Guilty until proven innocent: Trump’s Kavanaugh defense shows how we treat people who report assault

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President Donald Trump at a rally in Southaven, Mississippi, on Tuesday, during which he discussed Supreme Court nominee Brett Kavanaugh.

This is what Trump, Bret Stephens, and others get wrong about false allegations of sexual assault.

“A man’s life is in tatters,” President Trump said at a rally on Tuesday night. “A man’s life is shattered.”

He was talking about Supreme Court nominee Brett Kavanaugh, who has been accused of sexual assault or other misconduct by Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick. Kavanaugh has denied the allegations.

“They want to destroy people,” Trump said, talking about Kavanaugh’s accusers, their supporters in the Democratic Party, or both. “These are really evil people.”

Also on Tuesday, he told reporters, “It’s a very scary time for young men in America, when you can be guilty of something that you may not be guilty of.”

It’s becoming a common argument: False accusations of sexual assault are a serious problem, perhaps even more serious than sexual assault itself.

On Wednesday, Senate Majority Leader Mitch McConnell cast the sexual assault survivors and other advocates protesting against Kavanaugh as bullies impeding the course of justice.

“If facts and evidence couldn’t get the job done, then intimidation tactics and bullying would have to do,” he said. “I want to make it clear to these people who are chasing my members around the hall here or harassing them at the airports or going to their homes, we’re not going to be intimidated by these people. There is no chance in the world they’re going to scare us out of doing our duty.”

And in a column on Thursday in the New York Times, Bret Stephens praised Trump for refusing to back down “in the face of the slipperiness, hypocrisy and dangerous standard-setting deployed by opponents of Brett Kavanaugh’s nomination to the Supreme Court.”

Stephens added, “Falsely accusing a person of sexual assault is nearly as despicable as sexual assault itself.”

No one disputes that falsely accusing someone of sexual assault is wrong and harmful, as is falsely accusing someone of any crime. But Trump, Stephens, and others treat false allegations of sexual assault differently from false allegations of other crimes. Nobody would argue that a false accusation of burglary casts doubt on other, unrelated burglary charges. And no one would say that because people occasionally lie about burglary, anyone who reports burglary should be preemptively treated as a liar and a bully — but that’s exactly what’s happening to Ford and to Kavanaugh’s other accusers.

Stephens and others argue that allegations of sexual assault are different than allegations of other crimes because they are uniquely harmful to the accused. But high-profile men accused of sexual misconduct as part of #MeToo are already returning to the spotlight, just months after allegations surfaced. In fact, what’s unique about sexual assault allegations isn’t the effect they have on those who are accused. It’s the fact that, unlike those who come forward to report other crimes, people — especially women — who report sexual assault are treated as guilty until proven innocent.

Allegations of sexual assault are treated differently from allegations of any other crime

On Friday, the day after Christine Blasey Ford testified before the Senate Judiciary Committee that Kavanaugh had sexually assaulted her when the two were in high school in the 1980s, Trump said he found her testimony “very compelling” and called her “a very credible witness.” Sometime between then and Tuesday, he seems to have changed his mind, mocking Ford for being unable to remember details about the night in question. Trump appears to have decided Ford is a liar, one of the women making it “difficult” for men in America today.

Stephens doesn’t go that far. He just calls Ford’s claims “largely uncorroborated,” adding that Ramirez’s and Swetnick’s allegations are “uncorroborated” as well. “Uncorroborated plus uncorroborated plus largely uncorroborated is not the accumulation of questions, much less of evidence,” he writes. “It is the duplication of hearsay.”

His argument here is that statements by other women that Kavanaugh committed sexual misconduct cannot be used to corroborate Ford’s account. Women’s memory of their own lives, in this framing, is not evidence. It is hearsay.

Stephens also takes liberals to task for arguing that false rape claims are rare. “False allegations of rape, while relatively rare, are at least five times as common as false accusations of other types of crime, according to academic literature,” he writes.

He links to a 2017 study by André De Zutter, Robert Horselenberg, and Peter J. van Koppen, published in the Journal of Forensic Psychology. The study found that 5.55 percent of rape allegations were false or baseless. That’s significantly higher than the combined rate of false allegations for all crimes studied: 1.16 percent. But it’s not the highest rate for any crime, according to the study authors — they found that 5.78 percent of robbery allegations were false. False murder allegations were also more common than the average for all crimes, at 3.3 percent.

