*Content warning: contains graphic depictions of sexual assault
The past weeks have witnessed a number of arguments raised in Brett Kavanaugh’s defense that are all too familiar to anyone who researches sexual assault. There’s the “she admits she was drunk” defense, the if something had actually happened “charges would have been filed immediately” defense, the “this is a shameful, shameful smear campaign” defense, and the “a man’s life has been shattered” defense. What is much less common is Kavanaugh’s virginity defense.
Kavanaugh claims that he was a virgin at the time of both alleged assaults, and was therefore incapable of committing the assaults. In Kavanaugh’s own words, “I’ve never sexually assaulted anyone. I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter.” There are two striking problems with this argument. First, Kavanaugh’s argument is logically unsound. Kavanaugh seems to be assuming a narrow definition of virginity—where an individual remains a virgin until they engage in penis-in-vagina intercourse. This definition is itself problematic, as it normalizes heterosexual procreative sex and excludes non-procreative sex acts from being considered legitimate sex. But even assuming this narrow p-in-v definition of virginity, it does not logically follow that being a virgin renders one incapable of sexual assault. Since 2013 the FBI has defined rape as penetration without consent, with a deliberately wide conception of penetration. The definition specifies that penetration can be “by any body part or object.” It is entirely conceivable that someone could rape another person and still technically be a p-in-v virgin.
This point becomes even more obvious when we take into account the fact that Christine Blasey Ford’s allegations involve sexual assault, not penetrative rape (the Department of Justice defines sexual assault as “any nonconsensual sexual act proscribed by Federal, tribal, or State law”). Ford alleges that Kavanaugh pinned her down, groped her, attempted to remove her clothes, and covered her mouth to stifle her screams. None of these actions require p-in-v penetration. It is, once again, entirely conceivable that an individual could pin another person down, grope them, attempt to remove their clothes, and cover their mouth to stifle their screams, and still remain a p-in-v virgin. Being a virgin does not preclude committing sexual assault. Claiming virginity as a defense to sexual assault allegations demonstrates a shocking lack of knowledge about what sexual assault is. Given that Kavanaugh is now a sitting judge on the highest federal court in the United States, it is both surprising and disturbing that he would demonstrate such a profound misunderstanding of what constitutes sexual assault. Kavanaugh’s argument suggests that he either does not understand sexual assault law, or he is willing to completely disregard the prevailing definition of sexual assault.
The second, and more troubling, problem with Kavanaugh’s virginity defense is that it falsely equates sexual assault with sex. Arguing that virgins cannot commit sexual assault makes sexual experience a prerequisite for sexual assault. In essence, Kavanaugh is claiming that sexual assault is impossible in the absence of ethical sexual encounters. He is saying that sex—ethical sex—is a necessary condition for sexual assault. This claim positions sexual assault securely within the boundaries of ethical sex acts. It reframes sexual assault as one possible manifestation of sex, instead of a harmful and unacceptable behavior in and of itself.
This false equation of sexual assault with sex reinforces a prevalent rape myth: that sexual assault is part of the “normal” or “natural” sexual expression of men and boys. This myth maintains that men, especially young men, are prone to act in reckless ways and make mistakes due to exuberant behavior and underdeveloped impulse control. Add raging hormones to the equation and sexual assault becomes almost an inevitability, or so the argument goes. This myth relocates the responsibility for sexual assault from the perpetrators to the survivors. The logic of the myth maintains that men who perpetrate sexual assault are otherwise well-intentioned, upstanding individuals who made a natural, understandable mistake that any man could make, and thus should not be held accountable for their behavior. The real problem, according to the myth, is the women who turn the mistakes of well-intentioned men into an opportunity to destroy their lives. This is why education professor Jonathan Zimmerman can argue that teenage sexual assault is “irrelevant”: “Kavanaugh was a teenager at the time. Of course he was different then; he was a third of the age he is now. And teens do stupid, dangerous, destructive things.” It is how the President of the United States can say, “this could be one of the single most unfair, unjust things to happen to a candidate for anything.” To be clear, President Trump was talking about the unjustness of Kavanaugh being accused of sexual assault, not the unjustness of Ford being subject to sexual assault.
