Our System Is Too Broken to Assess the Sexual Assault Claim Against Kavanaugh

No wonder the accuser wants to stay silent.

Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his confirmation hearing on Capitol Hill on Sept. 6.
Drew Angerer/Getty Images

This, then, was the fatal flaw of #MeToo: We thought that patriarchal systems, based in entrenched power, and supported by others in power, could be brought down by individual, brave women.

Why don’t women come forward? The story now unfolding on Supreme Court nominee Brett Kavanaugh and an unidentified woman who alleges that he sexually assaulted her when they were in high school underscores why. This is what we do know: The woman went to her congresswoman with a complaint about President Donald Trump’s Supreme Court nominee, Judge Brett Kavanaugh, that dated back to high school. The complaint is that he and another boy violently assaulted (but did not rape) her at a party. She put that complaint in a letter, which the congresswoman will not discuss, citing confidentiality. That letter was also sent to Sen. Dianne Feinstein’s office, who promised confidentiality.

In adhering to this promise of confidentiality, Feinstein’s office did not share the letter with other Democrats on the Senate Judiciary Committee and did not question Kavanaugh about the event during his hearings. It was only this week that other Democrats got wind of the letter and began to demand that its contents be shared with them. On Wednesday, the Intercept was the first to report on the controversy, and on Friday morning, Ronan Farrow and Jane Mayer at the New Yorker reported the specifics of the allegations contained in the letter:


In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her. She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand. She was able to free herself.

Feinstein’s team explained its decision to not make the letter public in the following statement:

Senator Feinstein was given information about Judge Kavanaugh through a third party. The Senator took these allegations seriously and believed they should be public. However, the woman in question made it clear she did not want this information to be public. It is critical in matters of sexual misconduct to protect the identity of the victim when they wish to remain anonymous, and the senator did so in this case.

What we can gather from this chain of events is that at some point this summer, the woman changed her mind—as the New Yorker put it, “after the interactions with Eshoo’s and Feinstein’s offices, the woman decided not to speak about the matter publicly.” We can litigate until the end of time whether Senate Democrats should have been given the letter sooner and who was in the best position to evaluate the weight of her claims. The better question is why a woman making claims about a sexual attack would change her mind about levying them. The controversy that has ensued since the Intercept publicized the existence of this letter and its accusation serves as a perfectly coherent argument for why.

Almost anyone who has played any part in the #MeToo movement might say with confidence that the cost of coming forward is crippling. And indeed, as soon as the New Yorker published its story, Kavanaugh defenders were quick to say that the woman, still unnamed, was a drunk and a liar. Had I been asked to advise this woman, who, according to the New Yorker, is already in trauma, and according to CNN has sought medical help for it, I would have told her to stand down. I would have told her that neither politics nor journalism are institutions that can evaluate and adjudicate facts about systems in which powerful men use their power to harm women. I would have told her that she would be risking considerable peril to her personal reputation, even as she would be lauded as a hero. I would have also told her that powerful men have about a three-month rehabilitation period through which they must live, after which they can be swept up once again in the slipstream of their own fame and success. The women of #MeToo, though, are never quite welcome in the slipstream again. And if you closely observe how one of the most intimate and frightening moments of this anonymous woman’s life is currently being tossed around for political gain, I suspect you might come to agree with me.


The real tragedy is that we do not need this woman’s story to understand who the current Supreme Court nominee is. Because here is what we do know about Judge Kavanaugh: We know that he clerked for and had a yearslong close relationship with a serial abuser of women and claims he knew nothing about it. He claims he doesn’t recall being on a hypersexualized and misogynistic email list and claims he didn’t bother to search to determine whether he was. He claims that when the serial abuser of women for whom he clerked was revealed to be a serial abuser of women, he believed the victims and yet called the abuser, because he was worried about the abuser’s mental health. Worrying more about the accused judge than the accusers one claims to believe is the system protecting the system. This is why women don’t come forward.

Here is what we do know about Judge Kavanaugh. We know that he was part of a group of young men who saw fit to write a creepy racist and misogynistic email chain—and to pledge to keep it secret. We also know that the “neutral” George W. Bush lawyer who vetted Kavanaugh’s papers (and also represents the disgraced judge for whom Kavanaugh once clerked) deemed one of those emails classified, even though it contained no national security or political secrets. Withholding that email was the system protecting the system. That is why women don’t come forward.


Here is what we do know about Judge Kavanaugh. He had an opportunity to use all these questions around all these periods in his life to say anything at all about men and power and the female victims of that power, and about the systems that protect and reify and rehabilitate men in power, and he said nothing. Worse, he said he believed the victims of that system while still doing nothing to support or credit them. This is why women don’t come forward.

And so, a woman considered coming forward to the Senate Judiciary Committee. We’ve seen this movie before, and it doesn’t end well for her. We do not know who she is, or what her precise claims were, or how credible they might be, or whether she had reported the episode contemporaneously, or whether there were other witnesses. We know nothing. What we do know is that she was promised confidentiality and that reporters are now camped out on her doorstep offering to help her become a hero to the #MeToo movement.

The problem is that demanding that any one woman bear the full professional and social and emotional cost of dismantling the machinery of men in power propping up other men in power is expecting entirely too much. We already know that one victim speaking up isn’t enough. The entire vast apparatus of the institution will be brought to bear against her, and that is the same apparatus that she must report to and hope to be believed by, all while knowing she must continue to work within it. Asking that any one woman do such a thing isn’t just a call for moral heroism. It’s also irrational.


It’s particularly irrational when the man in question is in the process of being confirmed to a Supreme Court seat with political stakes that are beyond high. The system that has gotten Brett Kavanaugh to this point has done so by scrambling powerful former clerks to defend him, and positioning powerful Republican lawyers to classify his emails, and standing together to simultaneously claim that it believes the Kozinski accusers and also believes they are political operatives sent to embarrass him. Why would we think that this is a system into which we could input a complicated allegation of sexual misconduct and get out anything rational or fact-based in return?

In a statement released late Friday, Anita Hill noted that she has seen firsthand what happens when an ostensibly neutral process to adjudicate facts is “weaponized against an accuser,” and she reminds us that nothing about this process treated the woman as anything other than instrumental, and that nothing about this process was “fair” or “neutral.”  When she received a Mirror Award this summer for her reporting on Charlie Rose, my colleague Irin Carmon said this in her speech: “The stories that we have been doing are about a system. The system has lawyers and a good reputation. It has publicists. It has a perfectly reasonable explanation about what happened. It has powerful friends that will ask if it’s really worth ruining the career of a good man based on what one women says, what four women say, what 35 women say. Indeed, the system is sitting in this room. Some more than others. The system is still powerful men getting stories killed that I believe will one day see the light of day.”

The system made certain that whatever this woman had to say, or didn’t have to say, would be evaluated by people with partial information and an agenda, even if she didn’t want to share it in the first place. The system is still sitting in this room. The system kind of is this room. The system keeps asking why women in trauma didn’t come forward earlier or later or publicly or privately or anonymously or with evidence or without evidence. The system is why women don’t talk, and even when they do, why things don’t change.

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