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sexual assault

Some Lawyerly Advice for Those Crying #HimToo

#himtoo

Amidst the heated debate surrounding the confirmation of Brett Kavanaugh to the Supreme Court, the trending #HimToo is sounding the alarm that allegations of sexual assault could derail the lives of any and all men. “No man is safe” the meme grimly warns.

Keep in mind that Kavanaugh’s hearing isn’t in the context of criminal proceedings, where a defendant is absolutely entitled to a rigorous presumption of innocence. Rather, this is an extremely high-profile job interview for a lifetime Supreme Court appointment. A nominee must establish that he possesses the requisite fitness and character for this esteemed distinction, a burden all the more appropriate when there is credible derogatory evidence suggesting that he is a bad hombre (or at least an unrepentant one).

#HimToo supporters disagree, viewing the allegations either as youthful indiscretions and vestiges of the 1980s, or, in any regard, as incapable of overcoming a seemingly insurmountable presumption of innocence to which they believe Kavanaugh is entitled. (Side note: My clients who are immigrants facing deportation will be thrilled to learn that a person in any proceeding is entitled to such a strong presumption of innocence and such generous grace! [Disclaimer: not true.])

Some #HimToo concerns are not without merit. As a “female assistant” — apparently Sen. Mitch McConnell’s term for lawyers who happen to be women — myself, I appreciate the significant difficulty of proving a negative (including not committing an offense and absence of consent) and important concerns about insufficient or non-contemporaneous evidence. Towards that end, an investigation, testimony from Julie Swetnick and related witnesses knowledgeable about the alleged gang rape trains, subpoenaing friend and alleged witness Mark Judge, and putting forth Kavanaugh’s rebuttal witnesses and good moral character evidence are entirely appropriate. The stakes are for one of our nation’s highest honors.

As for the broader concerns about the future and freedom of mankind… Well, statistically speaking, men generally have little to fear as the vast majority of actual assaults go unreported, and false accusations are extremely rare. Still, as a woman, I happen to know some easy, common-sense safety tips for our nation’s young men to help protect them from false accusations:

• Don’t go to parties, clubs, or other situations involving both alcohol and women. You’re just exposing yourself to potential hazards.

• If you do go, don’t get drunk! Keep your wits about you so your intentions don’t get misconstrued, leading to false allegations. Also, alcohol or drugs impair your ability to remember details — exact time, date, address, etc. — to defend against false claims.

• How well do you know your “friends?” It’s scary to think about, but the accusations could be leveled by an acquaintance you thought you knew who suddenly turns on you.

• Speaking of which, don’t go to an isolated place with a girl or woman you can’t fully trust not to make stuff up. Safer to stick to well-lit public spaces.

• Travel in a group, including with female friends, to protect you as credible witnesses. And return the favor: don’t let your brosky go off alone with some shady lady liar!

• Be aware of your surroundings. If it’s dark out or you’re staring at your phone, you could bump into a girl and have her cry assault. Be on alert. If you’re sans witnesses and uneasy, consider asking a security guard to escort you. Also, be sure to check around the car carefully before getting in.

• If a woman so much as insinuates an accusation, run away in a zigzag pattern! “Z” patterns are unique and will be memorable to onlookers who can confirm that you did not touch her and ran far away in a zigzag.

Remember: Repeat these and other precautions ad nauseum when traveling alone, in social gatherings, and in your daily life. (Note: Though fun and practical, these tips are not guaranteed to keep you safe.)

Yes, I realize these kinds of limitations on your freedom — and constant weary vigilance to not have every vulnerability exploited, particularly in your youth — sound like a total drag. And like lamely shifting the burden to you to try to avoid something you aren’t responsible for in the first place. This kind of advice and thinking is pretty preposterous, amirite? Who’d actually put up with that nonsense?

Oh, right: women and girls. People who aren’t automatically entitled to presumptions of security, competency, credibility, or having their life experiences as the norm.

Women and men must all do the very hard work of making sure that our voices are heard and registered, and our humanity and integrity are fully respected. It’s going to take a long time, but our kids can do much better if we really try.

And while we’re at it, can we spread some of this newfound generosity of spirit — namely, concern over mitigating factors and not derailing lives — to less privileged young people accused of far less serious harm than pinning a girl down, trying to remove her clothes, and muffling her screams? Not to beat on dead horseplay here, but the charges are pretty horrific. Can you imagine widespread protestations of “He was just a kid!” and “It’s not fair to hold this against him now!” for a black or brown 17-year-old in these circumstances?

This confirmation process is making all too clear in whose favor the presumptions are consistently cast — and on whose shoulders the burdens are consistently heaped in what is deemed due process. I wish the Senate Judiciary Committee would voluntarily and kindly slow their roll through the investigation, testimony, and facts to get a premature confirmation. I doubt that will happen. But what we do next is up to us. #TheMoreYouKnow.

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