Some Thoughts on #MeToo and Brett Kavanaugh
Lots of people have said lots of better and smarter things about #metoo, particularly in light of the Brett Kavanaugh confirmation hearings (most recent update here, though this story is evolving at warp speed), than I can. I have never been assaulted, so I cannot speak to the experience. I have, however, noticed a couple of things out there in the discussion that I think are worth commenting on.
1. "Beyond a Reasonable Doubt" and "Innocent Until Proven Guilty." Lawyers, and people who like to sound like lawyers, often try to gaslight people who are concerned about an accusation against someone by saying things like "people are innocent until proven guilty!" and "where is your proof beyond a reasonable doubt?" The idea here, of course, is that you are a bad person for "immediately assuming" that a person is guilty of whatever they are accused of, whereas the speaker is a reasoned and broad-minded and fair person. This is nonsense.
The American criminal system does require that a criminal suspect be found by a jury to be guilty beyond a reasonable doubt. It does this because depriving someone of their freedom is seen as an extreme sanction, only to be employed in circumstances where there is the maximum level of confidence in the conclusion. In going with this maximum standard, the system accepts the fact that a pool of people who actually did the thing they are accused of will be found not guilty, but this is seen as a worthwhile trade-off to reduce the chance that an actually innocent person will be imprisoned.
But "beyond a reasonable doubt" and "innocent until proven guilty" are concepts that are explicitly predicated on criminal proceedings where criminal punishment is on the table. They do not apply in other legal contexts. For example, many readers will likely remember the saga of OJ Simpson from back in the 90s. In the famous criminal trial (i.e. "if the glove don't fit, you must acquit" et al.), Simpson was acquitted; in the follow-on civil trial, he was found liable for the death of his wife and the waiter at the restaurant, and thus subject to civil penalties (i.e. paying money). Most people assessing these divergent outcomes have pointed to the different lawyers involved in both cases, different jury pools, etc. But the biggest difference between a criminal trial and a civil trial is that in a civil trial the standard is "preponderance of the evidence"--do you think there is more evidence that something is true than it is not? So, imagine the same juror sitting on both juries, and coming to the conclusion that there was a 75% chance that OJ killed those people. The proper, by the book outcome in such a case is to vote not guilty in the criminal trial and liable in the civil trial. Seventy-five percent confidence is more than good enough in civil cases, but not good enough in criminal cases.
If "beyond a reasonable doubt" does not apply in the vast majority of legal proceedings, then there is absolutely no reason that you are obligated to apply it to your own private determinations of facts in the world. It is 100% reasonable to conclude, for example, that it is more likely than not that Judge Brett Kavanaugh attempted to rape a 15 year old girl at a party when he was 17. You are under no obligation to apply a heightened standard of proof in your own mind with regard to these accusations, unless you are on a criminal jury with the power to put Kavanaugh in prison at the end of the process--which, by the way, you are not.
Lawyers all know this, so any lawyer that tries to convince you otherwise is trying to manipulate you, to make you feel like you are an unreasonable person that is "jumping to conclusions." Don't let them.
2. Sexual Abuse Allegations are Probably True. Lawyers also like to talk about presumptions--a particular thing is assumed to be true unless proven otherwise. So, let me offer a presumption for your consideration--allegations of sexual abuse and sexual assault made by the person who claims to be abused should be presumed to be true unless shown otherwise, especially where the claims are made against a person of status or authority.
Why? Because every social and legal trend and tide pushes and encourages someone not to make a claim of sexual abuse. Sexual abuse is traumatic, and by making the allegation the person is to at least some degree reliving that trauma, which no one does for laughs. There is a pervasive culture of shame, and shaming, surrounding sexual abuse, and so coming forward with a claim exposes the accuser to further abuse. Sexuality generally is private and a locus of vulnerability, so an accuser is exposing himself or herself in a necessarily intimate way. And there is a long track-record of sexual abuse claims being dismissed or ignored to protect those in power.
