I recently read a Q & A with Anita Hill in the New York Times and she made a point that has been bothering me ever since I read about the Trump administration’s new rules governing sexual assault claims on campus. She was asked about the backlash from the #metoo movement and noted “[t]here are very few problems where we make rules based on the possibility of false accusations. If we paid more attention to that in this society, we wouldn’t have the death penalty.”
That struck a chord with me. The recent Kavanaugh hearings reflected a widely held presumption that sexual assault and sexual harassment victims are lying. Despite all the evidence to the contrary, society is more willing to believe a woman is a “nut or slut” than that a man would force himself on her. In reality, official statistics put false allegations of sexual assault at between 2% and 10%, a number that is far outstripped by the estimated 70% of assaults that are never reported.
A disproportionate burden of proof
Which brings me back to the new rules on sexual assaults on campus. Schools could require victims to prove they have been assaulted with “clear and convincing” evidence. This is a higher burden of proof than the previous standard “preponderance of evidence”—a standard used in most civil cases. Remember, we are not talking about a criminal conviction, we are talking about school discipline. Now a student facing expulsion from school for sexual assault has more protection than a negligent driver who may have killed someone, and far more protection than an employee who can be fired for any (legal) reason.
Stop protecting men and solve the problem
Why put such a heavy burden of proof on a coed alleging sexual assault? The answer is that society is still more focused on protecting men than solving the problem. According to Anita Hill, “[w]e are just wedded to a culture of accepting this behavior, not being willing to make the tough calls and stick with them.” To maintain the culture of male dominance, women have to be painted as likely to lie about sexual encounters. That is the painful truth we learned when Anita Hill testified in 1991. Unfortunately, it was still true 27 years later when Christine Blasey Ford appeared before the Senate Judiciary Committee in 2018.
Anita Hill remains hopeful because she’s seen how far this country has come since her grandfather was a slave. The first step is to start believing women. Women who allege sexual harassment and assault are statistically unlikely to lie about it. Yet we go to great lengths to make sure men are not penalized by false accusations, and in the process end up silencing women.
Jean Boler is an experienced lawyer who has worked tirelessly for equity and fairness both as counsel for individuals and for organizations. As a plaintiffs’ employment lawyer, Ms. Boler has used class action litigation to expose discriminatory patterns in workplaces. As counsel to the City of Seattle, Ms. Boler was at the forefront of helping a willing City government embrace systemic change in its police department. Ms. Boler has a unique ability to turn conflict into an avenue for improvement, whether through advice, negotiation or litigation. Ms. Boler works in all areas of employment law as well as in the area of police accountability. She is a trained mediator.