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.
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.