This article is going to be a post about sexual misconduct and the #MeToo movement in general, and, more specifically, about pertinent events in the past two months, particularly in light of the #MeToo movement’s surge in popularity in India, with accusations being leveled against prominent journalists, comedians, people in the film and music industries, authors, religious leaders, and politicians.
Before I start with the body of this post, I just want to make one clarification on terminology, specifically regarding the use of the words “sexual misconduct,” “sexual harassment,” “sexual assault,” and “rape.” I use “sexual misconduct” and “sexual harassment” interchangeably to mean verbal or physical conduct of a sexual nature without the presence of affirmative consent (i.e. explicit consent, as opposed to implied consent). I use “sexual assault” to refer to the specific subset of sexual harassment that involves physical contact. I use “rape” to mean the specific subset of sexual assault that involves sexual penetration (this might be oral, anal, vaginal, etc.) without affirmative consent, including being made to penetrate someone else.
Let’s start with an admission of some degree of personal bias, as well as something I wanted to say about myself. Me too. I, like many other people, have been sexually assaulted multiple times. This post isn’t about me, however, and I don’t particularly want to get into the details of what happened to me.
We should believe victims of sexual harassment when they come forward as being sexually harassed, and that we should take action accordingly against accused perpetrators. I’m in favor of firing people who’re accused of sexual harassment. I support shunning powerful people who’ve been accused of engaging in sexual misconduct – I’m okay with Harvey Weinstein being blacklisted from Hollywood. And I support public blacklists of people accused of harassment.
The common objection to these actions is that individuals accused of sexual misconduct are innocent until proven guilty – that many of these accusations are likely false accusations and we shouldn’t punish innocents, and that even if they aren’t, we should not take action without proof beyond a reasonable doubt that the accused are sexual harassers. In other words, until they’re tried in criminal court, they should not be punished.
Here’s a piece of data: 2–10% of sexual assault allegations are provably false. Lisak et al. (2010) conduct a brief review of the existing research on false sexual assault allegations and then do research to extrapolate their own data (which finds a number of 5.9%), and thus approximate all the existing reliable data to a range of about 2–10%. The basic methodology of these studies is to attempt to prove allegations false. Obviously, there will still be some allegations that are false but not proven false. However, there are good logical reasons to believe that they are very few in number: in short, accusing people of sexual assault leads to tremendous scrutiny, suspicion, and repeated interrogation, and is likely to destroy your life to a significant degree (perhaps not as much as the degree to which the accused’s life is destroyed, but significant nonetheless). Thus, a significant majority of sexual assault allegations are true.
I will note, however, that these victims/accusers are typically unwilling to go to court. Here’s multiple reasons why: First, going to court is a long, time-consuming process that involves a lot of money and a lot of time off personal schedules, which these accusers are unwilling to go through. Next, often, they don’t have sufficient evidence that would be admissible in court, both because there’s often little evidence in sexual harassment cases and because they’re only willing to come forward as being sexually harassed much after the action occurred. Furthermore, going to court involves judges and jurors asking deeply personal questions and reliving the trauma of what occurred. In addition to all of that, losing a case would be absolutely devastating to their emotional health, if they’re actually telling the truth (which we’ve established is incredibly likely – nearly certain, in fact).
We should believe victims who come forward and take actions accordingly, then, for three reasons. First, it would create a deterrent against powerful people engaging in sexual misconduct. I’m not sure the research has been done yet, but I imagine rates of sexual harassment will reduce after the #MeToo wave, because people aren’t afraid to call it out. When people are in positions of wealth and power, they probably aren’t too afraid of a court case, when they’ve got expensive lawyers to pay for and win the court case, and are often able to negotiate settlements long before these cases reach the court process. This opens up to a free rein of engaging in sexual misconduct. There’s positive utility in creating a deterrent to that which is not contingent on the criminal justice system.
Second, believing victims creates a virtuous cycle of more victims coming forward as being sexually harassed. Why? Because victims think they’re going to be believed. If we didn’t believe victims, it would make them feel unsafe when they came forward. Their stories wouldn’t be believed. They would be ridiculed, trolled on the Internet, and, in extreme cases, subject to rape and death threats. This is beneficial for many reasons: one, it helps us acknowledge that there is a significant problem of sexual harassment in particular industries or spheres of life; two, it is often emotionally liberating for victims to be able to come forward; and three, it creates a virtuous cycle of deterrence against the repetition of these crimes.
