The fight over Justice Brett Kavanaugh's Supreme Court confirmation exposed fatal flaws in the “Believe the Victim” approach to sexual assault.
That approach is spreading rapidly through the country and is being actively promoted as the basis for deciding campus misconduct complaints as well as criminal cases. As interpreted by too many political advocates, the command to “Believe the Victim” tramples the principles of fairness, justice, and due process which have long inspired the feminist effort to reform rape law and have carried that effort to important victories over more than half a century.
This week, we all saw it in action. Demands to “Believe the Victim” thrust the U.S. Senate, charged with offering advice and consent on a Supreme Court nominee, into the impossible position of deciding fiercely disputed 36-year-old allegations of violent sexual crimes. Simultaneously, senators were told that it would be “woman-hating” to question, or even seriously consider, the obvious gaps of memory, completeness, and logic raised by those making the allegations.
Into this breach stepped Sen. Susan Collins, R-Maine, with a rational, compassionate, fairness-based defense of due process — just the thing that was needed in this highly sensitive political setting. The women’s movement owes Collins its profoundest thanks and gratitude.
As painfully demonstrated by the chaos it produced during the Kavanaugh confirmation process, the “Believe the Victim” mantra flatly contradicts the most fundamental principles of justice, in any public setting whether criminal, civil, or political. It does this in at least three ways, all of them flawed as matters of history, law, and basic fairness.
First, “Believe the Victim” advocates have argued not only that allegations of sexual assault need no corroboration, but that to seek such corroboration is to restore the rape laws of the bad old days, before the nationwide reforms of the 1970s and 1980s. As a matter both of history and practice, their argument is dead wrong.
It is true that before the reforms of the late 20th century, charges of sexual assault were often burdened by special rules, applicable to rape cases but not to other crimes. And those rules made rape cases especially difficult to report, prosecute, and punish. Requirements such as the “fresh complaint” rule, and rules mandating that juries be given special cautionary instructions before deliberating rape cases, were premised on the idea (to paraphrase Matthew Hale) that rape charges were easy to bring but difficult to defend, “though the defendant be never so innocent.”
Among these special rules was the so-called corroboration rule, again creating a special statutory corroboration requirement, applicable to cases of sexual assault but not to other crimes, which raised a bar to prosecutions for rape.
Reformers successfully argued that such rules were unfair to rape complainants, and nearly all states had abolished these targeted rules by the 1990s. But no one — not the most passionate and dedicated of the reformers of that era — believed that rape allegations should be spared the normal evidentiary processes of questioning and discovery, common to all criminal allegations, which are necessary in order for prosecutors to assess each case, for factfinders to understand it, and for defendants to defend against it.
The feminist argument was to bring rape charges into procedural equality with other crimes, not to abolish the process the necessary ingredients for an accurate and fair decision.
In addition, some in the “Believe the Victim” movement would restrict the relevance of the presumption of innocence — the idea that a person charged with wrongdoing is “innocent until proven guilty” — to criminal adjudications only. This gets the truth exactly backwards.
To be sure, the presumption of innocence finds one important expression in the criminal setting. But its basic idea, that the party who accuses must bear the burden of proving the charge, is rooted not in law but in morality. It is exceptionally difficult to prove a negative. And so, as a matter of basic fairness and decency, we require the person who accuses to prove their case against the accused.
Both the case law and the scholarship in this area instantiate key moral principles: that it is unfair to put someone to the task of proving their innocence upon a mere allegation; that this rule applies not only to criminal but also to civil proceedings (albeit under different burdens of proof); and that the resulting presumption should apply in direct proportion to the seriousness of the charges and the harm to the accused of an erroneous decision. That is to say, the graver the allegations and possible harm, the more heavily we should weigh the presumption of innocence and lay the burden of proof upon the accuser.
Finally, and perhaps unintentionally, “Believe the Victim” advocates have pursued their mantra with a single-mindedness which seems unwilling to consider the very real costs to women and sexual assault survivors that could result from their efforts. By inveighing against those who seek to enhance the clarity, completeness, and coherence of sexual assault allegations through normal evidentiary processes, they run the risk of reviving and strengthening some of the very malignant stereotypes about women — that women are too weak to withstand the rigors of public debate and disagreement; that women are ruled by their emotions rather than by reason; and that women cannot be trusted with power because they are unable to think independently or to give objective fairness its due.
The stereotypes that these activists are reviving are the same ones which for so long sustained the special rules that burdened rape prosecutions in our criminal law. Already, in some public commentary about the Kavanaugh confirmation, these invidious stereotypes are raising their ugly heads. It is not too much to ask that such costs be openly considered and discussed before the “Believe the Victim” movement claims to be acting in the name of all women.
In her speech about the Kavanaugh nomination, Sen. Susan Collins stood up for the values of fairness, justice, and due process for which feminist and rape law reformers have fought so hard. Many women agree with those values and with her.
Those who teach, write, and work in this area should view the Kavanaugh confirmation fiasco as a cautionary lesson, and an occasion to reconnect the movement for women’s equality with those values which have been the best friends to women, sexual assault victims, and all the vulnerable.
Cynthia V. Ward is a professor of law at the William and Mary Law School, teaching and writing in the areas of criminal law, sexual violence, and domestic violence.