Assuming that ethical sex is a necessary condition for the possibility of sexual assault, as Kavanaugh’s virginity defense does, means building sexual assault into the framework of sex itself. It makes sexual assault—an albeit unfortunate—part of the expected sexual expression of men. It requires women to resign themselves to the idea that sexual assault is going to be an ongoing part of their lives, a part they are not allowed to speak about for fear of ruining a “good” man’s reputation. And it deliberately ignores decades of research about how sexual assault functions, the harms of sexual assault, and the people who commit acts of sexual assault.
What is most troubling about this situation is that Kavanaugh is now a confirmed member of the Supreme Court, and his beliefs and assumptions about sex and sexual assault will undoubtedly follow him there. Kavanaugh could be asked to rule on cases involving sexual assault. Through his own words he has already shown that he is either severely ignorant of what constitutes sexual assault or unwilling to abide by the standard definitions of sexual assault. In either case, Kavanaugh’s own words reveal that he does not have the knowledge base, the willingness to learn, or the respect for established conventions necessary to hear sexual assault cases. More than this, though, Kavanaugh’s unwillingness to dissociate sexual assault from sex suggests that he will always have a hard time distinguishing sexual assault from ethical sex. As long as Kavanaugh assumes that sexual assault is impossible outside of the bounds of ethical sex, his definition of sexual assault will fail to align with the factual reality of sexual assault, making it easy for him to misconstrue acts of sexual assault as ethical sex. This assumption implies that when faced with sexual assault allegations, Kavanaugh is likely to be more willing to see them as unproblematic sexual conduct, or part of the sexual development of boys and men, rather than sex crimes.
Kavanaugh’s own words call into question his ability to rule on cases involving sexual assault in an impartial, well-informed, and just manner. And yet the Senate and the President of the United States just confirmed him to the Supreme Court. Moving forward, every sexual assault case that makes it to the Supreme Court will be up against a set of damaging rape myths that are grounded in bias and misinformation instead of fact. Every sexual case will be heard by a judge who has already characterized sexual assault as just another kind of sex.
Image by Phil Roeder.
Miranda Pilipchuk
Miranda Pilipchuk is a graduate student at Villanova University, where she studies feminist epistemology and intersectionality. In addition to her published and presented works on these topics, she is also managing editor at Hypatia: A Journal of Feminist Philosophy.
If Brett Kavanaugh, as a federal judge, is not clear about the definition of sexual assault, that is a definite problem that should be corrected. But Kavanaugh’s so-called ‘virgin defense’ was not made in a federal courtroom or a Senate hearing. It was made in a Fox News interview, in response to unsubstantiated allegations that he and a friend got women drunk and gave them drugs to carry out gang rapes—allegations that Kavanaugh called outrageous and false, and that have not been confirmed by any source. In that context, his statement that he did not have sexual intercourse with women until many years after, while not answering to the allegations of sexual assault, is nonetheless a valid statement to make in an interview, when courtroom rules do not apply. I’m not defending him or judging the truth or falsity of the allegations, simply correcting the record which is here presented misleadingly. There have been dozens of op-eds slamming Kavanaugh’s ‘virginity defense,’ not mentioning that it was not a defense, simply a statement in an interview by someone put on the spot to defend himself against unsubstantiated allegations that have never been made in court.
The statement Brett Kavanaugh made to the U.S. Senate is quite different. Here it is, so you can judge whether it is an adequate response to the allegations:
“Sexual assault is horrific. It is morally wrong. It is illegal. It is contrary to my religious faith. And it contradicts the core promise of this Nation that all people are created equal and entitled to be treated with dignity and respect. Allegations of sexual assault must be taken seriously. Those who make allegations deserve to be heard. The subject of allegations also deserves to be heard. Due process is a foundation of the American rule of law.
