It’s Sexual Assault Awareness Month: Time to Focus on…Judges?



Sexual Harassment and Assault

By Nan Aron and Jess Davidson

Nan Aron is President of AFJ and Jess Davidson is Executive Director of End Rape on Campus

The statistics are shocking: Every 92 seconds an American is sexually assaulted and One in five women will be sexually assaulted in college. This harsh reality has helped give rise to the #MeToo movement, founded by Tarana Burke more than a decade ago, and a long-overdue focus on the experiences of sexual assault survivors. As much of the nation has galvanized to support survivors and commit to eradicating sexual violence, the Trump administration has had an appalling response: rolling back survivors’ rights, including those of young survivors in schools under Title IX.

And that’s not all: The administration has sought to lock in decades of anti-survivor policy with its inexplicable insistence on nominating for lifetime federal judgeships individuals with terrible records on sexual assault and harassment, ranging from victim-blaming, to outright hostility to survivors’ claims, to being alleged perpetrators themselves.

By now, the entire country knows that Brett Kavanaugh was able to skate to a Supreme Court seat despite credible allegations that he had sexually assaulted women. But Kavanaugh is only the highest-profile example of this administration’s attitude toward its judicial nominees’ egregious records on this issue. It’s unclear where that attitude shades from indifference into tacit acceptance, or how much it reflects tolerance of the President’s own history of alleged assaults. But it certainly makes the administration complicit in re-victimizing survivors, whose lives will be shaped by the decisions Trump’s judges make.

The list of Trump judicial nominees with retrograde attitudes on harassment and assault grows virtually every week. Neomi Rao was confirmed to fill Kavanaugh’s vacant seat on the DC Circuit Court of Appeals despite writings that cast blame on survivors for provoking assaults and complained about “hysteria over date rape.”  Michael Brennan was confirmed to the Seventh Circuit Court of Appeals although he praised a Supreme Court ruling that struck down significant parts of the Violence Against Women Act. Kurt Engelhardt was confirmed; as a federal trial court judge in Louisiana he was notably skeptical of sexual harassment claims, going out of his way to rule they did not rise to the level of objectively hostile conduct despite severe or pervasive evidence of a hostile work environment. Kenneth Lee is poised for confirmation to the Ninth Circuit, despite penning an article designed to destroy the credibility of women who accused a Cornell University professor of sexual harassment.  He also wrote that “charges of sexism often amount to nothing but irrelevant pouting.” Meanwhile, a nominee who was forced to withdraw, Ryan Bounds, wrote that expelling students accused of rape is an overreaction: “Expelling students is probably not going to contribute a great deal toward a rape victim’s recovery; there is no moral imperative to risk egregious error in doing so.”

Overall Trump has nominated or had confirmed to judgeships no fewer than nine people who bring with them harmful records on sexual harassment and assault. The number gets bigger if you include nominees who are hostile to gender justice overall, including at least two now-judges who openly expressed doubt that there is such a thing as a “glass ceiling.” This is an alarming trend that augurs very poorly for progress and most particularly for survivors if they find themselves in one of these judges’ courtrooms.

It’s not hard to see why survivors and allies are so concerned to see anti-survivor attitudes among these nominees. A judge who has always doubted assault survivors’ veracity brings an anti-survivor bias to the courtroom.  A judge who has always been skeptical of whether incidents of sexual harassment were really all that bad brings an anti-survivor bias to the courtroom. A judge who seems to hold women in low regard in general, who thinks women are prone to “pouting” or that they have concocted a false notion of a glass ceiling, brings an anti-survivor, anti-woman bias to the courtroom. Meanwhile, each year, hundreds of thousands of Americans experience sexual violence and will have to join the ranks of survivors who are forced to live under the laws and decisions made by judges who’ve never had survivors’ best interests at heart.

This has real meaning, because the judges President Trump is seating now will have the power to decide how the law will treat individuals if they are abused, assaulted, or harassed. And because many of these judges are exceptionally young, they will be making those decisions for decades to come.

This April during Sexual Assault Awareness Month we will fight – as we do day in and day out – to beat back the stigma and skepticism that have silenced so many survivors over the years.  We will fight for public policy and laws that center and respect survivors.  But we should also remember that our laws are only as good as the courts that enforce them. So we must also fight for judges who understand and respect survivors’ rights – and we must fight against those who, like so many of Trump’s judicial nominees, do not, cannot, or will not.