October 10, 2018

Victims May Be Sincere, but Memory is Fallible

In time, the rage and rancor of the Brett Kavanaugh fight will subside, as rage and rancor invariably do.

In time, the rage and rancor of the Brett Kavanaugh fight will subside, as rage and rancor invariably do.

But the wounds of the last few weeks won’t really heal. It’s only a matter of time until a similarly bitter partisan fight erupts, and when it does we will sink to even deeper levels of spite and malice. The campaign to block Kavanaugh’s confirmation went beyond anything we’ve seen in a court fight before, and the ugly recklessness of recent days will be back.

Of all the demons unleashed during the assault on Kavanaugh, perhaps the scariest was the casual repudiation of due process — the wholesale elevation of belief over facts as the yardstick by which accusations should be judged.

The sexual-assault allegations deployed at the last minute against Kavanaugh remain uncorroborated, yet their truth promptly became a matter of faith among many on the left. Though the charges were wholly inconsistent with the judge’s longstanding reputation for rectitude, Democratic political leaders embraced them. “I believe you,” Kamala Harris and Richard Blumenthal told Christine Blasey Ford when she appeared before the Judiciary Committee. “You are speaking truth,” intoned Cory Booker. On Twitter and other social media, hashtag declarations of faith — #BelieveWomen and #BelieveSurvivors and #IBelieveChristine — mushroomed.

This is a free country, and people are free to believe anything they wish. But life in this country will grow steadily less free if fundamental elements of fairness, like the presumption of innocence, are simply jettisoned when an accusation is made by someone who says with seeming sincerity that she was sexually assaulted. Or when a serious accusation is made against someone who happens to belong to a disfavored group.

As recent events demonstrate, #BelieveWomen and #BelieveSurvivors are powerful political slogans. But science demonstrates even more powerfully that when men (or women) are deemed guilty on belief alone — belief without independent evidence — the results can be horrific.

Reams of psychological research confirm that human memory is notoriously fallible, and that the most traumatic memories — the ones that feel most vivid and indelible — are often the least reliable. When Ford told the Senate she was “100 percent” certain Kavanaugh had assaulted her, few could doubt she was speaking from the heart. But as the National Academy of Sciences emphasized in a lengthy 2014 report on the science of eyewitness testimony, people often “recall things we never experienced.” That is true even of our most unforgettable and upsetting memories. “Despite the vividness and the sense of reliving that characterizes retrieval of emotional memories,” the report said, “there are many indications that such memories are just as prone to errors.”

In a riveting New York Times essay in 2000, Jennifer Thompson described being raped at 22 by an armed intruder, and how determined she was to burn her attacker’s image into her memory. “I studied every single detail on the rapist’s face,” she wrote. “I looked at his hairline; I looked for scars, for tattoos, for anything that would help me identify him.” She later fingered the rapist in a series of police photos, and picked the same man out of a lineup. “I knew this was the man,” she wrote. “I was completely confident.” The man was arrested, convicted, and sent to prison.

But Thompson was wrong. Years later, DNA testing proved conclusively that the man she remembered so vividly was innocent. The rapist, who eventually pleaded guilty, was another man entirely.

Memories are fallible, and passion is distorting. That is why it is vital to our safety that the truth of accusations not be assumed automatically. Whether in a court of law or the court of public opinion, fairness demands that an accused not be punished on the strength of an accusation alone.

And fairness is bolstered not just by psychology but by history. Just as sexual assault is as old as mankind; so is the persecution of innocent victims through false or mistaken accusations of sexual assault. From the Scottsboro Boys to the Tawana Brawley case, from Leo Frank to the Duke Lacrosse team, examples of such injustices abound. The Innocence Project has cleared scores of men wrongly convicted of sexual assault.

BelieveSurvivors is not enough. It should go without saying that women who report being sexually assaulted deserve fairness, respect, and sensitive support. The men they accuse deserve fairness too, above all the presumption of innocence. When people’s lives, freedom, or careers are at stake, facts alone are what we should believe.

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