#MeToo, Disability, and the Wrong Man for the Times

For centuries, women who have stepped forward to reveal their experience of sexual assault have been routinely told they are lying or mistaken. More recently, the #MeToo movement has upended that flat assertion, as women around the world have provided tens of thousands of eyewitness accounts exposing the pain of volition taken away, the self-talk that feeds shame, the enduring effects of trauma, and especially, the fear of not being believed. Of being called a liar or incompetent.

When Professor Christine Blasey Ford shared her story of being sexually assaulted by a drunken teenage Brett Kavanaugh, she squarely faced a perennial fear held by women:  not being believed. The defense the adult Kavanaugh chose was an absolute denial, setting up a battle of personal credibility. It is this personal choice of Judge, now Justice, Kavanaugh, that disqualifies him from the Supreme Court, not just the possibility of the 36-year-old allegation being true. While there was no direct 3rd party corroboration of the assault detailed by Professor Blasey Ford, there were numerous first hand accounts from former classmates of Justice Kavanaugh’s drinking habits during his late high school and early college years when he discovered and explored his liking for beer. Given how alcohol, consumed quickly and in significant quantities, can impair memory, it is literally impossible for Justice Kavanaugh to be absolutely certain of the accuracy of his memory for 100% of his high school and college years.  

“I have no memory of assaulting anyone” simply isn’t as effective of a defense as the declarative assertion “I have never assaulted anyone,” even though Justice Kavanaugh can only legitimately lay claim to the former. His deliberate choice, to slide from the first claim to the second, is also a deliberate choice to paint Professor Blasey Ford as either a liar or mistaken, regardless of how carefully he avoided making the accusation outright.  

There are conversations to be had about how to apportion moral and legal responsibility among young people who push the limits of their capacity to drink before knowing how alcohol can distort what they experience, skew their perception, or influence how they act in which situations and how those situations are remembered. There are lessons to draw about how actions taken decades earlier while “stumbling drunk” can still shape and subtly influence an individual who has not spent the last three decades being an alcoholic, a serial rapist, or a lifetime victimizer of women. Many have speculated and inquiries will continue to be made about the lasting impact of the  entire Kavanaugh nomination process and hearing on future candidates for the Supreme Court, both men and women (“Who would put themselves through this?” is a question that applies both to potential candidates and to anyone who might  know something unsavory about the candidate). 

In the end, whatever one concludes about events of the past, Justice Kavanaugh,  a fully mature individual who has witnessed the #MeToo movement, considers himself a mentor to woman attorneys, and is the father of two daughters, decided  to defend himself in the present by calling Professor Blasey Ford mistaken or a liar. With the pinnacle of his judicial career on the line, Justice Kavanaugh was not courageous enough to squarely admit to the fallible memory of the heavy drinker he was in his youth. He did not display moral or legal leadership by honestly raising the great difficulty of reconciling due process in the administration of justice with an urgent need to remove the barriers that inhibit woman from testifying on the pervasive nature of sexual violence, in circumstances where the contradictory testimony of the men and women directly involved is often the only evidence that exists. He was willing to be personal about his own emotional pain and accusations of partisan conspiracy, but unwilling to recognize how his privileged upbringing, gender, or own religious or political beliefs can and do influence his judicial thinking.  Many of us can be gracious, generous, and merciful from a position of acknowledged power. Very few maintain those qualities when we are on the verge of being denied power. Without the. Benefit of much time for analysis,  Senator Murkowski of Alaska still put her finger on the truth when she said immediately after her vote against proceeding with Justice Kavanaugh’s nomination: “in my view he’s not the right man for the court at this time.” 

Senator Murkowski’s statement raises even greater resonance among the disability community.

People with disabilities face the same barriers that confront people without disabilities when coming forward as survivors of sexual violence, as well as even more profound challenges to their credibility. If Professor Blasey Ford, a highly educated women with a resume of professional accomplishments, a family, supportive peers, and all of her perceived functional abilities can be called “mixed up” or accused of being manipulated and used for others’ purposes,  then what about women who have intellectual disabilities, or disabilities that influence the capacity to see, hear or describe an attacker, or disabilities that may limit one’s ability to verbalize a “no” or fight back as  stereotypically expected?   

