribe and believing them to be good people. We do this even if it requires our brains to forget the monstrous acts we’ve actually heard about, witnessed first hand, or committed. And we seem to be especially inclined to do this when that monstrous act is sexual violence against women.

Here is another, more pernicious reason we so often refuse to believe a women who accuses a man in our tribe of sexual assault: for a vast galaxy of reasons, we have extraordinarily f**ked up ideas about female sexuality. It’s an unfathomably huge topic to delve into, so for the purposes of brevity I will simply say this. We have a long history of both wanting women to be sexual creatures and also wanting them to be creatures with no sexuality, and then punishing them when we perceive them to be especially either.

That woman who says she was assaulted — does she enjoy sex? Is she a “cold fish?” Has she ever had a one-night stand? Had she been coyly flirting with the person who raped her? Has she ever had a sexual affair while she was involved in a committed relationship? What type of clothes was she wearing, either at the specific time in question or in general? Did she know her attacker? Had she ever been seen laughing with or smiling at him? The answers to any of these questions is immaterial to whether or not someone has been sexually assaulted. The letter of the law is very clear about this. The way our justice system handles it, however, is another matter entirely. Should a woman come forward, the answers to any of those questions are likely to make her disbelieved and abandoned by police, the DA, a jury, a judge, or the community — any single one of which derails the chances of her being taken seriously. Even in cases where there is actual physical evidence that a woman has been the victim of sexual violence, our justice system (and our society at large) will scour the answers to those questions to try find an excuse for thinking that she deserves no remedy.

Our justice system is simply not set up to deal with several irrefutable facts: that not all men who commit sexual violence against women are homeless maniacs lurking in the bushes. That men of any social class and status can and do commit such acts. That sometimes men who seem good and decent in their everyday lives can also commit such acts. That we all know this, but prefer to pretend that we didn’t whenever a victim is brave enough to come forward. After reviewing statistics from both the FBI and the US Justice Department, the RAINN organization estimates that for every 1000 women who have been sexually assaulted, only about 30% will report their assault to the authorities. Out of those, less than 20% will result in any kind of arrest, and out of those, less than 20% will ever be referred to prosecutors.

That someone should be presumed innocent until proven guilty is a bedrock American belief, and it’s one that we rightfully should cherish. But that’s assuming the system is fair and just, and in the case of sexual assault it simply isn’t. No, we should not have a system where we “believe all women accusers no matter what.” But neither should we have a system where being a victim means the justice system assumes you to be suspect at best, and threatens you with punishment at worst.

The system is rigged.

Take Christine Blasey Ford.  Even if we decide she’s telling the truth, we will say that the justice system can’t help her now because she waited 35 years to come forward. That statement seems entirely logical, and it feels fair. But it also carries little weight when we admit that the system likely wouldn’t have helped her if she had come forward 35 years ago, any more than it did the girl from my school. Or that the justice system likely won’t help her should she be assaulted by a man as respected as Brett Kavanaugh tomorrow. Or that, in addition to the justice system not helping her, there is a very good chance we will collectively work to destroy her reputation and make her life worse for having tried.

If you are a man who finds any of it hard to swallow, I ask one thing. Sit down with a woman you know and trust, and ask them how true these things sound to them, and the degree to which these scenarios reflect incidents in their own lives or the lives of people to whom they are close. Then, just listen. Don’t argue that they’re wrong, or try to poke holes in what they’re saying. Just listen. I’m sure it’s likely that one or two out of a hundred will tell you they’ve never come across anything like any of this. But I feel pretty confident I know what the other 98 will say. The number of women in your life who have been sexual assaulted is likely far, far greater than you know — even if you’re a conservative media news anchor.

The way our criminal justice system currently treats women who are the victims of sexual violence is… well, criminal. Or at least it should be. And although we might argue it’s gotten a little better since I was in high school, it hasn’t gotten that much better. And it won’t — it can’t — so long as the system is controlled by the same people who take comfort in knowing that it keeps them safe from justice, even if they’re guilty.

In fact, I would argue that there is one way — and one way only — to ensure that those in power force the system to be more just and fair for women who are victims of sexual violence:

Vote for more women.

 

(i) There are more than two accusations, but at the time of this writing a third is for being witness to sexual assault, and the others appear to be 100% anonymous.

(ii) I didn’t want to muddy waters here, so in this piece I am purposefully limiting myself to women who are victims of sexual assault. However, it should be noted that the system is equally terrible at dealing with men who are victims. The reasons are somewhat different, but the net result is largely the same. Police, prosecutors, and juries are likely to decide that male victims either deserved it or welcomed it, and the odds of the justice system taking them seriously are not good. Which is to say nothing of the way the system treats non-binary people who are victims, and which is just as terrible as you might imagine. Both of these related topics are equally important, and really do deserve their own pieces.