As a result of all of those factors, I find it to be highly unlikely that most people would go through all of that in order to bring forth a bogus claim against someone. If you are willing to swim against that powerful tide and make your claim publicly, the overwhelming likelihood is because you are telling your truth about what happened to you. Conversely, if you want to defame someone, there are far easier and less personally damaging ways to do it that than make up a sexual abuse allegation involving yourself.
I think it's important here to distinguish between first party and third party allegations. I don't think that a third party allegation ("Person X assaulted Person Y") has the same inherent credibility as a first party allegation ("Person X assaulted me"), because the person making the allegation is not putting themselves on the line and subjecting themselves to the corresponding blow-back. The third-party accuser doesn't have nearly as much "skin in the game." For example, as of Monday morning as I write this, there are accusations from a lawyer that Kavanaugh participated in repeated group assaults during the time period discussed with regard to the Ford allegations. I'm not saying those allegations are false, it's just that there is less reason to immediately believe a lawyer reporting conduct regarding someone else, and every reason to treat them differently than an allegation from a victim.
Do this mean that no allegations, even no first party allegations, are ever made up? No. That's why it's a presumption--you are always open evidence coming forward to disprove the allegation (such as here, though this is a "third-party" accusation that I was talking about before). Does this mean that people should go to jail as soon as an accusation comes up? No; again, we are not talking about criminal law here, we are talking about the sorts of every day judgments that we make in our private lives, in the workplace, and in other non-criminal contexts.
So, I presume that Judge Brett Kavanaugh assaulted Christine Blasey Ford in 1983, and I think you should, too. I presume every one of the people that have accused a Roman Catholic clergyman of sexual abuse is telling the truth, and I think you should, too. I presume that President Bill Clinton raped Juanita Broaddrick, and I think you should, too. I presume all of the people who accused all of the prominent people of sexual abuse are telling the truth, and I think you should, too. "Believe women" is a feminist slogan, but it is also a logical reaction to the nature of the charges being leveled, understood in their broader context.
3. Teenage Misadventures. Teenagers do dumb stuff, this is true. The question, though, is to what extent does the dumb stuff they do as teenagers provide you insight into the person they are going to become as adults. Some teenage behavior is not really probative of much of anything, and some of it is highly probative.
For example, people who are serial killers or exhibit other extreme forms of sociopathic behavior often had a history in childhood of abusing animals, and thus a history of animal abuse in a younger person is and should be a major red flag going forward. On the opposite extreme, something like driving too recklessly when first put behind the wheel is a function, often, of poor impulse control and a lack of experience with the particular activity--things that improve for most people as they move out of their adolescence and into adulthood. So, reckless driving doesn't really mean much of anything, whereas torturing animals does.
The other factor here is consequences. If a teenager drives recklessly and suffers consequences from that action, they are more likely to learn the error of their ways. But if they suffer no consequences, then there is a high likelihood that they will internalize the idea that the behavior is OK, and less likely to grow out of it. After all, why should they? It has worked fine for them so far.
So, any time you have an allegation of something that happened when someone is a teenager, you should ask yourself (1) what does this say about them going forward?; and (2) were there any consequences as a result of the behavior? With regard to the Kavanaugh stuff, #2 must be answered in the negative. Insofar as the allegations are true, Kavanaugh would have learned the lesson that this sort of behavior has no consequences at all. Thus, what possible reason would there be for him to no do the same thing in the future if the opportunity permitted? What basis would one have for concluding that he changed?
As far as the first one goes, I can imagine a number of scenarios that involve sex that are the functional equivalent of driving your car recklessly, scenarios that involve poor impulse control and a lack of understanding of one's own boundaries and the boundaries of others. But Kavanaugh is accused of holding a woman down and covering her mouth when she tried to scream. He has now been accused of participating in almost ritualistic group sexual abuse. That's not poor impulse control, or a lack of concern for boundaries; that is intentional, deliberate, predatory behavior. That is far closer to killing the animals than it is to driving a bit too fast, and is far more probative of the kind of person he is now than what is being proffered by his supporters.
