There’s no sense in my jumping into the Kavanaugh battle with a personal opinion; there are bazillions of those already, and I have no experience that gives me any special insight into legal issues.
But I do find something waaay back in the writings of Moses that may give us a little something to think about.
The legal difficulty of sexual assault is that it typically doesn’t happen in the city square, with lots of witnesses. The nature of sex as a private function means that abuses of the sexual function, like its legitimate uses, tend to happen in private. And in private, there are just two witnesses. If the sex is abusive, then the two witnesses are the perpetrator and the victim.
He said, she said.
That’s how it almost always is.
In biblical times it was the same way, of course. I note that in those days, unlike today, rape was a capital offense. I’ve heard it argued that today it shouldn’t get the death penalty because if the rapist knows that, he’ll just go ahead and kill the victim, since that would eliminate a witness without increasing his penalty. I recognize the logic, but I still would prefer to see the death penalty for rape, particularly in a day when DNA testing can make the identity of the perpetrator absolutely certain.
But back to my point. In biblical times, rape got the death penalty. But here’s the thing: elsewhere the biblical law restricted the death penalty to cases where you had at least two or three witnesses (Num 35.30; Dt 17.6).
Contradiction, no? Rape gets the death penalty, but there are never enough witnesses to actually get it carried out. The woman loses, every time.
Ah, not so fast.
There’s a special provision for allegations of sexual assault. In the midst of some broad-ranging regulations in Deuteronomy 22 (help an animal stuck in a ditch ; don’t kill a bird sitting on a clutch of eggs ; build your house so that visitors are safe ), there’s a point about sexual assault.
23 “If there is a betrothed virgin, and a man meets her in the city and lies with her, 24 then you shall bring them both out to the gate of that city, and you shall stone them to death with stones, the young woman because she did not cry for help though she was in the city, and the man because he violated his neighbor’s wife. So you shall purge the evil from your midst.
25 “But if in the open country a man meets a young woman who is betrothed, and the man seizes her and lies with her, then only the man who lay with her shall die. 26 But you shall do nothing to the young woman; she has committed no offense punishable by death. For this case is like that of a man attacking and murdering his neighbor, 27 because he met her in the open country, and though the betrothed young woman cried for help there was no one to rescue her.
If the attack happens near other possible witnesses, then we assume that in a nonconsensual encounter the woman would protest in ways that those nearby would hear. If she says later that it was rape, then she is judged to be lying since she didn’t scream during the assault.
But if the event occurs away from possible witnesses, the woman gets the benefit of the doubt. Maybe she did call for help, and there was nobody to hear her.
Now, a woman having a consensual sexual encounter in the woods might lie too. She could decide later that it was a mistake, and she could decide to get the poor guy in beaucoup trouble. That could happen.
But here, she gets the benefit of the doubt. As the only witness. In a charge that bears the death penalty.
It’s not a perfect world. God knows that. And he indicates that he expects us to do the best we can in these difficult decisions. We need to remember that women lie just as certainly as men do, for all kinds of reasons. And we also need to remember that sometimes we need to give a woman in a difficult spot the benefit of the doubt.
When do we do which? That’s a really tough call; as someone who served on a jury for a case of child sexual assault, I know exactly how difficult it is.
But if you support Kavanaugh simply because you’re a Republican, or you oppose him simply because you’re a Democrat, then you’re in no position to be heard in such a critical decision.
Which, I guess, disqualifies pretty much everybody this time around.