The Brett Kavanaugh hearings were a moment of cultural and political reckoning for the United States. While activists were discouraged by the hearings, they exemplified an outcome that should have been a predictable after decades of social change and increasing partisan polarization were catalyzed by two intense years of Time’s Up t-shirts and “witch hunts” claims: 43% of Americans now believe #MeToo has gone too far, and party affiliation is a far stronger predictor of this attitude than gender (NPR).
Many critics of #MeToo claim that America has lost sight of the principle “innocent until proven guilty,” which has served as the cornerstone of the US criminal justice system since its inception. However, refusing to believe sexual assault claims on this basis blurs the (important) lines between public discourse and legal processes. Furthermore, it betrays a lack of understanding of why rape is one of the most underreported and, in turn, under-prosecuted crimes in the United States.
1 in 5 women and 1 in 71 men in the United States experience rape in their lifetimes (CDC). Despite its prevalence, less than 40% of rapes are reported. (NVSRC). There are many reasons for these low reporting rates, but the circumstances of most rapes are perhaps the most salient and, often, the least well understood. 8 in 10 rapes are perpetrated by an individual known to the victim (NVSRC). “Force” in sexual assaults includes not only physical force, but also coercion through fear and engaging in sexual contact with a person who is unable to consent because they are incapacitated, asleep, or too intoxicated. It is common for victims to have incomplete memories of an assault because trauma affects the brain’s ability to create and store memory. Victims who experience the “freeze” response during an assault often dread the question, “Why not fight or flight?” (NBC).
Considering the circumstances outlined here, it makes sense that reporting rates are low. The US criminal justice system is designed to be defensive. It is a system that favors more guilty parties walking free in order to protect innocent parties from arbitrary conviction rather than more easily convicting guilty parties at the expense of more innocent parties being inappropriately convicted. If a survivor has incomplete memory of an assault and lacks physical evidence (which is common—most crime labs will only analyze DNA evidence collected within 72 hours of a sexual assault, and everything from using the restroom to combing hair can damage that evidence before the rape kit is administered), it is difficult at best to meet the “beyond a reasonable doubt” threshold required for a criminal conviction (RAINN). These considerations are all purely pragmatic. On a more deeply personal level, retraumatization can occur from telling the story of an assault repeatedly and the stigma-rooted responses victims often face upon reporting, such as the belief that women falsely report rape for retaliation or attention (in fact, this myth is unfounded) (Pacific Standard).
With the rise of #MeToo, Americans are being challenged to rethink when, how, and why rape happens. However, the crux of our conflict is more complex than reorienting ourselves in these ways. We as a people are grappling with how to address a widespread injustice that is criminal in scope and that our legal system is ill-equipped to respond to. As the anti-violence movement becomes more popular and publicized, it also becomes more politicized. 20% of women experiencing rape is a moral issue. Whether or not there is sufficient evidence to convict Harvey Weinstein of assault is a legal question. Caught in between the ethical and the procedural, what are we as everyday citizens to do when someone in the media—or someone we know—brings forward a sexual assault allegation?
We believe. Our words in the comments section do not constitute the US criminal justice system. In the face of an injustice as pervasive as sexual violence, building a more just society does not call us to build a society where every interaction and response is structured like a judicial proceeding. Rather, combating sexual violence requires us to respond to survivors’ claims with compassion and empathy, as well as some self-sought education on what rape is, why it is so prevalent, and what the survivor experience is like. Just as we should not structure our hearts like courtrooms, we should not respond to those who say they were assaulted with, “I have to believe the abuser you named is innocent until you can prove beyond a reasonable doubt that he is guilty.” Instead, we believe.
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