Kav

Can Good People Do Bad Things?

Note: this piece is adapted from my new essay in the Southwestern Law Review, available here.

We are often unable to see people in our lives as the monsters who come to mind when we think about sexual violence. We simply do not think that they would be capable of such acts, as they certainly have never seemed capable to us.

Given that most sexual violence is attributable to the people in our lives, those who we trust and sometimes love and depend on, is arguably one reason why many survivors aren’t believed and in turn, one reason why many don’t report. It’s why those who do are sometimes shunned by their community: because people who commit acts of rape and sexual assault are often well-liked, clean-cut, upstanding members of the community. They don’t present as monsters, and indeed can often present themselves as being guardians of sexual purity themselves.

They are not the image that comes to mind when we think of “sex offender” – and this incompatibility often lapses into a discourse that’s centered on rape myths, shame, and an understanding of sexual harm that is out of step with reality. Stated differently: he couldn’t be a rapist, because he isn’t a monster, thus she must be a liar.

This phenomenon also works on, our internal lives and how we reckon with our own conduct. Because the vast majority of people who are arrested for acts of sexual harm are “not sex offenders,” but nearly everyone hates “sex offenders,” this appears to be the product of a not insignificant degree of collective and individual cognitive dissonance. We view anyone who would cause sexual harm to another as a monster, and no one believes themselves to be a monster.

This sort of a dissonance was on display in Supreme Court Justice Brett Kavanaugh’s confirmation hearing. Justice Kavanaugh was rumored to be on President Trump’s shortlist of Supreme Court candidates in 2018. Dr. Christine Ford, a former acquaintance of Kavanaugh’s, then wrote letters to the media and to Congresswomen Anna Eshoo detailing allegations that, in the summer of 1982 while Ford and Kavanaugh were both high school students, Kavanaugh drunkenly sexually assaulted her. Ford had independently passed a polygraph, and after Kavanaugh’s nomination, Ford’s allegations were made public. Ford wound up testifying about the alleged assault, and noted that she did not tell anyone of the assault until 2012, when she disclosed it during a therapy session with her husband.

One of the more (unfortunately) memorable aspects of the hearing was Kavanaugh’s response, which could be described as indignant. He adamantly denied even the possibility that what Ford alleged transpired. That she was making it up. A liar. Kavanaugh, in his own defense, submitted statements from many women who had known him, attesting to his character.

Much of the public discourse fell along this binary – either that Kavanaugh was a monster, or that Ford was a liar. This left little room for a more nuanced discussion of some important aspects of Ford’s allegation and Kavanaugh’s response. Ultimately, Kavanaugh was confirmed, demonstrating the efficacy of his chosen tactic, Ford’s testimony notwithstanding.

There was little room to explore what I see as a third, perhaps likely possibility given the testimony of both Kavanaugh and Ford: that Kavanaugh did assault Ford, but that he does not remember it happening. For Kavanaugh, in light of the evidence surrounding his prior drinking habits, it seems plausible that for him it was just another summer night of partying. But that for Ford, it was something far different.

Kavanaugh’s own calendar seems to corroborate that there was indeed a party during the same time-frame that Ford alleged, and that Ford was able to accurately identify others in attendance at this party (as relayed by Kavanaugh’s calendar). Despite Kavanaugh’s janus-faced testimony that he “sometimes had too many beers” but “never blacked out,” (seemingly as to preclude the possibility of an unremembered assault), those who knew Kavanaugh indicated that they did not find this position to be a credible one.

Kavanaugh could not and did not allow for this to be a possibility here, however, despite it seeming to be the most obvious and humane explanation. Even assuming that reading is the correct one, does it follow that he should suffer the consequences for the rest of his life? The United States does place juveniles on public sex offense registries for acts not dissimilar from what Ford alleged. The law certainly does treat some teenagers and young people who make mistakes much differently than others, but whether that is fair or good is another matter entirely. Does the answer to that inquiry that change when – as here – there has been no accountability for that conduct? And what would accountability look like here? Would it mean that he shouldn’t be confirmed? 

The point is not necessarily to suggest any answers to any of these questions, but more that we lack a vocabulary to even have that conversation at anything approaching a national level. The most probable (in my opinion) and humane response would have been to allow for its possibility, could not say with certainty that what Ford alleged did not happen, and that if it did happen, that he wanted to find a way to make amends to her. But if that was the response, as opposed to casting Ford as little more than a partisan operative, would he have been confirmed?

Playing on familiar and deeply-entrenched myths and tropes about sexual violence worked out for Kavanaugh, though worked to the detriment of something more nuanced, and humane, and that comports with the reality of almost all sexual harm: that people can cause harm in one instance, and at the same time, live exemplary lives in other respects. It is at least one answer to the question of how Kavanaugh could have scores women attesting to his character on one side, and Ford testifying on the other, and how they could both be telling the truth.