Opinion

Please Stop Comparing the Kavanaugh Scandal to Anita Hill

Supreme Court Nominee2018 is becoming a Seurat painting of #MeToo allegations, where every once in a while, we need to step back and remind ourselves what the hell is going on. Clearly, it’s disturbing that instead of discussing our SCOTUS’ nominee’s views on, say, separation of powers, we’re having very real conversations about his memory of holding his hand over a teenage girl’s mouth while trying to rip off her clothes. But stay with me. Before you rush to your junk drawer and dig out your “I Believe Anita Hill” pin in solidarity, let’s just take a minute to regroup.

College professor Dr. Christine Blasey Ford said that a drunken teenage Brett Kavanaugh pushed her into a bedroom, pinned her to a bed, and tried to pull off her clothes, while his friend watched. According to Ford, Kavanaugh put his hand over her mouth to prevent her from screaming, and in that moment, she worried that Kavanaugh “might inadvertently kill [her].” Ford tells the tale of escaping when Mark Judge (Kavanaugh’s friend), jumped on the bed, allowing her to fall and then run from the scene.

I wasn’t here, and I’ve never met either Ford or Kavanaugh; obviously, I have no idea if Dr. Ford’s allegations are factually accurate. However, I do know that they are allegations of criminal sexual assault.

The crime of sexual assault (and I’m generalizing just a little bit here, because sexual assaults are usually prosecuted as state-level crimes for which there are different statutes in every jurisdiction) has two components: (1) a sexual touching; (2) absence of the victim’s consent. “Sexual touching” encompasses any touching on a person’s sexual areas (such as genitals, buttocks, or breasts) as well as touching on a non-sexual area when done for the perpetrator’s sexual gratification. Lack of consent is conclusively established as a matter of law when a victim is a minor, or is incapacitated. For an adult victim of sexual assault, lack of consent can be far more difficult to prove – which is one reason why so many sex offenders never see the inside of a courtroom, much less that of a jail cell.

The criminal codes of every state delineate various degrees of sexual assault, based on the factual underpinnings of each case. Sexual assaults that involve a weapon, for example, would constitute a more serious crime than those that did not; similarly, the frequency, severity, and intimacy of touching would affect the degree of crime charged and the corresponding sentence imposed.

“Sexual Assault” is an umbrella legal term that is used to indicate everything from violent rape to a simple non-consensual grope or kiss. It’s illegal in every jurisdiction, and carries significant criminal penalties including jail time and mandatory sex-offender registration.

This is what Brett Kavanaugh has been accused of doing. The alleged crime took place in Montogmery County, Maryland – a state that has eliminated the statute of limitations for all felony sex crimes, even when the victim took decades to report the crime. The statutes that would be used to prosecute this crime have been around for some time. They haven’t been revised as a result of #MeToo, and they’re not prosecuted differently in 2018 than they were a decade or two ago. The only tangible effect #MeToo has had on the prosecution of sexual assault is that more victims now feel comfortable coming forward.

In sharp contrast, sexual harassment is usually not a criminal offense, but rather, a tort that may or may not be civilly actionable depending on the circumstances and the jurisdiction. That’s not to say, of course, that sexual harassment isn’t a “real” offense, or that victims of harassment haven’t actually suffered. Perhaps the most positive effect of the #MeToo movement is the increased societal awareness that sexual violence comes in many forms – all of which are unacceptable.

Sexual harassment, when actionable, usually requires a plaintiff to prove that his or her harasser engaged in a widespread pattern of illegal behavior. Such facts, along with any damages suffered, can be extremely difficult to prove; when sufficient proof is brought forward, money damages will usually be the nature of compensation. When we’re talking harassment, we’re talking lawsuits and money, not prosecutors and prison. Although assault and harassment can be imagined as two sides of the same depraved coin, they live in two very different legal worlds.

It’s only natural that the potential confirmation of Brett Kavanaugh as Supreme Court justice brings up memories of Clarence Thomas’ narrow confirmation and Professor Anita Hill’s allegations of sexual harassment. As Hill wrote today in a New York Times op-ed, “it’s impossible to miss the parallels between the Kavanaugh confirmation hearing of 2018 and the 1991 confirmation hearing for Justice Clarence Thomas.”

While I get the sentiment, any real equation of the two cases is misplaced. When Anita Hill spoke out, the country was aghast to think that one of our nation’s high jurists might have engaged in widespread inappropriate behavior in his workplace. Hill’s allegations reflected on Thomas’ character and attitudes toward women generally, as well as his proclivities specifically. Given the nature of Hill’s claims, the scrutiny was warranted – even if many believe the outcome unjust.

The Thomas and Hill hearings sought to establish a floor for acceptable judicial conduct; the Kavanaugh hearing is merely running evidence through an existing framework. Anita Hill wrote, “Today, the public expects better from our government than we got in 1991.” Thankfully, she is right – but we don’t need government to be “better” to keep Kavanaugh away from a seat on the Court. Until this week, it went without saying that commission of a violent felony disqualifies a nominee from holding a seat on our highest court. Politics aside, I’d bet Clarence Thomas and every other member of the Court agree now – and agreed in 1991.

In fact, we lived in a world in which violent crimes were considered disqualifiers even at the start of Kavanaugh’s hearing. When Senator Mazie Hirono (D-HI) questioned Kavanaugh about his history, she focused primarily on sexual harassment and on Kavanaugh’s history with former judge Alex Kozinski, who had been accused of harassing multiple women. Conspicuously absent, however, were questions about whether Judge Kavanaugh ever raped, murdered, robbed, or defrauded anyone. I’m guessing that’s because everyone simply assumed he hasn’t.

#MeToo’s greatest success is that it has brought awareness about the widespread abuse of power that exists around us all. An unintended side effect, however, is that #MeToo seems to have downgraded rape. We’d never hear talk of swinging pendulums with regard to multiple accusations of any other violent crimes. But because sex is involved – and because we are all suffering from outrage fatigue, what should be a shocking allegation is lost in the news cycle alongside Soon-Yi Previn’s interview or the Harvey Weinstein video tape.

It is incumbent on the general public to get these distinctions right, especially now. If we cannot, then we certainly can’t expect the first family to figure it out.

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This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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