I, like many Americans, saw significant sections of the Ford/Kavanaugh hearings. And several weeks after the hearings I am still left with two basic feelings. First, utter contempt for the political manipulations by the Democratic senators, particularly Feinstein. We did not have to have this spectacle, which has divided our country further, and I will blog in the near future about that. My other impression was that I was glad that we did have an additional FBI investigation. It could have been a much more extensive review if not for the political manipulation of Feinstein and company. Had this information been brought to the FBI when the senator had it then there would have been plenty of time for a full and fair investigation. I do not think that Feinstein should have been rewarded for her game of getting a long extended investigation, as it was clear that delaying the vote past the midterm was the strategy of the Democrats on the committee, but every accusation needs to be taken seriously and investigated. So I was quite pleased with the compromise worked out between Senators Flake and Coons.
This hearing provides me with a starting point for a meme that has gone around for a while. That meme is “Believe Women.” I have talked with several women in my lifetime about their experiences with sexual assault and even rape. I believed all of them as I heard their painful stories. I have personally watched a woman being physically assaulted while being powerless to do anything since I was a child. I know that too often allegations of women have been dismissed and that dismissal has allowed for continued victimization. And yet I cannot get behind this meme and see it as the potential to do real damage in our society.
Why can I not get behind this meme? Well for one reason Emmett Till. And for those who want to say that this false allegation is only because of white racism, I only need to raise the Duke Lacrosse team and Rolling Stone rape hoax about a fraternity at the University of Virginia. The Duke case concerns a black accusing white athletes while the University of Virginia situation was a white accusing other whites. Were these accusations merely mistaken or were they malicious? In the end does that really matter? The men in these stories were unjustly accused. In the Till situation the accusation cost his life. In the other two situations, there was not such a drastic penalty, but those men did suffer consequences and one has to wonder if there would have been greater consequences if those men did not have the resources to defend themselves.
I know the dangers of bringing up isolated cases to make a larger point. But the overcorrection to the past failure to take seriously the claims of women can have a dysfunctional institutional effect as well. Some of the recent changes on college campuses due to the Dear Colleague letter from the Obama administration has resulted in a situation whereby men accused of rape or assault are finding that their right to defend themselves has been short circuited. Even today there are some who argue that Kavanaugh should not enjoy any presumption of innocence. Generally we erred on the side of not punishing an innocent person even if it means that a guilty person may go free. Now it seems that some individuals want to reverse that priority. We should be careful about doing such a reversal without careful consideration of what it will mean.
Since I am bringing up these argument, let me tackle a couple of objections I see coming. First, I am not saying that being falsely accused is as bad as being raped or assaulted. But it is bad. Do you want to have people look at you as a rapist the rest of your life, if you are not one? And simply because it is not as bad as being raped does not mean that we should tolerate the injustice of punishing an innocent person. Having your hand hit by a hammer is not as bad as being raped either, but we would not tolerate having innocent people having their thumbs smashed for no reason whatsoever.
Yes, some estimates are that only 2 to 10 percent of all rape allegations are false. First, I think it would be incredibly difficult, if not impossible, to accurately determine that percentage. As a social scientist, I have to consider the tremendous difficulty there is in assessing whether a claim is false or not. But second, even if those percentages are correct, does that indicate that false allegations are meaningless? If we simply believe women, then we will sometimes reflexively punish someone who was in the wrong place, or the wrong relationship, at the wrong time. Is that justice? Is it so controversial to argue that both no person deserves to be assaulted/raped and no person deserves to be punished as an abuser/rapist unless that person committed the crime?
I fear that Believe Women has become a reflexively blind faith in a notion that women never lie and always can correctly identify their abuser, even if the proponents of this idea admit that there are some false positives. This clearly can set up innocent individuals for crimes they did not commit. Furthermore, whatever the level of false accusations are today, these will increase if we reflectively believe every accusation. We will create an incentive of women to use those accusations when it works to their advantage. I have seen this take place among some of my friends, where a women uses an accusation of sexual assault to gain an occupation or monetary advantage, and it was fairly clear that she had not been assaulted (in one case the man’s wife was in the room at the time she claimed he assaulted her). I am not saying that women are uniquely predisposed to lying. But they are human and have the same propensity to lie as men. So if we incentivize making false claims, then we will simply get more of them.
So if I cannot go to Believe Women, but know that there is a real problem with dismissing the complaints of women, then what do I propose. I suggest that we move from Believe Women to Investigate Claims. Every single claim deserves to be investigated. Each claim should be examined to the full extent possible with the resources one has and with as much care to the potential victim as possible. But if the evidence reveals the claim to not be true or if there is not enough evidence to support it, we also must be willing to drop that claim without prejudice to the potential perpetrator.
