Susan Collins just saved the women’s movement and its progress on rape prosecutions washex.am/2CvE3of
The fight over Justice Brett Kavanaugh's Supreme Court confirmation exposed fatal flaws in the “Believe the Victim” approach to sexual assault.
That approach is spreading rapidly through the country and is being actively promoted as the basis for deciding campus misconduct complaints as well as criminal cases.
As interpreted by too many political advocates, the command to “Believe the Victim” tramples the principles of fairness, justice, and due process which have long inspired the feminist effort to reform rape law and have carried that effort to victories over half a century.
This week, we all saw it in action. Demands to “Believe the Victim” thrust the U.S. Senate, charged with offering advice and consent on a Supreme Court nominee, into the impossible position of deciding fiercely disputed 36-year-old allegations of violent sexual crimes.
Simultaneously, senators were told that it would be “woman-hating” to question, or even seriously consider, the obvious gaps of memory, completeness, and logic raised by those making the allegations.
Into this breach stepped Sen. Susan Collins, R-Maine, with a rational, compassionate, fairness-based defense of due process — just the thing that was needed in this highly sensitive political setting. The women’s movement owes Collins its profoundest thanks and gratitude.
As painfully demonstrated by the chaos it produced during the Kavanaugh confirmation process, the “Believe the Victim” mantra flatly contradicts the most fundamental principles of justice, in any public setting whether criminal, civil, or political.
It does this in at least three ways, all of them flawed as matters of history, law, and basic fairness.
First, “Believe the Victim” advocates have argued not only that allegations of sexual assault need no corroboration, but that to seek such corroboration is to restore the rape laws of the bad old days, before the nationwide reforms of the 1970s and 1980s.
As a matter both of history and practice, their argument is dead wrong.
In addition, some in the “Believe the Victim” movement would restrict the relevance of the presumption of innocence — the idea that a person charged with wrongdoing is “innocent until proven guilty” — to criminal adjudications only. This gets the truth exactly backwards.
Finally, and perhaps unintentionally, “Believe the Victim” advocates have pursued their mantra with a single-mindedness which seems unwilling to consider the very real costs to women and sexual assault survivors that could result from their efforts.
By inveighing against those who seek to enhance the clarity, completeness, and coherence of sexual assault allegations through normal evidentiary processes, they run the risk of reviving and strengthening some of the very malignant stereotypes about women:
That being, that women are too weak to withstand the rigors of public debate and disagreement; that women are ruled by emotions rather than by reason; and that women cannot be trusted with power because they are unable to think independently or to give objective fairness its due.
The stereotypes these activists are reviving are the same ones which for so long sustained the special rules that burdened rape prosecutions in our criminal law.
Already, in some public commentary about the confirmation, these insidious stereotypes are raising their ugly heads. It is not too much to ask that such costs be openly considered and discussed before the “Believe the Victim” movement claims to be acting in the name of all women.
In her speech about the Kavanaugh nomination, Sen. Susan Collins stood up for the values of fairness, justice, and due process for which feminist and rape law reformers have fought so hard. Many women agree with those values and with her.
Those who teach, write, and work in this area should view the Kavanaugh confirmation fiasco as a cautionary lesson, and to reconnect the movement for women’s equality with those values which have been the best friends to women, sexual assault victims, and all the vulnerable.