(iii) FWIW, this applies to myself as well. The night before this piece was published, a friend and old classmate told me he thought the assault at my school might have happened our junior year rather than our senior, though he said he wasn’t sure. I feel positive there is no way he could be correct about this — but he might be. There are a lot of details that I remember clearly that might not actually be correct; likewise, there are likely some very important details that I simply have no memory of having occurred. None of that means the assault didn’t happen, though, or that the girl from my school was any less a victim. Which, of course, is kind of the point.


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Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular contributor for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter. ...more →

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75 thoughts on “The Rigged System

    • Which her piece answers a question not even being asked in the present moment: Should we bring charges?

      The question to be answered is: Should this man be on the Supreme Court for the rest of his life?

      That seems a far easier answer.

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      • I keep coming back in my mind to “this is not a criminal trial, it is a job interview” and job candidates have been dismissed for far less stuff in their past. (And for lesser jobs: this is essentially a lifetime appointment, so, maybe 40 years’ influence)

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      • That seems a far easier answer.

        Actually, no. I’ve read most of Mitchell’s document, though probably not as carefully as others.

        There’s one particular point in there I thought was very smart, not directly related to the credibility of her allegations (or lack of it), which has gone largely unremarked but relevant to your comment above.

        That’s to say, the Ford allegations fail by a reasonable-doubt criminal standard. But in addition, they also fail by preponderance-of-the-evidence more-likely-than-not standard as well, and this is very important in the context of arguments like yours and other lib arguments of a similar nature.

        That’s to say, without a preponderance of the evidence, you really got nuthin’, and there’s no number of times that you can ritually incant “job interview” to change the situation.

        And even in preponderance-of-the-evidence-land, propositions still have to be argued for and established. “I believe her” is an emotional spasm, and defensible in isolation. But as something that’s intended to be conclusive to another party, it’s a disgrace. And there’s people here who should know better.

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      • I believe the correct analysis would have been that she was unable to draw any meaningful conclusions due to her questioning of Kavanaugh being cut off before she could get anywhere. I also agree that whether or not he’s prosecutable was never the question.

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      • I would argue she’s not, for two reasons.

        1. “Whether to bring charges” was not, in fact, what she was there to do. It’s not her state, it wasn’t what she was tasked with, and it wasn’t what her questions were aimed at.
        2. She did not conduct a full investigation. She didn’t even conduct a cursory one — after all, she was prevented from questioning one of the two people she was even allowed to talk to!

        How can you make a claim about whether to prosecute when you have questioned only one of the four people present (and started to, but were prevented, from questioning a second), much less bothered to seek out any information? Oh, and when you weren’t actually questioning them as a prosecutor, but instead were playing mouthpiece for a bunch of guys too scared to talk on their own?

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        • A lot of analysis on the Kavanaugh hearings indicates that it hurts the Republicans in the House but likely helps them retain control of the Senate. This is probably a net gain for the Republicans because it just means two years of gridlock for everything but judicial appointments.

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  1. Really well done piece, Tod. Thanks so much for sharing it. I so hope that girl has found peace and a good life.

    Forgive yourself- you were young then too.

    I have a story from my time as a prosecutor that I’m sort of itching to tell, but I think we are all worn out on this topic, maybe.

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  2. I’m going to go out on a limb with a hacksaw and slightly argue with part this beautiful piece that I really enjoyed reading.

    There is a practical reason why sexual assault victims – particularly when the accuser knows her assaulter – are treated differently than victims of many other crimes. If someone’s murdered, there’s a body, if someone is seriously assaulted, say, in a bar fight or whatever, they’ve got broken bones and oftentimes witnesses to back up their story about who started it. The police can see that a crime was committed. When someone steals from you, you had property and now they have the property. There’s a much more concrete footing to demonstrate a crime was committed. You absolutely do have to prove that you owned something to the police when someone steals from you. That’s why it’s so risky to leave your title in your car, because if someone steals your car, they can claim ownership. That’s why we keep cash in banks instead of in our mattresses.

    With a sex assault scenario there is none of that concrete evidence. It comes down he said, she said. There are rarely witnesses and evidence may or may not prove anything. Building a case has to come down to whose story is more believable and who is the overall more reliable witness. To investigate and prosecute such a case, by necessity entails recalling traumatic events in great detail and investigating the characters of both accused and accuser.

