Reasonable minds can differ on whether Judge Kavanaugh sexually assaulted Dr. Christine Blasey Ford. Perhaps Judge Kavanaugh is lying, or perhaps he does not remember the incident. Perhaps Dr. Ford is lying, or incorrectly remembers either the identity of the assailant or the severity of the interaction. These events happened over three decades ago, and there is little evidence besides the directly contradictory testimony of both parties, both of whom have significant inconsistencies in their accounts.
Reasonable minds can also differ on whether Judge Kavanaugh displayed such intemperate and partisan behavior that he forsook his duty to appear impartial. Personally, I am more concerned by what may be lies under oath than his understandable anger, but I appreciate those who believe his confirmation would further erode the legitimacy of the judiciary.
Where I think we reached unreasonable levels is in our projection of all of our perceived social ills onto Judge Kavanaugh. Many have assumed that if we confirm Judge Kavanaugh, their own stories of trauma and abuse will be erased. Perhaps this was so when the Senate refused to pause even for an FBI investigation of the allegations of Dr. Ford, but it is not true now. Judge Kavanaugh did not assault us all, and he is an individual who deserves individual consideration. Assuming his anger is entitlement because he is male, or promoting the idea that we should automatically believe all women who charge others with sexual misconduct, simply because so many women are telling the truth, is a recipe for abandonment of our most cherished principles.
Indeed, this process has become so pervaded by identity politics that some are accusing women of being misogynist for championing due process. Students at Harvard have filed Title IX complaints against Judge Kavanaugh, asserting that his presence would create a hostile environment for women, which one Harvard Law professor called “abuse of process” and another called an “implausible claim.”
Women are understandably angry at a country that has ignored their concerns for a long time. There is a tendency to overcompensate when righting wrongs, as reaching the perfect balance of interests is impossible. The solution is not to assume all women are victims, or even that all women wish to be treated as victims. To focus only on the anger and frustration of women denies the voices and sensibilities of many women.
Many women do not walk around in paralyzing fear of being assaulted, even if they do take more precautions than men. Many women are uncomfortable with how easy it is to accuse others of sexual assault, even for ordinary sexual behavior, in an era plagued by sex panic. Many women know how to empathize with victims of sexual assault without losing their critical thinking faculties and ability to analyze evidence, and do not expect others to do so for them.
Many women have not watched Judge Kavanaugh’s confirmation hearings with a blinding rage or uncontrollable sadness, but have watched with an eye towards assessing the claims against him fairly and logically. I have heard plenty of women discuss how unfair it is to hold Judge Kavanaugh responsible for events that occurred so long ago, when he appears to have reformed. These women feel uncomfortable expressing these views, and many preface their remarks with – I know this is unpopular for a woman to say,” or, “I would not say this publicly.”
Mathematically, many women can appreciate that there is evidence that false reports of sexual assault are rare (although perhaps as high as 10%), and that many sexual assaults go unreported. But the fact that so many sexual assaults go unreported actually increases the likelihood that any given report is false. Basic Bayesian probability rules demonstrate that the fewer true reports of sexual assault, the more likely any given report is false. If more women reported, more true reports would increase the likelihood that any given report is true.
We need to create a climate where women feel more comfortable reporting, without converting all trivial incidents of misogyny or boorish behavior into serious sexual misconduct. And we need to create this climate with women expecting that, if they do report a sexual assault, their accounts will be listened to but should be questioned for veracity. This basic assurance of reliability benefits all of us and does not erase the severity of the harm women have experienced. Without it, sexual assaults, like the one alleged against Judge Kavanaugh, will have an asterisk next to them, just as his seat on the bench perhaps will.