Over the past year, we have witnessed growing evidence of the massive failures of our legal system to deal properly with a rampant system in which powerful men sexually dominate others, especially women.

This post describes the nature, magnitude, and consequences of a long-term history of criminal and civil sexual offenses in the US and how the legal system has contributed to the denial of access to justice, enabling these offenses to be perpetuated.   This post suggests how law professors might use increasing awareness of these problems to ask students to reflect about how the legal system can fix these problems and what individual lawyers might do when representing clients in cases involving sexual offenses.

Massive Sexual Crime Wave

With publicity about gross violence perpetuated by powerful men like Harvey Weinstein, Roger Ailes, and Bill Cosby, among many others, there has been an increasing awareness of how pervasively they have been able to take sexual advantage with impunity.  There have been a stream of stories about such men in virtually all walks of life and of different political persuasions.  After the “dam burst,” with a series of  revelations about prominent men, it might have seemed as if all men “do it,” though that’s obviously not true.

The flow of credible allegations has unleashed a flood of stories by victims at every level of society about a wide variety of offenses committed by men, famous and not.  Most prominent have been the stories of Dr. Christine Blasey Ford and others who accused now-Justice Brett Kavanaugh of committing sexual offenses as a young man and lying now about his behavior back then.

These events have prompted many women to recall and describe offenses that happened to them a long time ago that they told few, if any, people, and often never reported to the police.  Washington Post columnist Monica Hesse wrote a poignant essay about the varied reasons that victims are afraid to tell people how they were harmed: “Dear Dads: Your Daughters Told Me about Their Assaults.  This Is Why They Never Told You.”

These personal stories are reflected in statistics about the problem.  According to the Rape, Abuse & Incest National Network, almost 400,000 Americans are sexually assaulted each year and a sexual assault occurs, on average, more than once every two minutes.  Most victims do not report their assaults.  Here’s an excerpt from the National Institute of Justice website.

The Bureau of Justice Statistics (BJS) reports that the majority of rapes and sexual assaults perpetrated against women and girls in the United States between 1992 and 2000 were not reported to the police.  Only 36 percent of rapes, 34 percent of attempted rapes, and 26 percent of sexual assaults were reported.  Reasons for not reporting assault vary among individuals, but one study identified the following as common:

• Self-blame or guilt.
• Shame, embarrassment, or desire to keep the assault a private matter.
• Humiliation or fear of the perpetrator or other individual’s perceptions.
• Fear of not being believed or of being accused of playing a role in the crime.
• Lack of trust in the criminal justice system.

In the NIJ funded Sexual Assault Among Latinas Study (SALAS), it was found that victims did not commonly seek help from the criminal justice system, but did seek informal sources of help such as family and friends.  However, one third of the women included in the study did not report their victimization to anyone.

Washington Post reporter Andrew Van Dam summarized data about consequences of sexual offenses: “Less than 1% of Rapes Lead to Felony Convictions. At Least 89% of Victims Face Emotional and Physical Consequences.“  This article also stated, “The specter of false accusation looms large in the backlash chronicled by [Philip] Rucker and [Robert] Costa, but a 2009 review of research from around the world, based on credible sources, indicates only between 2 and 8 percent of all sexual assault reports were false.”

To summarize, there has been a massive crime wave for a very long time in which victims  are understandably terrified to report the crimes and virtually all offenders have escaped accountability and legal sanction.  Indeed, for survivors, participating in the legal system itself can become a form of re-victimization.

In a forthcoming book about how practitioners should help clients assess their interests and risks in litigation, Michaela Keet, Heather Heavin, and I describe litigation stress generally and particularly in cases of sexual offenses.  Based on their extensive research, here’s an excerpt from an early draft of the book:

Victims of sexual assault and sexual harassment may use civil litigation to achieve important goals, though the strains of the process can extract significant physical and emotional costs.  The emotional vulnerability of sexual assault and harassment victims can be exacerbated by the anxieties of litigation.  These parties often enter the litigation process with reduced feelings of safety, autonomy, and self-worth.  Many sexual assault victims engage in civil litigation as a response to a crisis, such as a nervous breakdown or suicide attempt.  The ordinary stress of litigation is magnified by the necessity of discussing traumatic events and possibility of facing the assailants in court.  Women who engage in sexual assault litigation often report poorer adjustment at work and at home.

Sexual harassment litigation may exacerbate or perpetuate symptoms developed as a result of the original harassment.  The physical symptoms related to sexual harassment may include gastrointestinal disturbances, jaw tightness and teeth grinding, nervousness, binge eating, headaches, inability to sleep, tiredness, nausea, loss of appetite, weight loss, and crying spells.  The emotional responses to harassment may include anger, fear, depression, anxiety, irritability, lowered self-esteem, feelings of humiliation and alienation, as well as a sense of helplessness and vulnerability.

Plaintiffs may experience the litigation itself as a “crisis event” and may not have the psychological and emotional resources or skills to manage it.  Because parties are coping with the original harassment, they may be ill-equipped to take on the added burden of litigation stress.  Participation in sexual harassment litigation is associated with higher levels of PTSD symptoms, as well as lower levels of life satisfaction.  Women currently undergoing sexual harassment litigation more often exhibit demoralization, anxious arousal, fear, and self-blame.

Considering the huge risks of litigation (including many risks not listed above), it is not surprising that many victims learn to bury and repress memories of the crimes.

