There is a hashtag on twitter, #WhyIDidntReport, created in the aftermath of the accusations against Judge Brett Kavanaugh in response to contentions that the failure to report the 36-year-old assault can’t be explained. There are a few general types of reactions to the hashtag, some from people molested or raped as young children for whom no reasonable person can argue that their failure to speak out isn’t understandable. This is a very distinct group, deeply problematic for its own obvious reasons.
Others, however, fall along the spectrum of feelings, from not realizing they had been violated to not feeling they would be believed to mistrust of the police and the system.* The thrust is that there are reasons why they didn’t report their rape or sexual assault, good, bad or otherwise, other than that they are lying.
Can we not understand their reasons? Can we not appreciate their fears? Of course we can, and we should. The argument that any rape that has gone unreported is a false accusation is not merely absurd, but patently offensive.
But that’s not the end of the discussion, that we accept their feelings and can understand why and how it happened. Much as we can, it fails to address the other side of the equation, which the hashtag ignores. It’s not that the women now telling their stories ignore the issue deliberately so much as it’s not their purpose to flesh out the entirety of the problem. But at the same time, the problem is what society faces and so it needs to be fully fleshed out, even if it’s unpopular to bring reason into the gush of emotional outpouring.
Whether old, unreported rapes happened or not, whether they’re crimes or not, whether the person now accused committed the crime or not, are the same components of the legal system as are rapes alleged to have happened yesterday. They don’t improve with age, become impervious to error and beyond reproach because of the reason why the “victim” failed to report it for decades.
They aren’t necessarily false, but the excuses for why they were never reported don’t make them true either. Excuses do not prove facts. Excuses do not enhance the validity of an accusation. Excuses merely address a defense to the claim, but do nothing to prove the claim.
The oddity is that people can fully appreciate the nature of the American legal system when it doesn’t involve sex crimes. Of course the accused deserve due process, both procedural and substantive. Of course the accused should have the right to defend, to investigate, to confront their accuser and challenge the allegations. Of course they should.
So why not here? There is a sudden irrational shift grounded in excuses. Confrontation will retraumatize the “victim,” except whether the accuser is a victim remains the question to be answered. The choice, established by the Constitution and appreciated in every other circumstance, falls prey to emotions here, where the undeniable benefit of confrontation is suddenly overcome by the even stronger desire to protect the accuser from further pain, even if it turns out the accuser isn’t a victim or the accused wasn’t the perpetrator of the offense that harmed the accuser.
Our system compels certain choices, such as confrontation. The excuses to avoid it, in this one instance, don’t change that choice. In our current atmosphere of rationalizations, however, a tear is shed and the system upended, reason tossed out the window for feelings.
While confrontation is a casualty of “trial” by social media mob, where guilt is conclusively established by twelve “likes” on Facebook, it’s not unique to old, unreported accusations. These implicate the reasons for statutes of limitations, the legal prohibition against prosecuting crimes beyond a certain period of time, based upon their facial unfairness to the accused. Over time, evidence is lost, memories fade and innocent defendants are incapable of defending themselves against heinous accusations. No legal system can function where the accused is denied the possibility of defending himself. We have chosen not to have a legal system that deprives the accused is presumed innocent, where he must be afforded the opportunity to defend.
So the women are left to their excuses? We would be far better served if the efforts put into rationalizing the failure to report were instead dedicated to encouraging anyone who believes themselves to be the victim of a crime to come forward promptly. The systemic complaints, the cops and prosecutors don’t take such complaints seriously needs to be addressed, not by shifting the bias toward untenable gimmicks like “trauma informed training” but by fair, rational fact-based treatment like any other complainant. If a woman has been raped, her rapist should be prosecuted and convicted. Encouraging this, rather than excusing this, is the answer.
This won’t be the panacea many expect. Not every complaint is, or should be, a crime. Your post-hoc regret doesn’t change your choice at the moment. Your feelings aren’t a substitute for facts. But that’s similarly true if raised a decade or two later. Rape, as the law prohibits, is a heinous crime and should be addressed. Excuses don’t do it. Excuses don’t prove it. They’re merely the moment’s substitute for the failure to timely come forward and deal with a crime perpetrated against you.
It’s understandable why women don’t report, but it’s ineffective and undesirable. Stop promoting excuses for the failure to act and put the effort into encouraging real victims of crime to come forward and fixing the systemic failures that discourage them from doing so. The way to address rape, to prevent rape, is by reporting and prosecuting rapists, not making excuses for the failure to do so.
*There are, no doubt, some within this group who are lying. That this is so neither diminishes the ones who aren’t lying nor changes their point.