Kavanaugh Saga Shows the #MeToo Movement at a Crossroads: Three Legal Reforms Needed Now

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Posted in: Criminal Law

The dug-in forces of patriarchy in the United States won out over the victims of sexual assault in the Dr. Christine Blasey Ford–Judge Brett Kavanaugh hearings. If the public and in particular US Republican senators were better educated about the characteristics of trauma and sex assault memories, her obvious credibility would have been bolstered—not questioned. It is common for a victim to not remember the precise address or precise date but at the same time very specific details of the attack itself. When Trump belittled her memory, he was attacking the vast majority of the child sex assault victims in the United States. She was underage and revealed a scenario that far too many of our children have suffered. Moreover, if the public were educated about the ways in which the accused respond to such accusations, Kavanaugh’s angry denials would have reinforced the widespread suspicions that he is guilty of the allegations, not been proof of his purity.

Instead, he displayed the characteristics of DARVO—documented by Professor Jennifer Freyd—where the accused reacts to an accusation with denial, attack to discredit the victim, and an attempt to switch the roles of victim and offender. According to Joyanna Silberg, PhD, President of the Leadership Council on Child Abuse & Interpersonal Violence, “The purpose of the DARVO defense strategy is to gain sympathy by claiming to be the true victim and to derail any investigation of the original allegations.” In the end, the president took the defense to the nth degree when he declared Kavanaugh “innocent” and repeatedly bemoaned the difficulties faced by him and his family.

There has not been one word of sympathy for what Ford endured since Trump started his innocence tirade for Kavanaugh. I hope that survivors know there is an army of advocates who see the rank cruelty in what the Republicans did to Ford and by extension to every victim. This could have been a moment of affirmation for the millions of sex assault victims in the United States. Instead, it reinforced the social lies and patriarchy that keep child abusers and sexual assault in motion and that cover up the misdeeds of powerful men.

The Brett Kavanaugh confirmation process proves what was already becoming plain: the #MeToo movement stands at a crossroads, with one fork leading to empowerment of sex assault victims and the other circling back to their silent, second-class status. If nothing else, this chapter in history proves that it is simply not enough for victims to be able to tell their stories. Until the legal system makes needed changes, the victims of sex assault will be treated badly.

The Kavanaugh saga and the grand jury-documented history of sex abuse in Pennsylvania—where nine grand juries have issued reports on every Catholic diocese—Penn State, the Solebury School, and public schools show that survivors simply telling their stories is not enough. For the victims of the dioceses, the Solebury School, and the public schools in Pennsylvania, there was precious little justice; almost all of the victims were outside the criminal and civil statutes of limitation. Pennsylvania prosecutors have documented the problem to be sure, but they have been hampered by criminal SOLs that are shorter than those in most of the country, and the embarrassingly short civil SOL of age 30 has kept most survivors locked out of the courthouse.

Three legal reforms are needed to level the playing field between victims of sex assault and the patriarchal culture that triumphed with Kavanaugh and so far has won in the battle for child sex abuse statutes of limitations reform in PA. The #MeToo movement needs to get behind these legal reforms if it is going to lead to real justice.

First, the criminal and civil statutes of limitations need to be fixed. Both should be eliminated as Delaware did. SB261 in Pennsylvania would do the former while lengthening the latter to age 50. That is a step in the right direction. In addition, lawmakers need to play catch up for all of the victims they have left behind by passing a two-year window during which even those with expired civil SOLs can file a lawsuit—just as Delaware did. That window would shift the heavy cost of the abuse from the victims’ shoulders to the people and institutions who caused it. It would also identify the hidden predators who have been enjoying their anonymity while the victims are blocked from justice.

Second, the defamation laws need work. Right now, when a perpetrator denies the allegations, in effect calling the victim a liar, the only recourse the victim has is to hire an attorney to file for defamation, but that is an expensive proposition, so most are required to just let the denials go. Or when the perpetrator files a defamation lawsuit as Bill Cosby did against some of his accusers, a victim is forced to hire an attorney to defend herself. The cost of the attorney gets in the way of truth in either scenario. Instead, as I suggested here, in cases of sex assault, the victim should be awarded attorney’s fees and treble damages when she proves the assault in court.

Third, fix the mandated reporting laws so those with knowledge of sex assault share it with the authorities. This means making clergy, coaches, private schools, and universities mandated reporters along with public school teachers and healthcare providers, and increasing penalties and enforcement. Imagine the world in which the non-abusing priests and coaches were reporting suspected sex abuse. Or the world in which children are properly educated about sex assault and Dr. Ford confided in her private school teacher who then told the police.

The #MeToo movement has work to do, and it isn’t simply uncovering more untold stories. It’s fighting for justice for the victims who needed a #MeToo moment in the first place.