In a Society that Tolerates Sexual Assault
Hidden Corroboration in Sex Abuse Cases
When we last saw Brett Kavanaugh, he and his supporters were bitterly complaining about a lack of corroboration, no evidence, unfair delays and the bad faith of their opponents. With the publication of a definitive book by two New York Times reporters far more information is now available. The new information demonstrates the Senate investigation was deeply flawed and the charges are likely true. The larger story, however, is that the controversial nomination exposes a much bigger problem. The US response to sexual abuse severely tilted in favor of rapists and other offenders and these flawed practices force women and children to endure the most despicable crimes.
Throughout the process to consider the attempted rape report by Dr. Christine Blasey Ford, we constantly heard that there was no corroboration. This is a claim that is common in sexual abuse cases. Most sexual assaults are committed in private for obvious reasons. This means there are only two witnesses (three in the Kavanaugh case). Does this have to mean that as long as the attacker denies his assault there can never be corroborative evidence? Many people and even professionals who should know better expect DNA evidence to confirm a report, but many assaults would not leave DNA evidence.
When I served as an intern in a prosecutor’s office, we successfully prosecuted a case in which a cab driver was mugged and robbed. This was a difficult case to prove, particularly because of the need to prove the crime beyond a reasonable doubt. Nevertheless, we won a conviction based on contextual and demeanor evidence. Of course, this was not a sex crime so no one would consider that maybe the driver wanted to be mugged and robbed.
When I was an attorney, I tried a case seeking a protective order for a 15-year-old girl. She testified about a horrific experience in which her father sexually abused her. Anyone who saw and heard her testify knew immediately that she was sincere and that the crime was terribly painful. When she finished testifying, the judge immediately said there was no way she would leave without a protective order.
Corroboration is simply information or evidence that makes a report more likely to be true. Corroboration does not require a second eyewitness or an immediate report. Instead, a fair process would consider all the available evidence including the context to determine where the weight of the evidence lies.
Kavanaugh’s supporters were well-educated individuals and many trained in the law, so they clearly understood the meaning of corroboration. Some were so hyper-partisan that they could not be objective. Most, however probably believed there was no corroboration because our standard practices and biases hold victims to a far higher standard of proof than the law requires. They were probably unaware of the horrific consequences of the excessive burden of proof.
In the United States, based on research from the Centers for Disease Control and Prevention, one-quarter of our children will be sexually abused by the time they reach 18. I cannot tell you what percentage of women are sexually abused because it is the most underreported crime. There is a wide range of estimates depending on the definition of sexual abuse and how the crimes are counted. It is likely a majority and probably a large majority of women are victims.
We sometimes hear stories about judges that use extreme leniency for sexual abuse crimes because they don’t want to ruin the lives of the rapists. Of course, the victims are the ones whose lives are most likely ruined. There is no crime, with the possible exception of murder that does more harm. Nevertheless, we have never made it a priority to prevent sexual abuse.
The Excessive Burden on Victims
Many state and federal court districts have created gender bias committees. They have all found widespread bias against women litigants. Common examples include holding women to a higher standard of proof, giving women less credibility and blaming women for the actions of their abusers. Much of this bias is intrinsic so it is often unintentional, but that doesn’t change the enormous harm it causes and the benefit it provides to rapists and other sexual offenders.
The biggest obstacle to taking sexual offenses and domestic violence seriously is the widespread myth that women frequently make false reports. In reality, deliberate false reports by women are rare, probably less than 2%. In courtrooms across the country, the myth often becomes the reality and the myth, by itself, causes a reasonable doubt that prevents convictions or even charges.
The myth does enormous harm to our society. This is a major reason why women and children so often decide not to report sexual crimes. The consequence is that rapists are then available to commit more crimes and the likelihood that perpetrators will get away with their crimes encourage these despicable acts. And the failure to report the crime immediately is mistakenly believed to be proof the report is false as many assumed with Kavanaugh.
Our society rightly places a high value on our freedom. This is why there is a presumption of innocence in criminal cases and prosecutors must prove charges beyond a reasonable doubt before a defendant can be convicted and jailed. The problem is that these extremely high standards are often applied against women in cases in which no one is at risk of imprisonment.
If a neighbor was charged with child abuse, he would be entitled to the presumption of innocence. That presumption, however, only applies to the criminal court. No responsible parent would allow their child to play at the neighbor’s home based on innocent until proven guilty. Nevertheless, it is common for family courts and child protective agencies to treat the lack of a conviction as proving someone is safe for children.
