#MeToo may be powered by outrage, but it is a purposeful outrage. The women coming forward and standing together know what they want to change and why. Take Canada: between 2009 and 2014, only one in 10 sexual assault charges resulted in a conviction. And the other 90 per cent? Well, either the accusers were liars, or the justice system failed – catastrophically.
#MeToo is about fixing the system, once and for all – a system that treats accusers as liars, subjects them to brutal questioning, and damages their reputation. An acceptable alternative, as the movement says, must start by believing the accusers.
But what does that mean? Lots of people are confused about this. Do we dispense with due process? Are we setting aside the presumption of innocence? People want to know how a better system will work.
Canadians are especially sensitive to the dilemma. We watched our prime minister impale himself on it. As a progressive and feminist, Justin Trudeau declared his willingness to believe the accusers – to the point of rapidly expelling two caucus members for alleged improprieties, only to find himself ensnared in similar charges from his youth.
But if failed experiments like this one make us cautious about a more “progressive” approach, recent debates, like the one now raging over Ford/Kavanaugh, are more heartening. Generally, experts are not calling on the courts to abandon due process, so much as to double down on it. They want better and more rigorous standards, not weaker ones.
Take consent. Too often it comes down to stereotyping. For example, the “loose woman” might include wearing short skirts, frequenting bars, and flirting with men. If a profile of an accuser can be made to match these criteria, the stereotype is taken as evidence of her character and intentions.
This kind of reasoning has a long history in the jurisprudence and far too many cases still turn on it. But stereotyping has been widely discredited, and not just for sexual assault. Human behavior turns out to be indelibly complex. Divining someone’s character and intentions from a template (stereotype) is not only simplistic, it is offensive.
So, to “believe the accuser” here doesn’t mean suspending due process. It means getting rid of stereotyping. It calls on the courts to raise their standard of proof. Consent should be a process in which both partners play an active role and have mutual responsibilities. Specifically, before initiating sex, an actor should seek verbal agreement –– and in such an exchange, no always means no.
What about the presumption of innocence?
Suppose a woman accuses a man of sexual harassment or assault. Often, there will be no other witnesses, so their testimony will be the principal source of evidence. If their stories disagree, as they likely will, they are usually assumed to cancel one another out – the proverbial “he said/she said.” The accused is therefore presumed innocent.
That’s how Clarence Thomas maneuvered around Anita Hill in 1991. It is how Brett Kavanaugh will hope to prevail over Christine Blasey Ford this week. However, recent research sheds new light on such a defense. It shows how circumstances traditionally thought to discredit an accuser’s testimony can in fact support it.
For example, a sketchy memory of the events around an assault normally casts doubt on the accuser’s testimony. Phenomena like this could form part of an overall psychological profile of victims of sexual assault – much like victims of other psychological traumas.
In this context, a sketchy memory might provide support for an accuser’s story, rather than undermining it. Creating such a profile may not be easy, but there is encouraging evidence that it can be done.
The point is that the more we learn about sexual assault, the more it changes how we view what counts as evidence. By-and-large, this is lending accusers’ testimony a new kind of credibility that can offset the he said/she said problem.
In an op-ed in the New York Times last week, Anita Hill underlines the critical role that a rigorous process and reliable research can play in breaking this deadlock. She calls on the Senate committee investigating the Ford/Kavanaugh case to:
…demonstrate a clear understanding that sexual violence is a social reality to which elected representatives must respond. A fair, neutral and well-thought-out course is the only way to approach Dr. Blasey and Judge Kavanaugh’s forthcoming testimony. The details of what that process would look like should be guided by experts who have devoted their careers to understanding sexual violence…the weight of the government should not be used to destroy the lives of witnesses who are called to testify.
Nevertheless, many Republicans, specifically, and conservatives, generally, fiercely resist the introduction of this kind of evidence and expertise into the courts. It is the thin edge of a much bigger wedge. They see social science – and especially sociology – as the bible of liberal judges, who will use it to justify all manner of “judge-made law.” And that drives them to distraction.
But what is the alternative? Without this kind of learning, conventional wisdom and discredited practices will continue to dominate the system.
And we will be left struggling to explain why so many cases fail to result in a conviction. Does anyone really believe these accusers are all liars?