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“He said, she said.” I heard that characterization more than once from military commanders when I brought them allegations of sexual assault to consider for prosecution. I also heard that phrase when, as a young officer, I sat on a jury during a court-martial of a senior non-commissioned officer whom we then convicted of substantial sexual harassment, a crime in the military.
I heard it numerous times later, from fellow attorneys, when assessing the numerous reports of sexual assault that crossed our desks as military prosecutors and command legal advisers. And I have heard it used pervasively to diminish the gravity of the accusation against Supreme Court nominee Brett Kavanaugh.
This term was often used dismissively. But some senior-ranking commanders employed it out of frustration. Frustration as they struggled to explain to their lawyer why they questioned my recommendation to prosecute an airman accused of sexual assault by a fellow airman.
'He said, she said' is a cop-out
I recall patiently, and at times not so patiently, explaining that when commanders used the phrase “he said, she said,” they meant it as a euphemism for lack of evidence — and that it was flat-out wrong, a cop-out often informed by inaccurate stereotypes of sexual assault victims. I explained that a witness’s statement is of course evidence, and that the strength, or lack thereof, of such evidence is informed by common-sense credibility assessments.
In other words, “he said, she said” is a myth, a non-existent phenomenon.
When military commanders were deliberating whether to prosecute military personnel accused of a sexual assault, I urged them to consider not simply naked allegations followed by denials, as implied by the “he said, she said” label. I encouraged them instead to consider myriad factors regarding such statements, such as motive for making an accusation, character for truthfulness, declarants’ sobriety at the time of the alleged crime, the detailed nature of such a statement, consistency with prior statements, if any, and a witness’s actions following the alleged incident — the latter informed by studies of typical behavior by sexual assault victims, such as delayed reporting, lapses in memory and other relevant factors.
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These discussions were usually unsuccessful. The trap of the “he said, she said” phenomenon had already convinced these otherwise sound military leaders that it would be unfair to take an accused service member, particularly one with a great military record, to trial based on such evidence.
I once was even told by a commander, whom I greatly respected, that while he believed the victim, he “didn’t want to ruin this senior non-commissioned officer’s career” based “only on one person’s word that this thing occurred.” Similar sentiments have echoed today regarding the sexual assault accusations against Kavanaugh, perhaps to similar effect.
Fortunately, "he said, she said" has started to change within the military — ironically, after years of congressional hearings and pressure to fix the problem. Over the last several years, these allegations have drawn greater institutional scrutiny and disciplinary consequences. This week's Senate hearing, with its testimony from Kavanaugh as well as his highly credible accuser, Christine Blasey Ford, hopefully will contribute to the destruction of the “he said, she said” myth in the larger society.
No one deserves to be believed based solely on their word. And while those making allegations, as Kavanaugh said Thursday, deserve to be heard, they deserve more than that: They deserve a full, fair and objective process in which their statement is carefully weighed in the context of credibility factors and other evidence. This is what due process mandates.
Resume is no longer an excuse to let men off
The siren song of Kavanaugh’s distinguished career was playing loudly at Thursday's hearing, trying to lure senators to the conclusion that “gee, this guy has done so much and served his country so honorably, there’s just no way he could have engaged in a sexual assault over 30 years ago.” Kavanaugh himself stressed his honorable service in his statement, presumably as evidence that he didn’t commit the alleged assault.
This was another parallel with the military, which until quite recently struggled to reconcile a good military record with an accusation of sexual assault. While specific character for truthfulness is relevant to assess witness credibility, the past distinguished employment history of someone accused of sexual assault — no matter how great their combat record, or how high in government (the White House) they served — is simply not relevant or helpful in considering the truth of sexual assault allegations. This is why Congress specifically prohibited military commanders, as well as juries, from considering such records in criminal cases.
The U.S. military today often leads the way in reflecting the best of America, proving that its diversity is a huge strength. After decades of failing in the sexual assault arena, it is now beginning to lead the way in how to handle such allegations: with thorough, impartial investigations and trained, methodological approaches to evaluating all the facts. The Senate, and society, should follow suit.
Rachel E. VanLandingham, an associate professor at Southwestern Law School and vice president of the National Institute of Military Justice, is a retired Air Force lieutenant colonel who served as a judge advocate while on active duty. Follow her on Twitter: @rachelv12
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