    It is not inherently sinister for the police to require a burden of proof to be met before investigating a crime. It’s actually reasonable that they do. One time my son was at a football game and our rather sketchy neighbor showed up at my door and claimed that my son had punched his son and broke his tooth and that he would need $500 for the dental bills right then and there or else he was going to call the cops. This didn’t sound like my son, so I put him off and drove to the football game. My son knew nothing about it and no one had witnessed any assault. I took pictures of my son’s uninjured hands and got the names of the people he was with and one of them knew the kid had broken his tooth a couple days before. It was a shakedown. The next day when he came back “for his money” I presented that evidence and he left. But if I didn’t have that evidence? If it was a he said, she said kind of thing and if he had gone to the police, it would have come down to who the police believed.

    Now, obviously, the police, authority figures in every arena, and the culture as a whole have too long erred grossly on the side of believing men and doubting women. Given men’s track record in this arena it really is a hideous level of wrong that women’s words are immediately doubted and that they have to basically prove their charges before they can even get their case investigated.

    But we can’t deny the reality that investigating and proving these type of cases is inherently different and much more challenging than other kinds of crimes. People’s reputations and credibility are called into question because there oftentimes is no other evidence to rely upon. That is, of course, a grueling process for the victims. They will have to relive the events again and again because that’s the only way the police will be able to investigate. Even under ideal circumstances the investigation is going to be invasive and traumatic. While we need to do far better to mitigate the effects (understatement of the century) I just don’t think we can always ascribe negative motives to police in every case because it may just be an unfortunate side effect of the nature of the crime itself.

    Great piece, Tod.

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    • Let’s say the neighbor did file that report and the cops did investigate. Do you think they would ask the alleged victim what he was wearing that might have provoked the punch? Why he would be at the game in the first place? Whether he had allowed the accused to punch him in the past? How many others he had allowed to punch him previously?
      That’s the difference. Rape victims are not simply asked to corroborate; they are asked to prove they didn’t want or deserve what happened to them.

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      • There is a large difference between getting punched in the face and having sex. People frequently have sex on a voluntary basis. It is much less common (except for people engaged in combat sports) for people to voluntarily get punched in the face. That takes it back to having evidence limited to witness testimony and having to establish the credibility of that testimony.

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      • Let’s say the neighbor did file that report and the cops did investigate. Do you think they would ask the alleged victim what he was wearing that might have provoked the punch?

        I don’t think that this point is inaccurate or irrelevant, but I think that it needs to be considered in context to be fully appreciated. As Tod points out, there are tribal factors at work.

        If a person gets mugged in a certain part of town and the police think that person doesn’t belong in that part of town, they may very well ask that person what they were doing and why they were doing it there. If two people get into an altercation and one of them is the right kind of person and the other is the wrong kind of person, we know who has the presumption of innocence and who has the burden of defense.

        Likewise, if the victim of a sexual assault is from the right tribe and the alleged perpetrators are from the wrong tribe, then the investigation looks nothing like the ones talked about in this post.

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        • In ten years of criminal law practice, I never had the victim blamed for a robbery. I’ve never seen a defense attorney defend his client by blaming the victim for being well dressed or wearing a nice watch in a bad neighborhood.

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        • And oldie but still relevant:

          “Help I’ve been robbed!”

          OK, isn’t it possible you gave him your wallet voluntarily, and maybe now you have regrets? I mean, you have a reputation of being easy, that you freely give money to charity.”

          “What? no, he mugged me!”

          “Look, you were walking in a seedy part of town in a nice suit- what did you expect?
          And why would you want to ruin someone’s life over something like this?”

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        • and

          Of all the things on which I would expect pushback, the observation that the criminal justice system treats crime victins in wildly disparate ways isn’t one of them.

          Here’s a story about a indigenous teenage girl in Canda who was kidnapped, but the police treated the case like a runaway: https://www.google.com.hk/amp/s/www.cbc.ca/amp/1.4425689

          Here’s a case of a black man that was killed by a package bomb, which the police initially investigated as either a targeted attack or an accidental detonation: https://www.thedailybeast.com/police-treated-first-austin-bombing-victim-as-a-suspect-before-two-new-explosions-proved-them-wrong

          I don’t know how many links I get before this goes into the spam folder, but two should make the point. Yes, the system is rigged. It’s rigged in a number of different ways along a number of different dimensions.

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          • @em-carpenter

            I don’t usually complain about this because it’s so minor and I have no proof of bias, just a hunch, but I feel the need to point out that j-r is NOT WRONG and this is my personal experience (less relevant than his links but it’s what I have), so:

            A few years ago all the windows in our car were smashed in. The middle-aged white cop who originally took my report was incredibly accusatory and basically tried to tell me I was lying about not having any enemies who would do something like this. I felt interrogated and accused, myself. He 100 percent did not believe me that as far as I knew it was totally random and was pushing hard at my story. It may be pertinent that I look pretty butch and I have a big tattoo on my chest, and we live in a very socially conservative town.

