U.S. Supreme Court nominee Brett Kavanaugh’s accuser, Christine Blasey Ford, is scheduled to testify Thursday before the Senate Judiciary Committee about her allegations of sexual assault.
Ford is one of three women who have accused Kavanaugh of sexual assault. Deborah Ramirez says Kavanaugh thrust his penis into her face without her consent at a house party during their Yale University days.
A third woman, Julie Swetnick, came forward through her lawyer on Wednesday, alleging she was gang raped at a party Kavanaugh attended and that Kavanaugh and his friends “spiked” girls’ drinks. All the allegations involve partying and date back to the 1980s.
Kavanaugh has denied the that he sexually assaulted Blasey Ford and Ramirez, and while he has yet to address Swetnick’s story, he has denied ever sexually assaulting anyone.
All three women who have come forward have been lambasted by Conservatives, who have called the allegations a deliberate attempt by the Democrats to sink Kavanaugh’s nomination.
While some Conservatives have dismissed the allegations generally, they have also indicated that even if they are true they amount to “drunken behaviour” from when Kavanaugh was young that shouldn’t matter. Others have used the alleged victims’ own alcohol consumption as reason for doubt. Adding his voice to the cacophony, U.S. President Donald Trump cast the allegations from Ramirez as “totally unsubstantiated,” suggesting she was “inebriated” and “all messed up.”
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Experts say that in highlighting Ramirez’s alcohol consumption as a reason she might be lying or misremembering the incident is at odds with the evidence.
So why is it still such a pervasive defence?
Former congressman Joe Walsh tweeted, “If stupid, bad, or drunken behavior as a minor back in high school were the standard, every male politician in Washington, DC would fail. Every single one.”
Conservative journalist Rob Dreher added his own take, tweeting, “I do not understand why the loutish drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge.”
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That Kavanaugh’s accusers can be condemned for inebriation while at the same time drinking is used to exonerate him speaks to society’s “evolving but not fully evolved” understanding of sexuality, says Ann Decter, director of community initiatives at the Canadian Women’s Foundation.
On one hand you have the #MeToo campaign, she says, and on the other you have the backlash: people for whom “boys will be boys” is the way of the world, and empathy for men like Kavanaugh can be generated from concern that, “maybe I did something when I was drunk and somebody’s going to come after me.”
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Ultimately, says Farrah Khan, it speaks to people’s general reluctance to accept that rapists and abusers aren’t just perverted strangers hiding behind bushes.
“It’s people we know, people we like, people who may be our friends,” says Khan, manager of Consent Comes First at the office of sexual violence support and education at Ryerson University.
In shifting the focus from who the accused is to what he or his victims drank, she says, we’re effectively shifting responsibility for the assault.
“It’s blaming the behaviour on alcohol use,” Khan says. “Alcohol made people do it.”
Except, that’s not what the evidence suggests.
Alcohol is at play in roughly half of sexual assault cases, according to a report from the National Institute on Alcohol Abuse and Alcoholism in the United States. Sometimes it’s consumed by the victim and other times by the perpetrator.
In some cases, a person’s wish to sexually assault another person actually triggers alcohol use, the Institute’s report says. Per the U.S. government website on date rape drugs, alcohol is “the drug most commonly used to help commit sexual assault.”
The commonalities among male sexual assault perpetrators had a lot to do with their views on women, the report goes on. The assailants were mostly men who were lower in empathy, and more likely to endorse statements like “no means yes,” “women enjoy forced sex” and “all’s fair in love and war.”
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The men were also more likely to be hostile to women. That hostility is explored in a 2011 study in the journal of Psychology and Addictive Behaviors. In tracking hundreds of newly-wed couples during the first four years of marriage, that study found that heavy alcohol consumption only made a person predisposed to hostility more aggressive. Someone low in hostility could drink alcohol without showing signs of alcohol-related aggression. Those findings were consistent with previous studies.
And yet, Decter says, there’s a long history of intoxication being used in courts to create reasonable doubt.
Section 33.1 of the Canadian Criminal Code actually prevents people from using self-induced intoxication as a defence. However, that hasn’t stopped lower court judges from using a victim’s drunkenness as a reason for acquittal.
In 2017, a Nova Scotia judge made headlines nationally after acquitting a Halifax taxi driver of sexually assaulting a passenger, writing in his ruling, “Clearly, a drunk can consent.”
More recently, an Ontario Superior Court Justice ruled in August that Cameron McCaw, a Toronto man due to stand trial for sexual assault, would be allowed to argue the defence of extreme intoxication.
“Section 33.1’s objective … is not sufficiently pressing and substantial to justify the great damage it does to fair trial interests,” Nancy Spies’ wrote before affirming that it was “of no force and effect in Ontario.”
When it comes to being drunk, Decter says, “it depends on whose drunkenness you’re talking about, really.”
Think back to the Jian Ghomeshi trial, she says, and how the victims’ evidence turned on how credible the judge found them. Even though Ghomeshi was acquitted, the judge clarified that having reasonable doubt “is not the same as deciding in any positive way that these events never happened.”
WATCH: Learning from the Ghomeshi case
Time and diligent advocacy is slowly changing people’s understanding, Decter says.
“There’s a much greater understanding that a woman takes a risk to come forward, there’s an evolving understanding that it takes time sometimes to understand what happened to you.”
Christine Blasey Ford, who has faced death threats for speaking up, said she felt compelled to do so out of a sense of obligation. If confirmed, Kavanaugh would serve on the U.S. Supreme Court for life.
Ford is set to testify before the Senate Judiciary Committee on Sept. 27 at 10 a.m.
– with files from The Canadian Press
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