Finally, let's talk about the role of alcohol--for teenagers but also for everyone else. Intoxication doesn't make you do things you wouldn't want to do absent the alcohol; intoxication causes you to go through with the things that you want to do but stop yourself from doing absent the alcohol. How a person behaves when drunk is highly revealing of who they are, often moreso than their sober behavior which is often tightly controlled. In the context of sexual activity, people drink in order to turn off the control mechanisms that check their own desires. If you go to a bar, get drunk, and then hook up with someone, deep down you wanted to hook up with someone all along and alcohol is the vehicle for making that happen. And if you get drunk and then hold someone down, cover their mouth, and grind on them, then you wanted to do all of those things prior to getting drunk.
Again, don't let yourself get played.
4. Forgiveness. It is critically important to have the proper understanding of forgiveness, because the wrong understanding of forgiveness can become a powerful weapon in the hands of abusive people of all sorts. More specifically, we must always distinguish between genuine forgiveness and emotional blackmail dressed up in the skin of forgiveness.
I continue to believe that the best, and proper, definition of forgiveness is the one offered by James Alison--the experience of recognizing that you are in the wrong, but were held in love through the entirety of the period of your ignorance of your wrong. Forgiveness is thus necessarily about a moment of awareness of one's own misconduct, because that moment of awareness is the moment of forgiveness. If you do not have the moment of awareness, if you do not have that experience of being wrong, then there is no forgiveness to be had. To be forgiven for something that you don't recognize having been wrong is a contradiction in terms.
Likewise, what the person providing forgiveness (or, more accurately, providing the occasion for forgiveness to occur) is doing is simply continuing to love the wrongdoer through the moment of awareness. That's it. "Forgiving someone" is not really about doing something, but instead about not doing something--not cutting off the bonds of love and affection while the other person is (unknowingly) a wrongdoer.
Forgiveness is also not the same thing as a pardon. A pardon is a statement from someone in authority that the wrong in question will not result in any sort of concrete consequences to the wrongdoer. Generally speaking, a person who forgives will also pardon, but that is not necessarily the case. Imagine, for example, that you are in a relationship with an alcoholic or other addict. You love this person, and continue to love them through their disease and all of the behaviors associated with the disease. Thus, you are forgiving them. But you may decide that, for their own health, and for your health, you cannot pardon them unless or until they have reformed their lives, gotten into treatment, become sober, etc. Or even that you cannot have any further contact with them, ever, as the pain is simply too extreme for you to bear. And, similarly, some other authority may decide that the conduct in question is such that the addict cannot continue to hold a particular job or engage in some particular behavior. None of these choices is the same thing as "refusing to forgive someone," because forgiveness does not require you to sacrifice your mental well-being, or entrust someone with power in a context that you know to be unwise or dangerous.
What does any of this have to do with Kavanaugh? First, by definition, the person who does not acknowledge that he or she did something wrong is not forgiven, and Kavanaugh continues to deny that anything happened. Whether or not the people around Kavanaugh, which in this context includes everyone who is observing the story, have the proper posture of forgiveness toward Kavanaugh is basically irrelevant, because he does not provide any indication of that he would be willing to accept that he was wrong. Turning around and blaming outsiders for not being forgiving people is gaslighting.
Second, even if he were to exhibit signs of having experienced forgiveness, there is absolutely no contradiction between participating in Kavanaugh's forgiveness and believing that his actions disqualify him from being a Supreme Court Justice. That's not forgiveness--that's asking for/demanding a pardon. It is perfectly legitimate to decide that there are certain actions that disqualify someone from a position of enormous power and trust. More specifically, it is completely legitimate for women to decide that a person who has done what Kavanaugh is accused of doing to be unfit to judge matters related to women and sexuality. That's a prudential decision, and people can come to different conclusions, but I think it is nothing per se improper about saying that people who have engaged in the behavior Kavanaugh is accused of engaging in is categorically unfit for positions like this.
Thus, saying that people, especially women, are obligated to "forgive" Kavanaugh and people like Kavanaugh, and therefore not oppose his elevation to the Supreme Court, out of Christian principle are engaged in double gaslighting. They are gaslighting people by framing forgiveness as something one does to wrongdoer, as opposed to something the wrongdoer receives, and thus putting the focus and burden on the third party as opposed to the wrongdoer. And they are confusing forgiveness with pardon, and thus requiring people to forego any sort of prudential judgment about the consequences and circumstances surrounding the acts in question. This is emotional blackmail, not forgiveness.