            I sicced Jaybird on them (middle-aged balding white guy) with a “I think MY HUSBAND is the best person to talk to about this,” and everything changed, they got way more polite and more serious.

            Later conversations all took place with my spouse and were all along the lines of “how awful that this happened, there’s been a rash of this in your neighborhood, it must have felt like a violation,” etc etc etc.

            ************

            In another situation, where I wasn’t a victim but I was reporting to the cops… back when we were poor, we lived in a gang-ridden part of town and I called in a domestic violence call on my neighbor because I could literally hear through the wall that he was throwing furniture at his kids. Dispatch wouldn’t send someone until they put me through the wringer of “does he have a gun?” “I don’t know, but he’s threatening to kill them” for about 10 minutes, and it took them 45 minutes to arrive. At one point I was told that if I was that worried, I should just go over there myself. (!?!??)

            About a year later, we moved across town to a good, college neighborhood and I thought *maybe*, I *might* have seen someone possibly cutting through the backyard in a sneaky fashion. The cops were there so fast they could literally have hung up the phone and no one even tried to suggest I was anything other than credible.
            ****
            That’s just anecdata, not proven anything, but I can tell you how different those experiences felt. And if me, a middle aged white lady who wasn’t reporting sexual crimes, felt that much disparate treatment, I can only imagine how much it can sometimes suck for folks who are far less insulated to report a crime.

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          • I’m not suggesting victims aren’t treated in disparate ways.
            I made a general point about the framework of how sex crime victims are treated. Not that no other crime victims aren’t treated badly- but disbelief or downplaying happens much more frequently than the victim blaming we see in rapes.

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    • Hey Kristen! Great to see you!

      I agree with what you’re saying here, but only up to a point.

      Frankly, it would be easier for me to accept that this was the issue at hand were there not so many cases where there is physical evidence, both of sex and violence, where police, prosecutors, and juries (and communities!) still decided that victim was lying or crazy and deserved no remedy. Most of the cases I link to, in fact, are ones where there was evidence, but really no one cared. And that’s to say nothing of the cases where the police, prosecutors, and juries decide a woman really was a victim of a crime, but a judge undoes it all and decides no punishment is deserved because… whatever.

      Still, I get your point.

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  3. This article uses a burglary investigation as an example. But what would happen if your neighbor stole your rake for a few hours, returned it in the same condition, and then claimed you’d loaned it to him? Or if you told the police that your neighbor tried to steal your rake, but when you confronted him about it, he left? I don’t think the investigations would go too far.

    ETA: Thanks, Kristin, for making this point better than I did.

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    • I doubt an investigation about a stolen rake would go very far regardless of the circumstances. It’s what, twenty dollars worth of merchandise?
      If a person slaps another person, the investigation probably wouldn’t go far (workplace HR maybe) even though the action was an assault. If a person beats another person to a bloody pulp, one would hope the police would investigate that assault.
      Sure, investigation and prosecution are difficult, but the first step is understanding that the crime is severe, and that seems to be a significant part of the problem. We can ascribe negative motives to people who don’t understand that rape and sexual assault are severe crimes that warrant investigations.
      Given that the perpetrators cover a wide spectrum of society, I don’t think it’s too much of a stretch to say we can see that we don’t really take rape and sexual assault seriously. But sure, it’s hard, so let’s just forget about it.

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    • Kristin certainly did.

      She acknowledges that the process is emotionally wrenching and tilted against the victim.

      That you could possibly compare sexual assault to something as trivial as ‘borrowing a rake’, let alone add in a bit implying that the victim is somehow ‘in the same condition’ afterward speaks volumes about your attitude and complete lack of sympathy or understanding.

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          • I didn’t want to do this, but here goes. If you compare a rape investigation to a burglary investigation, you can do it in two ways: comparing cases in which there is no physical evidence, or comparing cases in which there is. I didn’t want to discuss the kind of rape that would have physical evidence, so I chose the former. The point is that Tod should have compared two cases that were as comparable as possible, and if he did he would have found less difference in investigation.

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        • Tod’s comparison was to a home burglary investigation. There is no physical violence involved in coming home to find that your house has been broken into, but there is a sense of violation, trespass, fear of future attack. Faint in comparison to what the woman in his story almost certainly felt after being gang raped while unconscious, but at least an experience that has an impact.