It’s worth noting that measuring false allegations presents methodological problems; just because no one was convicted doesn’t mean a crime didn’t happen. To be counted as false by De Zutter and his co-authors, a crime would have to be categorized by law enforcement as “unfounded,” meaning authorities determined it didn’t happen. As the authors note, it’s impossible to know for certain if law enforcement agencies always categorize crimes correctly.

Perhaps more important than the comparisons between these numbers is the fact that they are all very low. There’s no evidence to suggest that false rape claims (or false murder claims, or false robbery claims) are common. But you wouldn’t know that from the way Stephens, Trump, and others talk about rape.

If Christine Ford had accused Brett Kavanaugh of robbing her house, no one would have held up the prevalence of false robbery allegations as a reason to disbelieve her. “False robbery allegations” aren’t even a topic of public conversation, even though, at least according to De Zutter et al, they’re more common than false rape allegations.

But because Ford is talking about sexual assault, she’s decried as an evil woman leaving a man’s life “in tatters” — or, at best, a pawn in a scheme by Democrats to torpedo Trump’s Supreme Court nominee. Stephens deplores Trump’s mockery of Ford, but then praises the president for standing up to the Democrats’ “sly moral bullying” of Kavanaugh, calling him “a big fat hammer fending off a razor-sharp dagger.”

It’s significant that Trump, Stephens, and McConnell all made their comments about Ford and her supporters before the FBI investigation into her allegations was complete. That investigation lasted less than a week and didn’t include an interview with Ford herself, but Trump and others couldn’t even wait until this cursory inquiry was over before trashing Ford and those who believe her.

In recent days, defenders of Kavanaugh have talked a lot about due process, about the right of the accused to be presumed innocent until proven guilty. They’ve behaved as though Kavanaugh were being sent to prison with no evidence, even though he’s not on trial. In fact, it’s Ford who has been presumed guilty, called “evil” by the president of the United States simply because she dared accuse a man of assault.

What she faces is a more public version of what too many women face when they report sexual misconduct: Far from being unquestioningly believed, they’re frequently treated as liars by default. Look at Anita Hill, called “a little bit nutty and a little bit slutty” and accused of suffering from “erotomania.” Look at the women who reported assault by Bill Cosby, painted as “con artists,” climbers, and bad role models. Look at the women who have accused Trump of sexual misconduct, whom he’s accused of making up lies to destroy his campaign.

When a person — especially a woman — comes forward about sexual misconduct, even in the era of #MeToo, she finds herself questioned just as much as the person she’s accusing. What was she wearing? Why did she go to that hotel room? What does she have to gain? At least in the court of public opinion, she’s the one on trial.

Sexual misconduct allegations can ruin the lives of the accusers

In his column, Stephens argues that accusations of sexual assault are more harmful to the accused than accusations of other types of crimes. He quotes a comment made by a friend: “I’d rather be accused of murder than of sexual assault.”

“I feel the same way,” Stephens writes. “One can think of excuses for killing a man; none for assaulting a woman.”

He also writes that a false sexual assault allegation “inflicts psychic, familial, reputational and professional harms that can last a lifetime.”

It’s certainly true that false allegations of sexual misconduct can cause harm. As Vox’s P.R. Lockhart has noted, for many decades of American history, “an allegation of sexual assault or harassment was enough to cost a man his life” if that man was black.

But for many of the powerful men accused of sexual misconduct as part of #MeToo, multiple allegations have meant little more than a temporary retreat from the spotlight. Just look at Louis C.K., performing again just months after admitting to masturbating in front of women without their consent. Or Charlie Rose, invited to hobnob with billionaires in Sun Valley, Idaho, only six months after multiple women accused him of harassment.

Certainly, Kavanaugh has suffered as a result of the allegations against him — he, like Ford, has reportedly received death threats. But his life is hardly “in tatters.” In fact, his confirmation to the Supreme Court looks increasingly likely.

None of this is to excuse false rape allegations. It’s just to say that the world Trump and others claim to see, a world in which men are justifiably terrified of the power of women, is a fantasy.

In the real world, women still struggle to be believed when they come forward about sexual assault. They are doubted, smeared, and shamed in a way that would seem bizarre if they were coming forward to report any other crime. They face threats, abuse, and harassment. If there’s something unique about sexual assault among all other crimes, it’s the incredible personal risk people take on when they choose to report the crime — the risk that they, and not the accused, will be seen as the guilty one.