By: Lily Pedersen
In September 2018, sexual assault accusations against Supreme Court nominee, Judge Brett Kavanaugh, became a central topic in public discourse. The alleged assaults, which occurred during Kavanaugh’s high school and college years, were revealed after a number of women came forward, initiated by Dr. Christine Blasey Ford. “I believed he was going to rape me,” Ford told the Senate Judiciary Committee on September 27, 2018.[1]At the time of writing, the investigation is developing and no result has been reached. However, the event revealed a deep division in the American public’s opinions and assumptions regarding rape and assault accusations and the accusers themselves. Is she credible? Is she lying for politically motivated reasons? Is this a smear campaign? Should such actions by a teenager affect his career decades later? Why did she not speak up before?
Though this may be viewed as a unique event, the Kavanaugh accusations have occurred during an era that is particularly focused on sexual assault allegations and the silence and suspicion that surrounds them. In the past year, women have come forward with accusations of sexual assault, sexual harassment and rape against many prominent actors, producers, politicians, CEOs, and even the President of the United States. Most notably, since October 2017, more than eighty women have made accusations of sexual misconduct against Harvey Weinstein, a Hollywood Producer.[2]Bill Cosby, a household name, was accused by more than fifty women of sexual assault.[3]President Trump has been accused of sexual misconduct by nineteen women.[4]According to Sarah Huckabee Sanders, the official White House position on the allegations against Trump is that all of those women are lying.[5]This trend of revealing sexual assault has culminated in #MeToo, a popular campaign on social media, revealing how pervasive sexual misconduct is in society.[6]
The political reaction to the accusations against Kavanaugh have been divided due to the revelations occurring at such a critical point, during the Supreme Court nomination hearings and close to the midterm elections. Trump was quick to speculate that the accusations were nothing more than a smear campaign instigated by the Democratic Party. On September 27, 2018, he tweeted “Democrats’ search and destroy strategy is disgraceful and this process has been a total sham and effort to delay, obstruct, resist.”[7]Trump and the White House also have attempted to undermine the women who have accused Kavanaugh of assault. On September 21, 2018, Trump tweeted his disbelief of the first accuser, “I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents.”[8]In response to the second accuser, Deborah Ramirez, the White House created a ‘fact sheet’ designed to discredit her allegations.[9]It reasons, among other things, that she was drinking, Kavanaugh’s friends do not believe he would do this, and she failed to tell her best friend of the assault.[10]The kind of reasoning used by Trump and the White House appears to be outdated and lacking a fundamental understanding of victims of sexual assault. Trump’s tweet regarding Ford triggered a social media hashtag, #WhyIDidntReport detailing reasons victims of sexual assault did not report their assaults.
Suspicions regarding the credibility of those that accuse sexual assault or rape has become apparent during the course of the Kavanaugh allegations. According to the National Sexual Violence Resource Center (NSVRC), one in five women and one in seventy-one men are raped at some point in their lives, and in the United States, one in three women experience a form of sexual violence in their lifetime.[11]Though Trump questioned why Ford did not report, the US Department of Justice found that sixty-three percent of sexual assaults are not reported, and that number rises to ninety percent on college campuses, the alleged location of one of Kavanaugh’s assaults.[12]Reasons given for not reporting include “fear of reprisal”, “fear of the justice system”, and “fear of lack of evidence.”[13]For those that do report, what safeguards are there in place?
Some legal safeguards have been put in place, largely as a result of women’s rights movements. Rule 412 of the Federal Rules of Evidence, known as the “Rape Shield Law” prevents the alleged victim’s sexual history or sexual predisposition to be admitted into evidence in a trial involving sexual misconduct with limited exceptions.[14]This rule, introduced in the 1970s, marked a departure from the common law that allowed admissibility. The elements that combined to allow admissibility under common law included, “the fear of false charges brought by vindictive women . . . the concept that chastity was a character trait . . . [and] the belief that premarital sex was immoral.”[15]The departure from this view occurred, in part, due to “[t]he growing awareness of the equality of women.”[16]The Rape Shield Law aims to “shelter the victim from humiliation and psychological damage” and to encourage “the reporting and prosecution of rape.”[17]The Rape Shield law shows that over forty years ago, the government was aware of the repercussions victims face from reporting their assaults and made attempts to limit this fear.