          You went from that to the sort of case where the normal person would shrug and say ‘eh, rake is back, so no harm done’. How you imagined that would be the ‘least offensive way’ of framing it is beyond me.

          If you wanted to go for he said/she said, then make it a neighbor who broke in and then claimed to police that you had told them that if you weren’t there, they could just come in and help themselves to whatever they wanted to ‘borrow’.

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            • Even with a broken door or window, if it was treated the way our criminal justice system routinely treat rape victims, there would be pointed questions about whether the door had always been broken, whether you could *prove* the window had been broken by the burglar rather than some kids a tossing ball, and whether, if the neighbor did break the door/window, it was still okay since you’d neglected to give him a key when, as he claims, you invited him to help himself to your stuff.

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              • Although, if you then claimed the neighbor did it, the police would be right to ask how you knew the neighbor was responsible.

                Honestly though, if you want a better parallel, it would be to look at physical domestic abuse, especially if the husband is well regarded (as opposed to the caricature of a wife beater).

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                • Bingo.

                  Recommended reading on the research on rapists:
                  https://fivethirtyeight.com/features/science-says-toxic-masculinity-more-than-alcohol-leads-to-sexual-assault/

                  An important point here, too, is that much of the research relies on the prison population. But since most people who commit sexual assault don’t commit other crimes (and most rapists in prison seem to have committed other crimes) much of the existing research is likely skewed. Instead, researchers tend to rely on behavioral questions and surveys, without actually mentioning rape.

                  From what they do know, assailants have three things in common:

                  1. Are these men supported by peers who also voice negative attitudes about women?
                  2. Is it considered socially acceptable to look for the drunkest girl at a party and try to take her home?
                  3. Are there social consequences for young men who ignore consent?

                  To my mind, the Kavanaugh hearings totally failed as a teaching moment when it comes to teaching young men who ignore consent about the social consequences. We learned a lot about women who’ve experienced trauma, but failed to teach the lesson about consequences.

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  4. We have these discussions, as if men don’t understand rape, or are so hopelessly confused and need to be educated on what it is like, how victims react.
    Which is bollocks.

    One of the deepest male fears is being raped by another man, like in prison. And like female victims, male victims of rape tend to never speak about it, never come forward to name their accuser, and always feel ashamed and fearful.

    Men know. They just pretend not to.

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  5. You know, this article got me to thinking. For all the self-congratulatory patting on the back the Western world does regarding its treatment of women vs. that of supposedly backward countries (i.e. take your pick of any Middle Eastern theocracy), when the rubber meets the road the same attitude that forces women to wear a burka outside the home is very much present here in the West.

    If you are a man who finds any of it hard to swallow, I ask one thing. Sit down with a woman you know and trust, and ask them how true these things sound to them, and the degree to which these scenarios reflect incidents in their own lives or the lives of people to whom they are close. Then, just listen.

    As it happens, I did just this with a woman in my church yesterday. She’s an older (70s) lady who related to me a conversation she had with some friends of hers. Every single woman in this group of 10 or so had a story of sexual harassment or assault to tell. I was shocked. I have no idea how pervasive this is now or has been in the past, but her story really rocked me.

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  6. In cases of sexual assault, however, our society very much wants to believe that the victim is mistaken, overreacting, or lying.

    This is the truest part of your (GREAT!) article. And it is what has driven me so crazy about this story as it has developed. The lengths to which people–here and elsewhere–will go to convince themselves of these three things is simply staggering (particularly the middle one, as the facts presented and accusations made simply do not permit (and have never permitted) a conclusion that Dr. Blasey is overreacting.

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  7. I agree with nearly everything in this piece. With that said, how do we make things better? I’m not a lawyer so I am just speculating, but would it help if there were private court systems where the accuser and the accused could go through the justice process and ensure their privacy until the point of (possible) conviction? The thing that so many people fear is someone being falsely accused and even if found not guilty, their reputation is ruined. And the accuser fears they will be slurred, labeled, etc for bringing the charges in the first place. Seems like if everything was done in secret, this might alleviate some of those fears.

    And legal question, if someone is found guilty, does the legal system demand that the victim’s name be released?

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        • Juvenile criminal cases are treated differently; regardless of the kind of crime it is, they are confidential and closed (unless tried as an adult).

          An adult’s criminal trial must be “public” by dictate of the 6th amendment:

          “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;”

          I’m saying that I think your idea is a good one, but that it can’t be done without a change to the constitution.

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          • It’s hard for me to see a way to dramatically improve things without protections for both the accuser and the accused. I mentioned this in the other post yesterday but a person commented on one of the news shows yesterday that we are starting to do better on taking care of victims (admittedly a long way to go) but we also need to figure out how to take care of the accused.

