The woman under the bus: sexual violence and legal liability

“The way that we predict other people’s behaviors, most of the times, is that we ask ourselves, ‘Well, what would I do? What have I done?’ And then we project that onto other people.” -Adam Grant

“I decided to report.” I didn’t know she’d been thinking about it, but I think the recent news emboldened her. She’d been sexually abused on multiple occasions as a child. I don’t know her chances of legal success. She probably has about as much evidence as Dr. Ford. But she doesn’t want to get blamed for the passage of time, and she doesn’t want to be silent either.

As a legal matter, sexual violence is an incredibly complex issue. The law can’t accommodate for perfect justice. It’s not a fine tool, but, rather, a sword with blunt edges and a cumbersome shield. It has to consider myriad interests in the hopes of best accommodating a civil society that must weigh due process, the limitations of evidence, and the dignity of both victims and the accused.

Certainly, we must recognize that false claims of sexual violence occur. The most reputable studies estimate that 2-7% of sexual assault claims are false. In the interests of protecting the innocent accused, the law requires sufficient evidence to prove guilt beyond a reasonable doubt in criminal cases and guilt by a preponderance of the evidence in civil cases. Consider yourself as one of those 2-7% innocent persons: wouldn’t you be grateful for evidentiary requirements? On the other hand, 2-7% is a very small percentage, and these numbers are roughly the same as for those who bring allegations that they have been victims of other crimes, such as theft.

But sexual violence is unique in many ways. Victims of sexual violence tend to hide what happened to them for years. Twenty-five percent of victims who report bring their allegations forward more than 30 years after the event. Victims of sexual violence tend to experience extreme shame, and do what they can to push what they have suffered from their minds. Most victims, more than anything, simply want to forget that anything happened. They certainly don’t want to go in front of strangers to discuss in intimate detail their sexual encounters. To speak a thing is to live it, and they don’t want to re-live the worst moments of their lives. But for the women who come forward, the sacrifice is worth it.

Still, they fear that they won’t be believed. They fear rejection by society. For this reason, reports of sexual violence tend to spike when such violence is uncovered in large swaths by the media. Our society prefers a victim to be one among many. Victims know this. Reports of clerical sexual abuse spiked after the 1985 Father Gauthe case, and again in 2002 following the Boston Globe’s reporting.

Sexual violence is also unique from an evidentiary perspective. The only evidence usually available is circumstantial. And this evidence is limited. DNA evidence is only available to those who report soon after the incident (and for only certain types of sexual violence). And sexual violence almost always occurs in private settings. Perpetrators who plan their violences ensure there will be no bystanders. We know from studies of the Church’s clerical abuse scandal that abusers can be charming men who gain the trust of families and identify victims who will be least likely to come forward.

In my friend’s case, more than a decade has passed since her abuse. It’s had lasting effects on her life, and working to overcome these effects continues to be a grueling process. The horror and shame of her abuse is relived as she sees assertions on social media:

“But he’s a good man, and he would never do that!” “She has no proof!” “She can’t remember every detail!” “Her story is inconsistent at times!” “She doesn’t have all of her dates and times down!” “She just wants to ruin this man!” “Why would she wait all this time to bring this to light, if it really happened?” “No one can corroborate what happened!”

Regardless of the legitimacy of the claims undergirding these assertions, one cannot deny their tenor. When my friend (and other friends who have been victims of sexual violence) read these words, they read them as directed towards themselves. The question that they hear is: if you can’t prove your claims in a court of law, why would you ruin a man’s life by bringing them forward?

I can’t read into the heart of every survivor. Maybe some come forward hoping that this won’t happen to someone else. Maybe they want justice. Maybe they just want the perpetrator to have to look at what they have done, to face the aftermath of their violences, and to look within themselves at the person who committed them.

Perhaps abusers should be faced with such visions. Perhaps survivors deserve to have their transgressors look at what they have done. Perhaps they deserve to remind their abusers of what they themselves have been unable to forget. Many worry about ruining the reputation of the accused, but the victims have had their lives silently torn apart by what they have suffered. Just as the victims, perhaps the perpetrators shouldn’t be allowed to “escape” what they have done.

This doesn’t mean we should be able to send everyone to jail. We do want to protect that 2-7%. But either way, something’s got to give. The legal system, with its rough edges, has to err on one side. Do we maintain and increase protections for those 2-7% innocent while leaving the high burden on the 98-93% true victims? Or do we change the burden for survivors and propose a situation where the threshold for their claims doesn’t seem so callous, while recognizing that innocent accused will have to defend themselves at times? We are forced to ask: who falls under the bus of the American legal system?

Or is it time to re-examine these questions altogether?

Whatever the solution, we should remember that sexual violence is a complex issue, and the law is not equipped to dole out perfect justice. So in circumstances like those between Judge Kavanaugh and Dr. Ford, and between my friend and her abuser, we should be cautious in how seriously we take legal guilt. We should recognize the limitations of the law.

Today, one can argue that Judge Kavanaugh might be guilty of assault but that, for the sake of civil society, we shouldn’t be able to find legal guilt based on the available evidence. Rachel Mitchell is probably right; based on the current evidence, Dr. Ford does not have a legal case against Judge Kavanaugh. And even if Dr. Ford is right about what happened to her, perhaps the current evidence shouldn’t be enough for a case. Maybe we want more than the word of the accuser for a guilty finding. This may mean that the law is utterly worthless in this area, and that sexual violence victims like my friend will never be able to find legal recourse. Their abusers will walk free, and we place their victims under the bus.

But those of us crouching under that bus to see who else is there know that legal innocence isn’t the same thing as historical innocence. And we shouldn’t confuse moral uprightness with a lack of civil liability. For the law, you’re innocent until proven guilty. For victims, you’re guilty if you’re guilty.

For more information on clerical sexual violence, see the John Jay Report.

Chris Damian is a writer, attorney, and business professional living in the Twin Cities. He received his B.A. in Philosophy from the University of Notre Dame and his J.D. and M.A. in Catholic Studies from the University of St. Thomas. He is the author of “I Desired You: Intellectual Journals on Faith and (Homo)sexuality” (volumes I and II). He is also the co-founder of YArespond, a group of Catholic young adults seeking informed and holistic responses to the clergy abuse crisis. In his free time, he enjoys hosting dinner parties and creative writing workshops.