More recently, a 2013 amendment to the Clery Act requires colleges that receive federal funding to “provide reasonable accommodations and protective measures” to victims of sexual violence, “whether or not they decide to report to law enforcement.”[18]This shows an awareness that victims can be reluctant to report their assault. In 2016, Rise, a non-profit founded by a sexual assault victim, drafted and passed the Sexual Assault Survivors’ Bill of Rights unanimously through Congress.[19]The “bill of rights” intends to establish statutory rights for sexual assault survivors such as the right to “receive a forensic medical examination at no cost,” and for a rape kit to be preserved for the maximum applicable statute of limitations, recognizing that victims may not promptly report their assault.[20]Measures taken to safeguard sexual assault victims in the legal system show an understanding that victims are reluctant to report and are afraid of repercussions.
Despite the new resolutions and legal safeguards, sexual assault is still vastly under reported. The backlash that Ford and other Kavanaugh accusers received makes this understandable. High profile sexual assault cases in the past year have shown a resilience and desire for justice but also a deep mistrust of the credibility of sexual assault allegations. It will be interesting to see if new measures such as the Sexual Assault Survivors’ Bill of Rights impact the level of sexual assault reporting.
[1]Niraj Chokshi & Julia Jacobs, Brett Kavanaugh: The News, the Hearing and the F.B.I. Investigations, NY Times, https://www.nytimes.com/2018/09/26/us/politics/kavanaugh-news.html (last updated Sept. 30, 2018).
[2]Sara M. Moniuszko & Cara Kelly, Harvey Weinstein Scandal: A Complete List of the 87 Accusers, USA Today, https://www.usatoday.com/story/life/people/2017/10/27/weinstein-scandal-complete-list-accusers/804663001/ (last updated Jun. 1, 2018, 4:51 PM).
[3]Graham Bowley & Jon Hurdle, Bill Cosby is Found Guilty of Sexual Assault, NY Times, (Apr. 26, 2018), https://www.nytimes.com/2018/04/26/arts/television/bill-cosby-guilty-retrial.html.
[4]Matt Ford, The 19 Women Who Accused President Trump of Sexual Misconduct, The Atlantic, (Dec. 7, 2017), https://www.theatlantic.com/politics/archive/2017/12/what-about-the-19-women-who-accused-trump/547724/.
[6]Anna Codrea-Rado, #MeToo Floods Social Media With Stories of Harassment and Assault, NY Times, (Oct. 16, 2017), https://www.nytimes.com/2017/10/16/technology/metoo-twitter-facebook.html.
[7]Donald J. Trump (@realDonaldTrump), Twitter(Sept. 27, 2018, 3:46 PM) https://twitter.com/realDonaldTrump/status/1045444544068812800.
[8]Trump (@realDonaldTrump), Twitter(Sept. 21, 2018, 6.41 AM) https://twitter.com/realDonaldTrump/status/1043126336473055235.
[9]What You Need to Know About the Allegations Made in The New Yorker Article on Judge Brett Kavanaugh, The White House, (Sept. 23, 2018) https://www.whitehouse.gov/briefings-statements/need-know-allegations-made-new-yorker-article-judge-brett-kavanaugh/.
[11]National Sexual Violence Resource Center,https://www.nsvrc.org/statistics (last visited Sept. 28, 2018).
[13]Reporting Sexual Assault: Why Survivors Often Don’t, Maryland Coalition Against Sexual Assault, https://ocrsm.umd.edu/files/Why-Is-Sexual-Assault-Under-Reported.pdf (last visited Sept. 28, 2018).
[15]J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. Pa. L. Rev. 544, 546 (1980).
[18]Campus SaVE Act, Rainn, https://www.rainn.org/articles/campus-save-act (last visited Sept. 28, 2018).
[19]Rise, http://www.risenow.us/about-rise (last visited Sept. 28, 2018).
Law Journal for Social Justice 