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            • In what way are we not taking care of the accused? I hear this notion all the time and I’m seriously baffled by it.

              If you do the math on number of actual sexual assaults and people convicted (which presumably is both guilty people and people falsely accused, whatever that ratio is), it comes down to 7 per 1,000, or 0.7%. And not all of those are punished by the courts after they are convicted. I’m certainly not arguing that if if you fall into that category of people who are falsely accused and convicted that it doesn’t suck and isn’t a travesty of justice, but this idea that it’s this huge problem we need to be focusing on, I just do not get.

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              • I think what I am referring to is what Sam talked about in his post. He basically said that since the justice system is terrible we should use the court of public opinion to carry out their own justice and the standards there are justifiably lower i.e. guilty until proven innocent. And of course we know that the supporters of the accused often go after the accuser in effort to tarnish their credibility.

                If there was privacy for both sides, it would prevent that kind of mob justice from happening to either party.

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                • I…. have a million questions, so I’ll try to limit myself.

                  I’m not sure I understand why it has to be different from the way we handle any other crime. What is it exactly about this particular crime that it should be the justice system’s priority to hide the fact that someone has been accused of, arrested for, or is being prosecuted for sexual assault, so that no one in the community might think badly of them? Or do you want to have all criminal cases tried in public without releasing any information of what happens in them?

                  Do you think that, for example, when someone in MS13 is accused of or arrested for having raped someone, we should hide that fact from the public? Or is this more a thing we would grant to certainly predetermined privileged class(es)?

                  But maybe my biggest question which is this: Exactly what problem is it that exists right now that you are you trying to solve by wanting to create extra shields, protections, and public relations assistance for people accused of sexual assault?

                  As to what Sam said about public opinion: whether or not that’s what you and I want, it’s inevitable. If the justice system refuses to protect a particular community, that community is going to be hostile towards the justice system and the people who are perceived to be preying on them. That’s not an opinion of what should or should happen, it’s just a fact. Sam’s tongue is a flamethrower, but he’s not wrong. If the system isn’t being reformed (and it’s clearly not), why should we force women — especially women who have been victimized — to have their first priority be the most positive PR for the people they believe (or know) have sexually assaulted them?

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                  • It’s also a matter of other voices.

                    How often has one woman come forward, only to have others also come forward?

                    Privacy for the accused may, in fact, help him or her get off the hook in this way.

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                    • I agree absolutely with this. #MeToo worked so well because so very many women came forward and said… hey. Me too.

                      (Like, we can disagree about whether Franken’s sins were “that bad” or whatever but if it had just been that one woman in the picture who complained, Franken would still be in the Senate. It was the eight women who brought him down… and the main reason we knew about the eight was that #MeToo gave them the signal that they’d have social cover for telling their story.)

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                  • I should probably note, Mike, with my second question I’m not doing a “white male privilege” thing with you. I think I’m trying to point out that if we create a special system for people wanted for/ being quested about/ being prosecuted for sexual assault, we want to be careful about all the types of circumstances that would wrap up into it — unless as I said, we had different systems for different classifications of people accused. Which seems like a brand new can of worms to throw into an already fraught mix.

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                    • Tod

                      You ask…

                      “Exactly what problem is it that exists right now that you are you trying to solve by wanting to create extra shields, protections, and public relations assistance for people accused of sexual assault?”

                      …and you answer your own question in the OP:

                      “…with other crimes, our society wants to believe the victim. In cases of sexual assault, however, our society very much wants to believe that the victim is mistaken, overreacting, or lying.”

                      Remember I noted privacy protections for both the accused and the accuser. If the accused has privacy then perhaps they will be less inclined to slander the accuser and if the accuser has privacy, perhaps they will feel more emboldened to speak.

                      As I noted to Em, these are just ideas for how to fix the very problems you describe in the OP, not something I am passionately advocating for.

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                  • I understood it to be a suggested mechanism for keeping the victim’s identity private too, which isn’t really done for a variety of reasons, including open courts. And since that right to a public trial inures to the accused, I think Mike was suggesting this as incentive get defendants to agree to keeping it confidential, if their name is kept private as well.
                    I think it’s unworkable for a variety of reasons, but I didn’t read it as intended to meet a pressing need to protect the accused.

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          • I actually disagree with you here. As I understand the idea, it would be to keep things private to protect the possibly-innocent accused’s reputation. So all that would be needed from the accused would be a public trial waiver (akin to the speedy trial waivers that already exist).

