HE SAID, SHE SAID IS STILL EVIDENCE
This week, our nation will once again watch the spectacle of He Said, She Said. Televisions will show an accomplished professional woman give testimony against a powerful man regarding that man’s sexual harassment or abuse. The country is already debating who they believe and why. Most of which has nothing to do with the two people involved and everything to do with preconceived biases arising out of personal experiences, gender, political positions, and multiple unrelated factors.
Every trial arising out of an incident of sexual harassment and abuse provokes the same biases out of potential jurors that watchers of this week’s spectacle experience. We ask those jurors to set aside their biases (as if that were actually possible) and to make a decision that will have life-changing consequences for both parties. Is it really any wonder why many victims of sexual harassment and abuse choose not to report? Or, if they report, why they choose not to pursue the situation to a verdict?
The evidence in most incidents of sexual harassment and abuse is “he said, she said” evidence. By this we mean that the only evidence in the case is the testimony of the two involved parties. Rarely is there an “eyewitness” other than the parties. Rarely is there any physical evidence. If the matter is pursued at all, it is going to be based on the testimony of the people involved and that’s all. But often, people are very quick to discount the existence of an event simply because it is based on he said, she said evidence. What that actually means is that they are discounting the testimony of the victim because, if all things were even, disputed testimony does not mean that an event did not occur.
FALSE CLAIMS OF SEXUAL ABUSE ARE FEW AND FAR BETWEEN
This “discounting” that occurs is based on people’s fears that victims will make up a story of sexual harassment or abuse. In the news stories about Kavanaugh’s nomination, we’ll hear disbelief that the event happened since there is no other evidence being brought forth. The reality is that the vast majority of claims of sexual harassment or abuse are based on actual events. The incidence of false claims of sexual abuse has been studied multiple times in many different regions. The conclusions are stunningly consistent: between 2-8% of all claims of sexual abuse are found to be false. And many of those are claims brought by someone related to the victim, not the victim herself. Which means that at least 92-98% of the time, if not more, the victim’s story of sexual abuse has been found accurate.
Of course, despite the fact that the statistical odds are in her favor, a victim is often disbelieved. What is also infrequently talked about is that the rates for false allegations of sexual violence are no higher than those reported in other categories of crime. Even so, it’s fair to say that victims of other crimes (such as theft or burglary) are not so routinely treated with suspicion as are the victims of sexual violence.
In the almost 30 years since Anita Hill testified under similar circumstances, has anything really changed? For women, especially those old enough to have watched Hill’s testimony, it may feel a bit depressing because it can feel that nothing really has changed. It may feel that in the He Said, She Said scenario, the “he said” part always wins out. So why should any victim be willing to endure the stress and anxiety of testifying in a public forum about the worst day of her life?
THE VALUE IN WOMEN’S TESTIMONY
It takes an understanding of where we have been and a nuanced view of where we are now, but there have been notable changes in the way that victims of sexual assault and harassment are treated. Anita Hill testified in front of an all-male, all-white Senate about topics, and in detail, that had probably never been addressed before. This time, there are four women on the Judiciary Committee. And the fact that all of the Republican members are male is causing them a great deal of anxiety. So much so that they want to hire a female prosecutor to do the questioning. They are aware that the “optics” of this situation are no longer tenable. That was not even a concern in 1991.
Much of the questioning of Anita Hill was focused on attacking Ms. Hill – stating (not even insinuating) that she had made it up, that she was mentally ill, and that she was living in some sex-crazed fantasy land. This time around, most of the involved politicians are being pretty careful not to attack Ms. Ford’s credibility before she has even testified. If the 2018 Senate engages in the theatrics that the 1991 Senate performed, there will be a well-deserved uproar.
Some experts in the field are beginning to talk about a tipping point in women’s tolerance of sexual harassment and abuse. Each of these incidents – from Hill to Ford and everything that has happened in between – has inched the needle forward. Every victim of sexual abuse or harassment who has been willing to stand forward and to face the questioning involved in testifying has helped make incremental progress.
If you or someone you love has been a victim of sexual abuse or harassment and you want to help move the needle, contact Koller Trial Law for a free consultation.