I found the confirmation hearings of now Justice Kavanaugh deeply disturbing. I have ideas for preventing a replay.
First, secret keeping doesn’t work. For too long girls/women have suffered in silence with their secret while boys/men move along often without any sense of guilt about their “fun”. When the victim/survivor keeps her secret, the perpetrator remains in control. An important step for the victim to regain control is to tell her story. Then the next step … she needs to be heard. Dr. Blasey Ford spoke, but her distracters did not hear her. They questioned her credibility. She was criticized for her years of silence, and her lack of memory of details. What I learned from this is that the victim/survivor must be prepared to speak, and that this preparation must start well before it occurs.
Second, I think that we need to recognize the inevitable that girls/women will be confronted by aggressive sexual acting out. The #MeToo movement has revealed how extensive sexual abuse is. Sexual abuse is not exclusively an adult experience. All girls and women need to be prepared to act after an unwanted sexual encounter.
Third, sexual assault allegations are often dismissed as “she says”, “he says”. And it seems that no matter what she says, if his denial is loud and unwavering, her story will be dismissed. So is there a way out of the “she says”, “he says” impasse? I propose that what “she says” can be strengthened by looking at and using exceptions to the rule against the admission of hearsay evidence. The exceptions are based on the belief that these are situations in which hearsay is viewed as reliable.
So what is hearsay? The rules of evidence define hearsay as a statement made out of court that is offered as evidence to prove the truth of the matter asserted. Jill tells me that Jack sexually assaulted her. I testify that Jill told me Jack sexually assaulted her to prove that Jack sexually assaulted Jill. My statement is hearsay and not allowed as proof that Jack sexually assaulted Jill.
The three exceptions that I view as the most helpful in dealing with sexual assault are: (1) recorded recollection, (2) excited utterance and (3) present sense impression.
Recorded Recollection is a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately (Fed. R. Evid. 803(5)). The recording must be made when the matter was fresh in the witness’s memory and must reflect that knowledge correctly.
Based on this exception I recommend that a victim of sexual assault write down immediately as many details as possible regarding the who, what, where, and when of the event. Recorded recollection is useful in filling in details that psychologists tell us a victim of sexual assault will forget such as location of the assault, date, time, description of the room, etc. The memorandum can also assist a potential investigator.
An Excited Utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition (Fed. R. Evid. 803(2). We can all agree that a sexual assault is a startling event. The raw emotion that a victim of a sexual assault expresses to another would be admissible evidence. Where questions of reliability may still develop is during the time lapse between the event and the utterance. The person making the utterance must still be in the state of surprise or shock. I would propose that anyone who can become the victim of a sexual assault (that is every girl/woman) have a buddy she can contact immediately to talk about what took place. Because time is of the essence, availability of the buddy is everything in making this choice. The buddy’s observations are acceptable as evidence.
Then Existing Mental, Emotional, or Physical Condition is a statement of the declarant’s then existing intent, plan, motive, design, mental feeling, pain, or bodily health. (Fed. R. Evid. 803(3)). In general, the statement of a memory or belief is inadmissible. The statement I believe Jack sexually assaulted Jill would not be admissible. But the statement of Dr. Blasey Ford that she was afraid she was going to die when a hand was placed over her mouth could be admitted. The issue with Dr. Blasey Ford’s statement is the time lapse. The statement was most powerful immediately after the assault. This is where the buddy system would again be of value. A voice recording could be helpful.
What I have written is basic as to these three exceptions to the hearsay rule. What is allowed into evidence at a trial will be determined by the rulings of the presiding judge to objections raised. Case law will guide the rulings. I use the exceptions primarily to glean from them how to increase credibility of “she says”.
In summary secret keeping needs to stop and documenting unwanted sexual experiences needs to start NOW. Perpetrators will deny, deny, deny. Silence is their friend. Girls/women should be prepared to have a buddy they can confide in immediately after any unwanted sexual event. They should also be prepared to record the who, what, where and when of any unwanted sexual experience. Pictures of injuries, torn clothes, bruises are valuable. A picture is worth a thousand words and of still more value when the date is recorded on the picture.
The denials made by perpetrators rely on silence. Maybe, just maybe, the breach of silence by survivors can be a deterrent.
And finally no girl or woman who is sexually assaulted is a slut. Real boys and men do not prove their masculinity by abusing girls/women.
Winifred Nathan BA, MSW, JD, is a retired attorney. Her resume includes in chronological order sworn police officer, mother, social worker, and psychotherapist. Her bachelor degree was in philosophy and sociology. She lives with her husband in South Carolina but her heart is in Wisconsin where she was born, raised and lived for most of her life. She was born a feminist.