            That said, my understanding is that the law is a mess. In California, for example, you cannot condition a sexual assault settlement (during litigation) on confidentiality. But, if you are suing for sexual assault under the law that permits childhood assaults to be sued on many years later, the complaint stays anonymous until a judge has a chance to look it over. Of course, this is civil–rather than criminal–but I think it shows the complexity of public feeling (at least in my state)

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            • I don’t think that’s accurate. Public trials are more than just the right of the accused- there’s also a right of the public to have access- the 1st amendment right of the press is an example.
              A defendant can’t insist upon a closed trial. It would be a very rare circumstance that a trial would be closed to the public.

              Civil cases are of course a whole other animal.

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              • So you’re right that public access judicial proceedings is a default, but that isn’t a Sixth Amendment issue, and it’s (to some extent) discretionary for the Judge (both when the parties ask to seal and when a third-party (e.g. journalist) asks to unseal. There is also certainly precedent for secret proceedings (including Qui Tam cases, where there is no national security issue in play).

                If the idea is for the government in a criminal sexual assault trial to always offer confidentiality (pursuant, perhaps to a statutory obligation), and to proceed that way if the accused waives their sixth amendment rights, I can see plenty of moral or ethical obligations. I can see the press hating it, and trying to wedge the First Amendment in there. But I cannot see the scheme being impossible.

                Maybe there is something about criminal law I’m missing, but I don’t see it yet.

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                • It’s unworkable because neither side may demand it and either side may object. And you can’t make it a rule because the constitution forbids it.

                  As a practical matter, as a defense attorney I have a hard time imagining a situation in which I would recommend my client waive a public trial. The defendant’s name has long been public at that point- it serves no purpose, but public trials certainly do.

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                  • Em – two questions:

                    1) What if the entire process was private from the moment an accusation was made, until the trial was completed?

                    2) What if all proceedings were recorded and archived so if the accused wanted an appeal or re-trial, there would be a record of all court proceedings for reference? And if the accused is found guilt, obviously some of the privacy goes away, at least on their side.

                    And I get that none of this may be constitutional today, but it seems reasonable to speculate about solutions.

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                    • 1. I think that could potentially have merit (if not for the obvious legal pitfalls). It would be difficult but it can be done, as it is when juveniles are charged. But then you’d have defendants of other crimes arguing that they should be likewise spared embarrassment and entitled to confidentiality. And you’d have an uproar from the press.
                      2. Pretty much all felony courts are courts of record, so that’s already the case.

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    • With that said, how do we make things better?

      As I said in the piece, vote for more women. Here’s the backward engineering:
      Basically what needs to happen is that victims of sexual assault need to be treated as victims by the justice system, not suspects, and those arms of the justice system that act directly or indirectly as advocates for victims of other crimes need to do so these victims was well. How do you do that? Make sure every line person buys into that simply idea. How do you that? Make sure all of their supervisors buy into that simple idea, How do you do that? Rinse an repeat, all the way up the layers until you get to the people with the most sway, who coincidentally are the people we have the most direct impact on their even having a job.

      So: vote for more women.

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  8. Here’s some pretty rigging for you.

    I was at a party with a friend. I had been drinking.
    8 She left with another boy, leaving me to find my own way
    9 home. Kavanaugh and a friend offered me a ride home. I
    10 don’t know the other boy’s name. I was in his car to go
    11 home. His friend was behind me in the backseat. Kavanaugh
    12 kissed me forcefully. I told him I only wanted a ride
    13 home. Kavanaugh continued to grope me over my clothes,
    14 forcing his kisses on me and putting his hand under my
    15 sweater. ‘No,’ I yelled at him.
    16 The boy in the backseat reached around, putting his
    17 hand over my mouth and holding my arm to keep me in the
    18 car. I screamed into his hand. Kavanaugh continued his
    19 forcing himself on me. He pulled up my sweater and bra
    20 exposing my breasts, and reached into my panties, inserting
    21 his fingers into my vagina. My screams were silenced by
    22 the boy in the backseat covering my mouth and groping me as
    23 well.
    24 Kavanaugh slapped me and told me to be quiet and
    25 forced me to perform oral sex on him. He climaxed in my
    14
    Alderson Court Reporting
    1-800-FOR-DEPO http://www.AldersonReporting.com
    1 mouth. They forced me to go into the backseat and took
    2 turns raping me several times each. They dropped me off
    3 two blocks from my home. ‘No one will believe if you tell.
    4 Be a good girl,’ he told me.

    That’s in the Senate Judiciary filings on Kavanaugh’s nomination. Filed the 26th; before his testimony, before his Fox interview, way before the ‘limited investigation’ was started. Obviously, this wasn’t considered ‘credible’ because she wouldn’t go on record for fear of having her life destroyed, again.