Our legal system enables offenders to get off without punishment or even publicity.  Powerful men who commit these crimes use lawyers to draft binding pre-dispute arbitration clauses and non-disclosure agreements to muzzle the victims.  Typically, the offenders are rich and powerful and the victims are poor and weak, so they are easily intimidated.  In many of the recent cases, offenders have lost their employment and suffered damage to their reputations, but almost all have gotten off without criminal punishment and have retained their wealth.  Because many of the acts occurred long ago, they are barred by statutes of limitations.  In any case, it would be difficult to clearly prove many of these cases because the evidence is stale and witnesses may not be available or would be afraid to testify truthfully.  And most victims think that the risks of engaging the legal system would far outweigh the potential benefits.

The Damage Wrought by the Kavanaugh Confirmation Process

The process used to investigate the allegations against now-Justice Kavanaugh demonstrates and perpetuates the problems I just described.  Although it was a legislative, rather than litigation, process, supporters of Justice Kavanaugh created a false narrative using litigation concepts.  This not only completely discredited the process in his situation, but it also spread false ideas about the legal framework for handling allegations of sexual offenses.

Of course, people will read the preceding paragraph with our increasingly polarized partisan biases.  As you read the following analysis, try using the de-biasing technique of perspective-taking – what we often call role reversals.  If the Democrats were in power and used the same approach as the White House and Congress did in this situation, would your conclusion differ?  Would the Republicans complain as much or as more as the Democrats have – or would they consider the process to have been fair and legitimate?

Justice Kavanaugh and his supporters portrayed him as a victim of false accusations and a political conspiracy.  This is a remarkable narrative considering that he was credibly accused as a serious offender who falsely denied the claims.  Justice Kavanaugh’s defenders falsely claimed that there was no corroborating evidence.  They imply that the only relevant charge is whether he assaulted Dr. Blasey Ford and that corroboration is limited to eye-witness testimony.  In fact, there is a serious issue whether Justice Kavanaugh made false statements under oath at his confirmation hearing, and she provided numerous sworn statements of people who she had told in the past about these events, which is a form of corroboration.  The Kavanaugh defenders also imply that these allegations of sexual assault would be insufficient without corroboration, which is not necessarily true.

Part of the deception was caused by the misleading narrative that this process was like a criminal trial in which the accusers had the burden of proving Justice Kavanaugh’s guilt beyond a reasonable doubt.  In fact, it was a legislative proceeding to determine his fitness to be confirmed under the Senate’s Constitutional advise and consent responsibility.  Framed that way, the standard might be whether there would be sufficient doubt to deny the confirmation, which is not an entitlement of the president or nominee.  In other words, the proponents of the nomination reasonably should have the burden of proof beyond a reasonable doubt – the exact opposite of what Justice Kavanaugh’s supporters claimed.  In my view, even if there wasn’t certainty that the allegations against him were true, if there were reasonable doubts about his truthfulness or fitness, it would be wrong to confirm him.

If Justice Kavanaugh and his supporters really wanted to establish the truth and restore his reputation, they would have insisted on a thorough independent investigation.  The Judiciary Committee hearing and FBI supplemental investigation obviously were designed to be inadequate so that they could be used to justify the decision to confirm him.  The Republicans’ bad faith is demonstrated by their determination to plow through Justice Kavanaugh’s nomination in a rush, without necessary investigation, after having decided not to even consider President Obama’s nomination of Judge Merrick Garland.  Moreover, the FBI was instructed not to interview many people who claimed to have relevant evidence.  Obviously, this was not a fair or legitimate process.

Unfortunately, this process sends a signal to victims of sexual offenses that they have good reason to fear talking about or reporting offenses committed against them.  Doing so exposes them to the risk of losing their privacy, dignity, reputation, opportunities, and material resources.  They may be ignored or re-traumatized – and the perpetrators are likely to get off scot free anyway.

On the other hand, these episodes have encouraged many people to reflect on their own experiences of sexual victimization.  This may stimulate demands for improvement and mobilization by survivors (and their supporters) who are furious about their treatment and that of Justice Kavanaugh’s accusers.

A Teaching Moment

Regardless of one’s views about the Kavanaugh situation, it should be clear that there has been a massive, long-standing failure of our legal system to protect victims of sexual offenses and punish the offenders.

Our country needs to radically improve this system.  Of course, this is much easier said than done.  People in power who have benefitted from a system usually do not give up power and agree to change without a struggle.

Putting aside the major practical problem of how to coalesce the political will to adopt and implement changes, it would not be easy to design a new system, considering the complexity of the problems and potentially competing legitimate interests.

Law professors could use this situation to ask students to identify the interests involved and how they should be addressed in designing a fair and legitimate system for encouraging survivors to get protection and compensation and for deterring and punishing sexual offenses.  (For some ideas, see this article listing reforms adopted this year in various sectors of society.)

Law professors can ask students how they would act if they represent someone who had a credible allegation of a sexual offense – or who has been credibly accused of a sexual offense.  For some students, it might be tempting – but naive – to simply advise victims to pursue a legal case or to advise actual perpetrators to admit guilt and accept full responsibility.  Real life is much more complicated than that.  Realistically, what would they do?

When plaintiffs bring such claims, they often end up negotiating confidential settlements with the defendants.  While both parties may want to make confidential settlements, they may be inappropriate in some situations, effectively covering up serious offenses.  When is it appropriate – or not – for lawyers to assist clients in negotiating these agreements?  What if the defendant is a serial offender?  I addressed these questions in this post.

Considering that a significant proportion of our population has been the victim of sexual offenses, it is important to be aware that some students may experience flashbacks or other traumatic reactions when discussing these issues.  Providing advance notice and an opportunity to opt out should be helpful.

Of course, this is a teaching moment for all of us, not just law students.  The coming weeks and months will show what we have (and haven’t) learned.