Gaslightling is bad. Say no to gaslighting.
1. "Beyond a Reasonable Doubt" and "Innocent Until Proven Guilty." Lawyers, and people who like to sound like lawyers, often try to gaslight people who are concerned about an accusation against someone by saying things like "people are innocent until proven guilty!" and "where is your proof beyond a reasonable doubt?" The idea here, of course, is that you are a bad person for "immediately assuming" that a person is guilty of whatever they are accused of, whereas the speaker is a reasoned and broad-minded and fair person. This is nonsense.
The American criminal system does require that a criminal suspect be found by a jury to be guilty beyond a reasonable doubt. It does this because depriving someone of their freedom is seen as an extreme sanction, only to be employed in circumstances where there is the maximum level of confidence in the conclusion. In going with this maximum standard, the system accepts the fact that a pool of people who actually did the thing they are accused of will be found not guilty, but this is seen as a worthwhile trade-off to reduce the chance that an actually innocent person will be imprisoned.
But "beyond a reasonable doubt" and "innocent until proven guilty" are concepts that are explicitly predicated on criminal proceedings where criminal punishment is on the table. They do not apply in other legal contexts. For example, many readers will likely remember the saga of OJ Simpson from back in the 90s. In the famous criminal trial (i.e. "if the glove don't fit, you must acquit" et al.), Simpson was acquitted; in the follow-on civil trial, he was found liable for the death of his wife and the waiter at the restaurant, and thus subject to civil penalties (i.e. paying money). Most people assessing these divergent outcomes have pointed to the different lawyers involved in both cases, different jury pools, etc. But the biggest difference between a criminal trial and a civil trial is that in a civil trial the standard is "preponderance of the evidence"--do you think there is more evidence that something is true than it is not? So, imagine the same juror sitting on both juries, and coming to the conclusion that there was a 75% chance that OJ killed those people. The proper, by the book outcome in such a case is to vote not guilty in the criminal trial and liable in the civil trial. Seventy-five percent confidence is more than good enough in civil cases, but not good enough in criminal cases.
If "beyond a reasonable doubt" does not apply in the vast majority of legal proceedings, then there is absolutely no reason that you are obligated to apply it to your own private determinations of facts in the world. It is 100% reasonable to conclude, for example, that it is more likely than not that Judge Brett Kavanaugh attempted to rape a 15 year old girl at a party when he was 17. You are under no obligation to apply a heightened standard of proof in your own mind with regard to these accusations, unless you are on a criminal jury with the power to put Kavanaugh in prison at the end of the process--which, by the way, you are not.
Lawyers all know this, so any lawyer that tries to convince you otherwise is trying to manipulate you, to make you feel like you are an unreasonable person that is "jumping to conclusions." Don't let them.
2. Sexual Abuse Allegations are Probably True. Lawyers also like to talk about presumptions--a particular thing is assumed to be true unless proven otherwise. So, let me offer a presumption for your consideration--allegations of sexual abuse and sexual assault made by the person who claims to be abused should be presumed to be true unless shown otherwise, especially where the claims are made against a person of status or authority.
Why? Because every social and legal trend and tide pushes and encourages someone not to make a claim of sexual abuse. Sexual abuse is traumatic, and by making the allegation the person is to at least some degree reliving that trauma, which no one does for laughs. There is a pervasive culture of shame, and shaming, surrounding sexual abuse, and so coming forward with a claim exposes the accuser to further abuse. Sexuality generally is private and a locus of vulnerability, so an accuser is exposing himself or herself in a necessarily intimate way. And there is a long track-record of sexual abuse claims being dismissed or ignored to protect those in power.
As a result of all of those factors, I find it to be highly unlikely that most people would go through all of that in order to bring forth a bogus claim against someone. If you are willing to swim against that powerful tide and make your claim publicly, the overwhelming likelihood is because you are telling your truth about what happened to you. Conversely, if you want to defame someone, there are far easier and less personally damaging ways to do it that than make up a sexual abuse allegation involving yourself.