    I urge you to go watch his interview with Fox again. The bit about the “I didn’t have a car” seems suddenly comprehensible. Of course he didn’t.

    The woman wouldn’t provide her name. So we, the public, go without knowledge of this claim for days. I doubt the ‘female assistant’ knew of this, either.

    Read that report carefully. It’s horrific. Source: https://www.judiciary.senate.gov/imo/media/doc/09.26.18%20BMK%20Interview%20Transcript%20(Redacted).pdf

    I am enraged.

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  9. Great post Tod.

    I want (well, not really, but I feel compelled nonetheless) to share a perspective from the other side — that of the guilty perp.

    My first sexual encounter was what is now known as a date-rape. I was a drunken teen at a party, egged on by drunken friends to finally have sex with my girlfriend (who was also drunk at the time). I was all over her and she kept telling me no but didn’t really do anything to physically stop me, so I kept going. It was a weird dynamic in the ’70’s, with the female sexuality double-standard in full force, where the girl was expected to put up a good show of resistance while giving in for the first time, so as not to give the impression she was too easy — and everybody knew it.

    I had no idea at the time that what I had done was a rape — according to the narrative, this was how it was done. I was completely blind-sided when she showed up at my place of employment the next day with her older brother to confront me. They were both quite angry with me, but I guess the narrative of the day won out, because her brother backed off when I told him that her mouth said no but her body said yes, and then she calmed down too. My girlfriend and I continued to date for several months and had multiple fully-consensual sexual encounters afterwords, but that does not absolve the guilt of that first time. Not after I realized what I had done. That’s “not me”. It just couldn’t be.

    I haven’t seen that girl since the ’70’s. I have no idea how the encounter effected her long-term. I’ve tried unsuccessfully to track her down. I desperately want to apologize, certainly for her, but also for myself. All these years I’ve been unable to forgive myself. It’s effected every sexual relationship I’ve had ever since. I’ve damn near needed a written and notarized consent form to get over erectile dysfunction I don’t otherwise suffer from when having sex for the first time with a new partner. It’s been horribly embarrassing, but I definitely deserve that at the very least. And it’s completely eliminated recidivism, so that’s a positive I suppose. I honestly don’t think I’m even capable of repeating the crime, and I’m absolutely unwilling to. I can’t describe the shame I feel when I think of how she might have suffered over all these years from my actions on that one night so long ago.

    From my perspective, I can definitely envision Kavanaugh doing everything he’s been accused of and getting away with it, even feeling at the time like it was no big deal — the kind of thing that happens all the time. Same with everyone else at the party(s) — completely forgettable and now long forgotten. I got away with worse, and so did a whole lot of other guys in that era.

    I am so glad that we’re finally having these public conversations about consent and sexual misconduct, finally making small steps from “boys will be boys” and “no means yes if she doesn’t fight you off” to concepts of “enthusiastic consent or no deal”. I wish that had been the narrative when I was 17. Good riddance to the old ways of dealing with this, they can’t die out fast enough. A culture that encourages young men to be rapists and young ladies to be victims does not serve any of us well, and the repercussions of that era reverberate to this day.

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    • Sorry, I’m just seeing this now.

      I have to say that, although you clearly crossed a line, I’m impressed with your honesty with yourself looking back. I don’t know that many people are able to do that, and I wanted you to know I appreciate both your honesty and you willingness to share your story hear.

      I think you’re right about the importance of talking about consent, and how it’s part of what needs to happen to make a change.

      Thank you again for posting this.

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  10. It is a very insightful piece, thank you.
    We know the same High School stories, and I thought that it was Junior year, but the football team “train” story was really weird to hear. I was not at the party, and I just remember the same casual way that it was gossiped. The girls seemed capable of some laughter and fun-poking because the story included the word “shit-faced” about the girl. The she-had-it-coming crew was out in full force. It was a mess, and I would have supported any “whistleblowing”, but never felt that I had anything but hearsay, personally. I always assumed that the story of the “line of boys” was a cruel joke they played on her, saying that they had done it as a way of teasing her while drunk, but that actual “rape” was not part of the picture. Reputation meant a lot to all of us then and I assume that there was some sense of judgement that came through, as it did for you in reporting the case.

    The additional role of alcohol in these stories is not to be diminished, we have a great many problems that stem from liquid idiocy.

    As my parting shot, I am all full up on my quota of self righteous pricks of both sexes using their ink to tell other people they are “part of the problem”.

    Congratulations on a good following for your work, and blessings that it may be a good contribution to the understanding and bettering of our community.

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