Civil proceedings can and sometimes do involve underlying criminal behavior. This could include child custody, restraining orders or money judgments based on sexual assaults or domestic violence. The standard of proof is a preponderance of the evidence which means something is slightly more likely than not. In issues like child custody or protective orders, erring on the side of safety makes a lot of sense. Beyond a reasonable doubt requires proving something more than 99% likely. Using the lack of a conviction to undermine a report of abuse creates an unfair burden and empowers the worst abusers.
Senator Susan Collins, one of the deciding votes on the confirmation of Kavanaugh said he was entitled to a presumption of innocence which is the criminal standard. This is true if he was facing criminal conviction and jail, but not for what is essentially a job interview. While there is no definitive standard of proof for the confirmation process, do we really want to use a criminal standard where someone 99% certain to have committed a grievous crime is instead entitled to sit on the Supreme Court and decide how we will respond to sex crimes?
There are at least dozens and probably more people qualified to serve on the Supreme Court even if the pool of applicants is limited to the President’s ideological preferences. I think we should err on the side of avoiding potential sexual predators on the court. Kavanaugh does not have a right to serve on the court, but the nation has a right to be served by judges of unquestionable integrity.
The common misunderstanding of corroboration in the context of sexual abuse played an important role in the Kavanaugh confirmation and even worse continues to play an enormous role in the nation’s tolerance of rape and sexual assault. Context is critical in understanding sexual abuse and the context usually includes the fact that often there are only two people present; the victim and the rapist. We cannot just take the word of the alleged victim, particularly in a criminal case because that would violate the defendant’s fundamental due process rights.
I once had a custody case in which the evaluator said she could not find the father committed domestic violence as long as he denied it. In effect, she held the mother to a certainty standard. This was a fundamental violation of the mother’s rights. In order to be fair, a court or other agency needs to look at other available evidence to determine who to believe.
Corroboration requires considering evidence that supports or negates a report of abuse. We must avoid discrediting reports based on information that is not probative. Most sexual assaults are not reported for good reasons including our failed response to sexual abuse. Accordingly, the lack of a report is not probative. Until professionals and the public have a better understanding of sexual assault, we should listen to experts in sexual abuse to help us analyze the evidence.
In many cases, the victim told friends or family about the assault when it happened or shortly thereafter. This is usually strong corroborating evidence. What are the chances someone would declare themselves a victim of sexual abuse with all the pain and embarrassment that entails so they can raise the issue many years or decades later when it has special significance? The chances that this is some type of lengthy plot are close to zero.
More basically, what motive would a victim have to make up a report of sexual abuse? Victims are rarely believed but frequently blamed. Anyone investigating is likely to be skeptical. There could be rare cases where there is proof of some benefit but in most cases, it is harmful to the victim. Kavanaugh’s supporters tried to conjure up a political motive, but she was not partisan or a political activist, and had grave concerns about what reporting the attempted rape would do to her safety and her family. It turned out she had good reason to be concerned. At the same time, alleged offenders have obvious and powerful incentives to make false denials.
I believe the strongest corroboration for Dr. Blasey Ford was the couple’s counseling she participated in years before Kavanaugh was nominated. She and her husband had a dispute about remodeling their house. She insisted on a second door which on the surface seemed unnecessary. During therapy, she explained that she had been sexually assaulted as a teen and prevented from escaping. Her need for the second door was because she was still traumatized. What are the chances she made this story up years before the nomination so she could have this corroborating evidence?
Even before the report would be taken seriously, there had to be basic facts that made the report possible and realistic. Dr. Blasey Ford was the right age, lived in the same community and there were overlapping friendships. Some of Kavanaugh’s supporters, particularly after she was so credible, suggested it was a case of mistaken identity or some other good-faith error. The problem is that this was not stranger rape so she knew Kavanaugh. If there was a good-faith error it is much more likely Kavanaugh (and Judge) did not remember because of their drinking.
The Lesson of Kavanaugh is to take Sexual Assault Seriously
The politicians arguing about Kavanaugh could not agree about what occurred in a specific case. I think I know the answer, but instead, I want to focus on what political leaders should be easily able to agree upon. Gendered crimes like rape, sexual assault, sexual harassment, child sexual abuse, and domestic violence are far too prevalent in our country. There is no reason to continue to tolerate the life-altering consequences of these horrific crimes. We need leaders to come together to give the prevention of these gendered crimes the priority it deserves.
Only the most callous misogynist would support the offenders, so what is preventing a major campaign to prevent these crimes? The issue cannot be money because the money we now spend in health care, crime, lost production, and related costs are far greater than it would take to dramatically reduce these crimes. And the human costs are so much worse. Some have expressed concerns that defendants would be mistreated, but in reality, the remedy is simply to end the unfair advantages they now enjoy. No one is suggesting eliminating the constitutional rights that all defendants are entitled to.