I think it's important here to distinguish between first party and third party allegations. I don't think that a third party allegation ("Person X assaulted Person Y") has the same inherent credibility as a first party allegation ("Person X assaulted me"), because the person making the allegation is not putting themselves on the line and subjecting themselves to the corresponding blow-back. The third-party accuser doesn't have nearly as much "skin in the game." For example, as of Monday morning as I write this, there are accusations from a lawyer that Kavanaugh participated in repeated group assaults during the time period discussed with regard to the Ford allegations. I'm not saying those allegations are false, it's just that there is less reason to immediately believe a lawyer reporting conduct regarding someone else, and every reason to treat them differently than an allegation from a victim.
Do this mean that no allegations, even no first party allegations, are ever made up? No. That's why it's a presumption--you are always open evidence coming forward to disprove the allegation (such as here, though this is a "third-party" accusation that I was talking about before). Does this mean that people should go to jail as soon as an accusation comes up? No; again, we are not talking about criminal law here, we are talking about the sorts of every day judgments that we make in our private lives, in the workplace, and in other non-criminal contexts.
So, I presume that Judge Brett Kavanaugh assaulted Christine Blasey Ford in 1983, and I think you should, too. I presume every one of the people that have accused a Roman Catholic clergyman of sexual abuse is telling the truth, and I think you should, too. I presume that President Bill Clinton raped Juanita Broaddrick, and I think you should, too. I presume all of the people who accused all of the prominent people of sexual abuse are telling the truth, and I think you should, too. "Believe women" is a feminist slogan, but it is also a logical reaction to the nature of the charges being leveled, understood in their broader context.
3. Teenage Misadventures. Teenagers do dumb stuff, this is true. The question, though, is to what extent does the dumb stuff they do as teenagers provide you insight into the person they are going to become as adults. Some teenage behavior is not really probative of much of anything, and some of it is highly probative.
For example, people who are serial killers or exhibit other extreme forms of sociopathic behavior often had a history in childhood of abusing animals, and thus a history of animal abuse in a younger person is and should be a major red flag going forward. On the opposite extreme, something like driving too recklessly when first put behind the wheel is a function, often, of poor impulse control and a lack of experience with the particular activity--things that improve for most people as they move out of their adolescence and into adulthood. So, reckless driving doesn't really mean much of anything, whereas torturing animals does.
The other factor here is consequences. If a teenager drives recklessly and suffers consequences from that action, they are more likely to learn the error of their ways. But if they suffer no consequences, then there is a high likelihood that they will internalize the idea that the behavior is OK, and less likely to grow out of it. After all, why should they? It has worked fine for them so far.
So, any time you have an allegation of something that happened when someone is a teenager, you should ask yourself (1) what does this say about them going forward?; and (2) were there any consequences as a result of the behavior? With regard to the Kavanaugh stuff, #2 must be answered in the negative. Insofar as the allegations are true, Kavanaugh would have learned the lesson that this sort of behavior has no consequences at all. Thus, what possible reason would there be for him to no do the same thing in the future if the opportunity permitted? What basis would one have for concluding that he changed?
As far as the first one goes, I can imagine a number of scenarios that involve sex that are the functional equivalent of driving your car recklessly, scenarios that involve poor impulse control and a lack of understanding of one's own boundaries and the boundaries of others. But Kavanaugh is accused of holding a woman down and covering her mouth when she tried to scream. He has now been accused of participating in almost ritualistic group sexual abuse. That's not poor impulse control, or a lack of concern for boundaries; that is intentional, deliberate, predatory behavior. That is far closer to killing the animals than it is to driving a bit too fast, and is far more probative of the kind of person he is now than what is being proffered by his supporters.
Finally, let's talk about the role of alcohol--for teenagers but also for everyone else. Intoxication doesn't make you do things you wouldn't want to do absent the alcohol; intoxication causes you to go through with the things that you want to do but stop yourself from doing absent the alcohol. How a person behaves when drunk is highly revealing of who they are, often moreso than their sober behavior which is often tightly controlled. In the context of sexual activity, people drink in order to turn off the control mechanisms that check their own desires. If you go to a bar, get drunk, and then hook up with someone, deep down you wanted to hook up with someone all along and alcohol is the vehicle for making that happen. And if you get drunk and then hold someone down, cover their mouth, and grind on them, then you wanted to do all of those things prior to getting drunk.