Third, believing victims prevents recidivism. People who engage in sexual misconduct are very likely to repeat their actions of sexual misconduct. To be sure, the numbers for this don’t hold up for people who have served time in prison (i.e. sex offenders who serve time in prison aren’t particularly likely to reoffend when compared with perpetrators of other crimes who also served time in prison). However, they probably do hold up for people who haven’t been caught yet or haven’t gone through some punishment. In any case, there is a risk of them remaining in their fields and continuing to engage in sexual harassment, creating future victims. A lot of the famous people accused in the #MeToo movement have been accused multiple times. Just to name a few: Theoretical physicist and cosmologist Lawrence Krauss. Kevin Spacey. Morgan Freeman. Ballet dancer and choreographer Peter Martins. Cristiano Ronaldo. California State Assembly member Cristina Garcia. The list goes on.
Obviously, a few innocent people will be hurt. That really sucks. But we’ve got to look at the numbers here. The number of people who’ll be helped far outweighs the number of people who’ll be hurt.
The objection goes that people are innocent until they’re proven guilty in criminal justice, so they should be when it comes to punishment inflicted by society. I disagree. I think criminal justice is different because, in the context of criminal cases, the prosecution is typically a public prosecutor with full access to the resources of the state, evidence gathered by law enforcement, and time to construct a complete case. There’s an imbalance of power between the prosecution and the defendant. To bridge that gap, the burden of proof is placed on the prosecution. That doesn’t mean the same burden of proof standard should be extended to societal punishment.
Thus, the #MeToo movement – in naming and shaming perpetrators – has done more good than harm.
Let’s talk about the Supreme Court of the United States; specifically, I’m talking, of course, about Associate Justice Brett Kavanaugh. In his recent confirmation hearings, three people came forward accusing Justice Kavanaugh of sexual assault. Of them, Dr. Christine Blasey Ford testified in front of Congress about her sexual assault, which occurred when Kavanaugh was in high school. The testimony was very credible. Nonetheless, as with Justice Thomas in 1991 (who faced sexual harassment accusations from Professor Anita Hill), Kavanaugh was confirmed.
Before I start with the analytical portion of this section, I just want to note that the Kavanaugh hearings scarred me on an emotional level. Kavanaugh’s testimony was awful. President Trump’s treatment of the issue, and his vicious mocking of Dr. Blasey, was just as awful. I had a week of multiple sleepless nights and a lot of sadness. And I’m sure survivors across the world had a week that was much worse than mine.
I have many political reasons to think that Kavanaugh isn’t going to make a good justice. However, independent of those, I think the fact of the credible allegations of sexual assault existing against him, as well as his behavior during the confirmation hearings, are sufficient reason to make Kavanaugh’s confirmation unjustified. There are three reasons, in particular, why I think this is true.
The first reason is justice. As I argued above, individuals accused of sexual assault should face consequences for their actions. Those consequences are justified even if they come very late, because it deters future potential perpetrators of sexual violence, prevents recidivism, and contributes to the culture of survivors feeling safe when they come forward.
The second reason is because a Supreme Court justice who (likely) engaged in attempted gang rape in high school and is still unapologetic about it (denying that it ever happened in an effort at self-preservation) is unlikely to be a good justice, particularly on issues relating to women and sexual violence. It extends to issues like the constitutionality of banning abortion in cases of rape and the constitutionality of affirmative consent laws – indeed, the latter has been the subject of debate.
The third reason is that he demonstrated his lack of sufficient competence for the Supreme Court in the confirmation hearings – through his clear lies and misinformation, through his mocking of Senators, and, importantly, through the fact that he indicated particular political bias against the Democratic Party. All of these things, aside from the sexual assault itself, make him insufficiently competent for a position on the Supreme Court.
I didn’t really doubt that he would be confirmed. And there’s not much we can do about it, at this point. That’s largely why I’m keeping this section short.
I use Kavanaugh as an example of my larger point: people in positions of power should not be in their positions of power if they engage in sexual harassment or did so in the past. And the standard, in my view, is affirmative consent. Ezra Klein makes a good argument for affirmative consent laws – laws that prosecute for sexual assault or convict people of sexual assault if there is no explicit consent. The standard, he notes, is “you’d better be pretty damn sure.” He says:
The Yes Means Yes law is trying to change a culture of sexual entitlement. That culture of sexual entitlement is built on fear; fear that the word “no” will lead to violence, or that the complaint you bring to the authorities will be be ignored, or that the hearing will become a venue for your humiliation, as the man who assaulted you details all the ways you were asking for it. “No Means No” has created a world where women are afraid. To work, “Yes Means Yes” needs to create a world where men are afraid.
For that reason, the law is only worth the paper it’s written on if some of the critics’ fears come true. Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.
This post has a simple tl;dr: believe survivors.