Some people may be concerned that we already have too many people in jail. This is exactly the kind of crime that prisons should be for. The Quincy Model started because District Attorney Bill Delahunt noticed that almost the entire population of a nearby high-security prison were men exposed to domestic violence and sexual abuse as children. He believed that if he could prevent domestic violence crimes, he could reduce all crimes and this is exactly what they accomplished. A county that averaged 5-6 DV homicides annually enjoyed several years in a row with no murders. Abusers learned that the laws were being strictly enforced so they decided to stop committing their crimes. Today, the lax enforcement and discouragement of reports encourage men to assault women. The opposite will happen when we make preventing gendered crimes a priority. And child victims and witnesses will be less likely to grow up and commit more crimes.
Here is what we need to dramatically reduce gendered crimes.
- We need a commitment to make the prevention of these crimes a national priority. This will require strong leadership and cooperation among politicians who should at least be able to agree on this.
- The tolerance for one-quarter of our children being sexually abused must come to an end. Sexual abuse must be treated as a crime whether it is committed by a stranger, someone the child knows or a close relative. Professionals working on child sexual abuse need to be retrained particularly to destroy the myth that women and children frequently make false reports. Interviews of children should be conducted by specialists in child sexual abuse and the children should be given the time to develop a trusting relationship before being expected to speak about the most painful and embarrassing experience in their lives. Prosecutors should follow the Quincy example and create special offices to prosecute incest. Our priority needs to be protecting children rather than reunification.
- There should be a major national campaign to eliminate child sexual abuse. People need to learn how common this crime is. The White House should take the lead once there is a President who can make the prevention of sexual abuse a priority.
- Family courts must recognize their abject failure in responding to reports of child sexual abuse. Courts should create special courts or sections of courts to respond to child sexual abuse. Evaluators who are involved in a wide variety of custody disputes are not qualified for the specialized needs in child sexual abuse cases. Judges must implement practices that encourage attorneys and victims to report sexual abuse. Good faith reports must never be punished. Practices should be implemented to prevent the silencing of children and courts must err on the side of protecting children.
- Prosecutors must make sexual offenses a priority. They need to avoid practices that retraumatize the victims. More resources should be given to respond to sex crimes and lawyers and other professionals who focus exclusively on sex crimes should be leading this work. Consideration should be given to making victims more comfortable such as having women professionals interview women victims. Prosecutors should expand the use of expert witnesses so that myths and misunderstandings do not create reasonable doubt. Good cases should be brought even if they may reduce the prosecution’s batting average.
- The rules passed in the US Department of Education to help alleged sexual abusers and discourage reports from victims must be withdrawn. The burden of preventing sexual assault should not be limited to women. Men should be given an important role in discouraging sexual assault, and violations should be taken seriously.
- Sexual assault in the military should be taken more seriously. The cases should be handled by experts in sexual assault. There should be serious consequences for offenders and officers who protect abusers or minimize their assaults.
- The media has an important role to play in the prevention of sexual assaults. These crimes should not be glamorized and the aftermath should be shown. The public should learn of the failure to prevent sexual assault, particularly to children. Just as the insurance industry created a campaign that talks about the cost to the public from fraudulent claims; we should have public service commercials that describe how we all pay for tolerating sexual abuse and that deliberate false reports are extremely rare.
- Statutes of Limitation both civil and criminal should be eliminated for sexual abuse cases. This will make it less safe for offenders and more likely that victims can be vindicated. Care should be taken to avoid gender bias and an improved understanding of what evidence is corroborative should be created.
Gendered crimes have long been denied and minimized because in a sexist society men’s lives are treated as if they were more important than the lives and potential of women.
The Adverse Childhood Experience (ACE) study demonstrates our present level of cancer, heart disease, diabetes, mental illness, substance abuse, crime, suicide, and many other health and social problems would significantly diminish if we prevented domestic violence and child abuse. The same is true for the gendered crimes I have discussed in this article. Life expectancy which has recently declined after decades of improvement would be substantially increased by a reduction in gendered crimes.
The United States spends over one trillion dollars every year to allow men to abuse their intimate partners. When we add the benefits of preventing sexual abuse of women and children, the potential savings are even greater. Unlocking the full potential of people who are now held back because of the crippling effects of sexual abuse will expand our economy in the most marvelous ways.
There was never a good reason to tolerate these gendered crimes and there is no good reason to continue our failed responses that only benefit misogynists. The Women’s movement and the “Me Too” movement have led to more coverage of these heinous crimes. The further progress I want to see is when this media coverage leads to prevention.