Again, don't let yourself get played.
4. Forgiveness. It is critically important to have the proper understanding of forgiveness, because the wrong understanding of forgiveness can become a powerful weapon in the hands of abusive people of all sorts. More specifically, we must always distinguish between genuine forgiveness and emotional blackmail dressed up in the skin of forgiveness.
I continue to believe that the best, and proper, definition of forgiveness is the one offered by James Alison--the experience of recognizing that you are in the wrong, but were held in love through the entirety of the period of your ignorance of your wrong. Forgiveness is thus necessarily about a moment of awareness of one's own misconduct, because that moment of awareness is the moment of forgiveness. If you do not have the moment of awareness, if you do not have that experience of being wrong, then there is no forgiveness to be had. To be forgiven for something that you don't recognize having been wrong is a contradiction in terms.
Likewise, what the person providing forgiveness (or, more accurately, providing the occasion for forgiveness to occur) is doing is simply continuing to love the wrongdoer through the moment of awareness. That's it. "Forgiving someone" is not really about doing something, but instead about not doing something--not cutting off the bonds of love and affection while the other person is (unknowingly) a wrongdoer.
Forgiveness is also not the same thing as a pardon. A pardon is a statement from someone in authority that the wrong in question will not result in any sort of concrete consequences to the wrongdoer. Generally speaking, a person who forgives will also pardon, but that is not necessarily the case. Imagine, for example, that you are in a relationship with an alcoholic or other addict. You love this person, and continue to love them through their disease and all of the behaviors associated with the disease. Thus, you are forgiving them. But you may decide that, for their own health, and for your health, you cannot pardon them unless or until they have reformed their lives, gotten into treatment, become sober, etc. Or even that you cannot have any further contact with them, ever, as the pain is simply too extreme for you to bear. And, similarly, some other authority may decide that the conduct in question is such that the addict cannot continue to hold a particular job or engage in some particular behavior. None of these choices is the same thing as "refusing to forgive someone," because forgiveness does not require you to sacrifice your mental well-being, or entrust someone with power in a context that you know to be unwise or dangerous.
What does any of this have to do with Kavanaugh? First, by definition, the person who does not acknowledge that he or she did something wrong is not forgiven, and Kavanaugh continues to deny that anything happened. Whether or not the people around Kavanaugh, which in this context includes everyone who is observing the story, have the proper posture of forgiveness toward Kavanaugh is basically irrelevant, because he does not provide any indication of that he would be willing to accept that he was wrong. Turning around and blaming outsiders for not being forgiving people is gaslighting.
Second, even if he were to exhibit signs of having experienced forgiveness, there is absolutely no contradiction between participating in Kavanaugh's forgiveness and believing that his actions disqualify him from being a Supreme Court Justice. That's not forgiveness--that's asking for/demanding a pardon. It is perfectly legitimate to decide that there are certain actions that disqualify someone from a position of enormous power and trust. More specifically, it is completely legitimate for women to decide that a person who has done what Kavanaugh is accused of doing to be unfit to judge matters related to women and sexuality. That's a prudential decision, and people can come to different conclusions, but I think it is nothing per se improper about saying that people who have engaged in the behavior Kavanaugh is accused of engaging in is categorically unfit for positions like this.
Thus, saying that people, especially women, are obligated to "forgive" Kavanaugh and people like Kavanaugh, and therefore not oppose his elevation to the Supreme Court, out of Christian principle are engaged in double gaslighting. They are gaslighting people by framing forgiveness as something one does to wrongdoer, as opposed to something the wrongdoer receives, and thus putting the focus and burden on the third party as opposed to the wrongdoer. And they are confusing forgiveness with pardon, and thus requiring people to forego any sort of prudential judgment about the consequences and circumstances surrounding the acts in question. This is emotional blackmail, not forgiveness.
Gaslightling is bad. Say no to gaslighting.
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