Dr. Ford’s allegation dates back more than 36 years, to a party that she says occurred during our time in high school. I spent most of my time in high school focused on academics, sports, church, and service. But I was not perfect in those days, just as I am not perfect today. I drank beer with my friends, usually on weekends. Sometimes I had too many. In retrospect, I said and did things in high school that make me cringe now. But that’s not why we are here today. What I’ve been accused of is far more serious than juvenile misbehavior. I never did anything remotely resembling what Dr. Ford describes.
The allegation of misconduct is completely inconsistent with the rest of my life. The record of my life, from my days in grade school through the present day, shows that I have always promoted the equality and dignity of women.
I categorically and unequivocally deny the allegation against me by Dr. Ford. I never had any sexual or physical encounter of any kind with Dr. Ford. I am not questioning that Dr. Ford may have been sexually assaulted by some person in some place at some time. But I have never done that to her or to anyone. I am innocent of this charge. ”
I only also add that after the allegations against Kavanaugh were made public, 65 women who knew him well during his high school days came forward to testify that he did not and would not have committed the actions described in the allegations. And the alleged witnesses to the alleged party described in Dr, Ford’s allegations all claimed that the party itself and the actions described did not happen. Under the circumstances, no U.S. court with any respect to due process and the civil rights of defendants could possibly find Kavanaugh guilty of the conduct alleged, however defined.
What bothers me, though, is that with all the frenzy and confusion surrounding these allegations, nobody—and I mean nobody—really tells the truth about what happens during a sexual assault or rape. For an unwilling victim to be assaulted or raped, they either must be physically subdued, by violent means which leave marks, or else, more often, psychologically forced to submit to the abuse, through pressure and coercion which causes their ‘will to be overborne,’ in the terms of the US Supreme Court’s Miranda v. Arizona decision. An unwilling person’s will is overborne when a psychologically stronger person exerts pressure and stress upon them that causes them to partially lose consciousness or lose control over their faculties, to ‘swoon’ or ‘black out’—something which can be done to an unwilling person without the application of drugs or booze. The unwilling victim passes out, blacks out, or loses control of their faculties, is assaulted or raped, and wakes up feeling violated and abused, but may be incapable of speaking out about what happened or doing something about it because the rapist or abuser is still psychologically in his or her mind, blocking the ability to speak or act, and because the post-traumatic effects of the rape or abuse malinger long past the actual physical assault.
In some cases, the unwilling victim may actually even be made to consent to the assault or rape by a species of ventriloquism: the stalker or rapist gets inside their mind and nerves and makes them say “yes…” and then makes them do what she or he wants. In more extreme cases, the unwilling victim may even find him- or herself subconsciously performing the acts demanded by the stalker or rapist, and only afterward think to him- or herself: “But I didn’t really want to do that! Why did I do that?” The answer: Because your will was overborne. The stalker or rapist got inside your defenses and made you say and do things you did not want to say and do. Just as, for example, a perfectly innocent criminal defendant can by coerced by police and lawyers to confess to a crime they did not commit, as has been demonstrated dozens of times in U.S. court cases. And until the truth is told about how stalkers, rapists, murderers, and supposed normal everyday people like college professors or high school coaches take advantage of their superior positions in the professional or educational system to get inside their victims minds and nerves and make them say and do things they do not want to say and do, the truth will never be told about sexual assault or rape.
And why do I know about this? Because I am one of those people who it’s easy to do it to. You all know who we are. And because it’s been done to me, many many times. And not just by men. But by women, too. By women, too…
Eric D. Meyer
Hi Miranda,
I wonder if it would turn the heat down in debates on this subject if we changed the word we use to describe people who experienced sexual assault. When we use “survivor,” it makes it seem we equate being raped with being murdered, which is so much of an escalation that it has the potential to antagonize people who might otherwise have been listening sympathetically. I wonder why we stopped saying “victim”? Because feminists have rejected that term, because it makes women seem helpless? I”m not sure “survivor” is an improvement. “Sufferer” might be a good candidate–having both a neutral meaning (“undergoer”) and an emotional valence (one who feels pain because of something undergone). Just a thought. Thanks for your paper!
to Jake:
I hadn’t seen your comment when I wrote mine. I think you are right that Kavanaugh was not intending to make an argument and therefore cannot be brought down by a formal criticism. Good point.