The Duke Lacrosse case is instructive. I remember recently seeing an ESPN show on that case. I remember when the charge came out that many of us automatically believed that the college students were guilty. I thought they were guilty as well. But as the ESPN show documented, the investigation began to reveal that Crystal Magnum, the black student making the claim against the lacrosse team, was not telling an accurate story. At some point the proper thing to do would be to stop believing Magnum and to drop all charges against the team. But the DA, Mike NiFong, pressed on, likely trying to ride the outrage of the charges to higher political office.
I have seen some material about whiteness and entitlement of rape. It is as if the idea that we take rape seriously will strike a blow against white patriarchy. But I think it more likely that a Believe Women meme is going to unfairly punish men who are marginalized by race or income than wealthy white men. Indeed, there is some evidence that men of color are more likely to be victimized by the new emphasis on stopping rape culture on college campuses than white men. It should not be a surprise that men without the resources to defend themselves are going to be more likely to be unfairly charged with a crime than men with sufficient resources.
Investigate Claims means just that. Investigate all claims as seriously as our resources allow. No allowances to write off a claim because the women is powerless or because she is making a claim against a powerful person. All the claims against President Trump should be thoroughly investigated without prejudice or discrimination. This is also a bipartisan call. Keith Ellison and Bill Clinton should get the same treatment that progressives want for Trump and Kavanaugh. Investigate Claims is a rejection of the old way of dismissing charges of rape and assault. But it does so with an attitude that minimizing the occurrence of false positives and unfairly punishing the innocent.
But would an Investigate Claims mentality potentially allow a guilty party go free? Not if we have evidence that he (and sometimes she) is guilty. But what if the evidence is not sufficient even though the perpetrator is guilty? With every type of crime there are times where our system of adjudication allows for a guilty person to walk away from his or her crime. It is an ugly price that we sometimes pay to make sure that innocent individuals are not punished. But is it worth it?
Let’s play out an investigation where there is not enough evidence to convict a guilty individual. For example, let’s say that we do have boss who is sexually harassing an employee. She tells his boss who undergoes a thorough investigation. But even with that investigation, there is not enough evidence to punish the perpetrator. Have we let him get away with his crime?
We have failed to punish him for his harassment, but we have also let him know that he is on our radar screen. This is going to make it harder for him to reoffend in the future. (And of course the business must do all it can to make sure he does not retaliate against the employee.) In a perfect world, all of the guilty would be punished and the innocent would go free. But we will not have a perfect world this side of heaven. The best we can do is make this one the best we can. The boss does go directly unpunished. But now he knows he is being watched. So if he tries a similar harassment, his chances of getting caught will be much higher and this may discourage him from creating future victims. And if, God forbid, he does reoffend he will set up a pattern that will make it easier to get the evidence to punish him for the future offense.
My preference is that we always have the evidence to punish those who engage in sexual crimes of all kinds – harassment, assault and rape. However, since we do not always have that evidence, what is the alternative to investigating the claims? To presume guilt despite lack of evidence will lead to some innocents, such as Brian Banks, to suffer prison time from a false allegation. It can create more victims such as Till, the Duke lacrosse team and the University of Virginia fraternity. An Investigate Claims approach that does not catch all perpetrators, but does discourage future crime as well as minimize our chances of convicting innocent individuals is the best we can do in a fallen world.
Finally, is it the case that I am arguing that we must forward full due process protection even when we are not looking at a criminal case? I fear too many activists are more than eager to punish someone on the basis of uncollaborated testimony, and yet dismiss the importance of that punishment as long as person is not jailed. Losing one’s job or being kicked out of a college is punishment. And if that punishment is not as bad as being thrown in jail, this does not mean that it is alright to fire or expel a potentially innocent person.
There is a different standard when depriving someone of a job as opposed of their freedom. But there is a standard. We need to struggle to think about what type of evidence would be insufficient to imprison someone but enough to fire that person. For me, there has to be some collaborating evidence beyond the testimony of the victim. There at least has to be evidence that the victim and accused were together at the time the incident is said to have taken place, even if we do not have complete evidence that an attack took place. That is the least we can expect before depriving someone of their livelihood.
I want to see our society have as united a front against sexual abuse as possible. Many of us cannot fully get behind Believe Women. But I think we all can, and should, get behind a demand to investigate all claims of abuse and go where the evidence leads us. Thus an Investigate Claims approach will garner more support than a Believe Women one while better positioning us to address issues of sexual harassment, assault and rape in the United States.