How can people with disabilities find sufficient strength and security to reveal their experience of assault when they have been taught all their lives that they need to be mindful of others and not make waves because they need more assistance and should be thankful? What are their alternatives when the people trusted to provide them with needed supports or a home outside of an institution are likely to be the very ones responsible for or abetting abuse? And what can they do when they finally tell a social worker or a policeman who may assume that any gaps in their memory or difficulty expressing events or emotions must mean that they are lying or mistaken, rather than expressing a trait associated with their disability?

Advocates who work with people with developmental, intellectual, or other disabilities are familiar with how hard it is for people with disabilities to share their stories.  Women with disabilities have written of how the #MeToo movement has not yet fully included women and men with disabilities who are survivors of sexual assault and harassment.  Anne Wafula Strike, a British Paralympic Wheelchair racer and a black woman born in Kenya , opened her March 2018 opinion piece in The Guardian with this strong statement:

Disabled women are still struggling to find our place in the women’s movement – and high-profile campaigns such as #MeToo are a reminder of what a long way there is to go before we can say that our voices are being heard.  Most things about disabled women’s lives remain shrouded in taboo – our sexuality above all.

We need to hear the voices of women with disabilities, but at the same time, the shocking statistics speak for themselves. Joseph Shapiro’s special series earlier this year on NPR,, Abused and Betrayed, opened with a story on “The Sexual Assault Epidemic No One Talks About.” In addition to highlighting one particular survivor’s story, NPR analyzed unpublished Department of Justice (DOJ)  statistics on sex crimes and found that “people with intellectual disabilities — women and men — are the victims of sexual assaults at rates more than seven times those for people without disabilities.”

People with intellectual disabilities bear an increased  risk of assault any time in the day, and are more likely to be assaulted by someone they already know. Moreover, the DOJ statistics don’t even include sexual violence among people with intellectual or developmental disabilities who are institutionalized and in group homes. Include those incidents and the rate of sexual abuse rises to 70% of people with intellectual or developmental disabilities, with 50% of this group experiencing abuse 10 or more times.

So what does this have to do with Justice Kavanaugh? As Kellyanne Conway posited when she spoke of being a victim of sexual assault herself, “I don’t expect Judge Kavanaugh . . . or anybody else to be held responsible for that. You have to be responsible for your own conduct.” Except that Judge, now Justice, Kavanaugh sits on the Supreme Court. While he may not be responsible for the actions of others, he certainly will have a role in determining when, how and if others are held criminally or civilly responsible for their actions. 

Before Professor Blasey Ford ever stepped forward, many in the disability community had already opposed Judge Kavanaugh’s nomination due to a 2007 decision, Doe Ex Rel. Tarlow v. D.C.. In the case, three women with intellectual disabilities said they were forced to undergo elective medical procedures against their wishes. A 2005 court decision sided with the women and found that before the state could grant, refuse or withdraw consent for elective surgery on behalf of individuals with intellectual or developmental disabilities who were in its charge, it had to at least attempt to find out the known wishes of the patient, including documenting reasonable efforts to actually communicate with the patient regarding those wishes. Judge Kavanaugh, writing on behalf of a 3-judge panel, overturned the court below, finding that no constitutional right required the state to consider, or even attempt to consider, the wishes and opinions of “patients who are not and have never been competent.” Except in this case, the women’s experiences and wishes were not merely theoretical. They actually gave testimony and expressed their own thoughts and opinions at their trial. Judge Kavanaugh did not believe he, nor others, should have to consider these opinions since the women bore a label of “incompetent.” 

In the end, we have placed a man on the Supreme Court who has clearly established that he is still willing to label a woman a liar or mistaken, without hearing her testimony for himself, and without admitting any possible fault in his own memory, any connection to his behavior, or any implication of the #MeToo movement for his own life or work. He paints himself as a pure victim, pointing to the motivation of political opponents, and ignores the substance expressed by a non-political, credible and traumatized accuser. This is not a Justice who will ensure the voices of people with disabilities will be heard, especially those who struggle to tell their uncorroborated stories of sexual abuse and are not being believed. This is not the man for our times.