Testimony by Judge Brett Kavanaugh and Professor Christine Blasey Ford was heard by the American Senate this week. Professor Ford has accused him of sexual assault, which puts his appointment to the U.S. Supreme Court after his nomination by President Donald Trump at risk.

Professor Ford described the alleged 1982 attack in detail, saying it had “drastically” affected her life. Judge Kavanaugh angrily denied he had assaulted her or anyone. Another three complainants wait in the wings.

It may be difficult to see this as a victory. Ford has been put through a very difficult process, involving firstly trying to get anyone to listen to her, and then secondly having to repeat her story again and again. “I was conflicted about whether to speak out,” she said. “All sexual-assault victims should be able to decide for themselves whether their private experience is made public.”

Her experience was not just made public in the course of a sexual assault trial. It was the subject of a Senate hearing, and televised across the world. Her character, demeanour and political affiliations have been the subject of public debate. She has received death threats and she and her family were forced to move out of their home for fear of a risk to their safety.

So why is this a victory, although a slender one? In 1991 Anita Hill, a U.S. attorney and academic, became a national figure when she accused U.S. Supreme Court nominee Clarence Thomas, her supervisor at the United States Department of Education and the Equal Employment Opportunity Commission, of sexual harassment. A wall of white men, interrogating Anita Hill about her allegations of sexual harassment, repeatedly asked her to answer questions about the sexual harassment and why she had not immediately reported it. And they found the fact that she had not immediately reported the behaviour to be key to her credibility – or lack thereof.

Fast forward now to 2018. The wall of white men remains. All the Republicans on the committee are white men. But this time the questions were put to Professor Ford by a woman who is a specialist prosecutor in sexual offences cases. Ford herself is a psychologist, and in the years since the Hill/Thomas hearing the research on how the brain responds to trauma has come a long way. Her evidence as to gaps in her memory was backed up by science, and clearly did not affect her own confidence in her testimony. Those gaps were to be expected.

And as our own Constitutional Court found in the Levenstein case earlier this year:

“In these days survivors of sexual assault feel empowered to come to grips with and denounce sexual abuse they had suffered as children. They have become more informed about their condition and rights and have received support from public interest groups. There is healing power in groups. The survivors find solace in each other’s words; they feel more empowered to bare their souls and relate their painful experiences.”

The court accepted that it was not unusual for survivors to delay coming forward, or in fact never to come forward. In that ground-breaking decision, based on evidence presented by women lawyers and women experts, our law accepted that a delay in coming forward does not impugn credibility.

We need three endings – one where they refuse, one where they delay and one where they confirm.

1.       Confirm.

The confirmation of Kavanaugh is certainly a blow to those fighting to assert many of the issues that are important to women. His recent decision effectively blocking access to termination of pregnancy for unlawful immigrant minors gives one an indication of things to come. But this may well be a watershed moment in how we see and understand survivors report sexual offences. Professor Ford’s courage in coming forward, and her evidence on how and why survivors delay reporting, and how their memory of the events is constructed will affect hundreds of survivors in their decision to report in days to come. In the face of the onslaught of sexual offences, we must take our slender victories where we can.

2.       Delay.

The delay in the confirmation of Kavanaugh is certainly a small victory. His recent decision effectively blocking access to termination of pregnancy for unlawful immigrant minors gives one an indication of things to come, should he be appointed. But this may well be a watershed moment in how we see and understand survivors report sexual offences. Prof Ford’s courage in coming forward, and her evidence on how and why survivors delay reporting, and how their memory of the events is constructed will affect hundreds of survivors in their decision to report in days to come. In the face of the onslaught of sexual offences, we must take our slender victories where we can.

3.       Defeat.

The failure to confirmation Kavanaugh is certainly a victory for those of us fighting to assert many of the issues which are important to women. His recent decision effectively blocking access to termination of pregnancy for unlawful immigrant minors gives one an indication of things might have unfolded. But this may more importantly be a watershed moment in how we see and understand survivors report sexual offences. Prof Ford’s courage in coming forward, and her evidence on how and why survivors delay reporting, and how their memory of the events is constructed will affect hundreds of survivors in their decision to report in days to come. In the face of the onslaught of sexual offences, we must take our slender victories where we can.

In South Africa we need to continue to put pressure on our government to roll out specialised sexual offences courts across the country. In these courts specially trained prosecutors know how to question rape survivors while remaining alive to the issue of gaps in memory induced by trauma and the myriad reasons why rape survivors delay reporting without these factors undermining the facts of the case in any way. This is a victory still to come.

 

Kathleen Dey is the director of the Rape Crisis Cape Town Trust and Alison Tilley is head of advocacy for the Open Democracy Advice Centre.

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