Thursday, September 27, 2018

Like A Virgin: Brett Kavanaugh's Purity Claims

by Sherry F. Colb

During his unprecedented FoxNews interview to clear his name, wife by his side, Brett Kavanaugh declared his innocence for all to hear. In the course of answering the interviewer's questions, he asserted that he did not have sexual intercourse during high school or for years afterward. Asked for clarification, he said that he was a virgin in high school and for years afterward.

My first reaction to these virginity announcements was to wonder how they could be relevant to Kavanaugh's guilt. What he stood accused of doing would not have lost him his virginity. But after thinking about it, I remembered who else brings up their virginity to fight off charges: women in the past. When women accused men of raping them, the women could long invoke their virginity, their chastity, as a basis for concluding that they would not have consented and that they therefore did not consent.

Prior to the rape shield laws, criminal defense attorneys would routinely bring out evidence of an alleged rape victim's promiscuity. They would do it to show that the victim's testimony was unworthy of belief and that she is the sort of woman who consents to sex and therefore also consented to the sex that she claims was rape. Proving that she was a virgin, by contrast, demonstrated her credibility as well as the likelihood that she was in fact an "innocent" victim. It remains hard to get a conviction for rape when the alleged victim is very promiscuous or "unchaste."

But Brett Kavanaugh is not a woman or an alleged rape victim. There is accordingly no tradition of deeming him either more believable or more innocent in virtue of his chastity. The fact that he was (or asserts that he was) a virgin does not make him more credible. Evidence of a man's promiscuity rarely (though not never) made its way into rape trials as impeachment material. And a man's sexual appetites did not come into evidence to show his likely guilt in a rape case.

Yet Kavanaugh invokes his virginity, thereby playing the role of the victim whose chastity has been violated. He is defending himself by saying "I was a virgin" (meaning "I am credible and should be believed") and "I was a virgin" (meaning "I'm a good person who therefore would not have done this bad thing I stand accused of doing"). Of course, being a virgin actually has nothing to do with veracity or credibility--virgins are no less likely to lie than sexually experienced people--and it also has no bearing on sexual assault. In fact, some people have suggested that a sexually frustrated man is more, not less, inclined to force himself on someone under the influence of alcohol. The equation of a woman's chastity with her veracity and her chastity with the odds that she was raped was unjustified before. So why would we want to extend this sort of thinking to men now?

The answer may be that Kavanaugh was looking for some way to increase his own credibility. He may be familiar with old evidentiary traditions allowing promiscuity to destroy rape victims at trial, and he may have thought such evidence could be useful for him here. That this is where his mind goes, however, says more about him--and his vision of women's place--than it does about his general character for truth and veracity or his propensity in 1982 for trying to force himself on another high schooler.