The judiciary must deal with #MeToo—and with what I know

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Nicole VanderDoes\

Nicole VanderDoes

Time magazine recently named “The Silence Breakers” as its 2017 Person of the Year in recognition of the #MeToo movement and the people who have spoken out about sexual assault. Some of the Silence Breakers led to national storylines chronicling the downfall of powerful men who used their positions to commit sexual assaults and get away with it—until now. And some of the Silence Breakers simply tweeted or posted #metoo, often sharing for the first time, with that simple hashtag, a hint at what they’d suffered.

From Hollywood to news organizations to elected politicians on both sides of the aisle, and now to the judiciary, the list of the accused keeps growing. The stories being reported and (mostly) believed are ones with significant corroboration. But many men will never be accused or held accountable. Because most sexual assaults occur without the corroboration many people require to move beyond their reaction of “Not him?!” when the perpetrator is well-liked professionally and socially, and someone with whom his victim has continued to interact.

This I know from personal experience. And I’ll explain that later in this article.

With the resignation of Judge Alex Kozinski from the 9th U.S. Circuit Court of Appeals, these charges have reached the judiciary on a national level. And lawyers and judges need to be prepared for how to respond and maintain the integrity and independence of the judiciary. Because if it looks like the legal system is protecting its own, it will lose all credibility. How can you trust a judicial system that doesn’t hold officers of the court accountable?

Every judicial disciplinary authority needs to be prepared for how to respond if a news story breaks about sexual misconduct by a judge within its jurisdiction. For entities accustomed to internally evaluating the merit of complaints and then maintaining confidentiality throughout most proceedings, it will not be business as usual when a breaking news alert exposes serious judicial misconduct. Prompt action and meaningful sanctions must be forthcoming. The same should be true if a confidential report is made through traditional reporting methods.

Every bar association needs to be prepared as well. If there is inaccurate or misleading news coverage of criminal or civil proceedings, a bar association can explain the burden of proof, standard of proof, rules of evidence (including why evidence of prior bad acts is almost always excluded), and anything else necessary to help the public understand the legal process.

But a bar association should be careful not to shout too loudly about the presumption of innocence, because it will appear self-interested while potentially protecting a predator and chilling other would-be Silence Breakers. It is also critical that a bar association take swift action to remove anyone accused of sexual assault or harassment from leadership positions, and even from membership, depending on the situation. And every bar association should have an easy and safe way for members and employees to report sexual misconduct related to bar association activities.

There are very few men who have more power than a judge. In many ways that’s a good thing, because judges must make difficult—and sometimes unpopular—decisions that are required by law. They must be able to ignore pressure from other branches of government and avoid being influenced by any improper factors. By following the law, judges ensure that we have fair, independent courts that protect our rights and our democracy.

But a judge should never use his power to sexually pressure court staff, lawyers, litigants or others. A judge should never use his power to grope, kiss, massage or rape someone who trusts him because of his position, and who feels powerless against him. A judge should never use his power to silence or retaliate against someone he sexually assaults. Most judges, like most men, don’t sexually assault people. But some judges, like some men, do.

I know because I was raped by a state court judge I had just met at a bar association event, with whom I was discussing a project while I waited to meet friends. I know because I was pressured into sexual activity with a federal judge who I knew and admired professionally. They were both significantly older and married, and I did not find them attractive, so it never occurred to me that they had any romantic or sexual interest in me or would try anything. I reluctantly reported the first one to the police about 10 days after it happened, at a prosecutor friend’s very strong urging. The detectives believed me, but eventually told me “it wasn’t rape” under that state’s laws because I had not physically fought back, despite crying, saying stop, and being held down—and it wasn’t worth filing charges for a lesser offense since the judge was outside their jurisdiction by the time I reported it. As a lawyer, I’d read the statutes before I ever contacted the police, and expected that outcome.

To this day, I’m still surprised and grateful that friends, family, and even those detectives believed me, because I never thought anyone would believe a judge would rape someone. In the other instance, I never told anyone. Because it wasn’t “rape.” I didn’t want to do it, and didn’t know how to get out of the situation, but I still feel like I let it happen. I am cordial but uncomfortable when I see him. I have invited him to professional events, because he is someone you invite. I’ve always told myself that he didn’t realize the position he put me in as a much younger woman, alone in a room with him, not wanting to seem rude when he complimented my body, when he touched my hair, when he kissed me.

I’m not a Silence Breaker, because I will not name their names. I share these personal stories, because, unfortunately, I know that judges can commit rape and can coerce sexual activity because of their positions of power. Many, like me, will stay silent because they fear the professional repercussions that would come with speaking out. But the day will come when judges will be named.

So lawyers, judges, courts, judicial disciplinary authorities and bar associations need to be prepared so that when that day comes, we can preserve the integrity of the judicial system by holding all judicial officers to the highest standards and showing the public that no one is above the law.

Nicole VanderDoes is the chief counsel of the ABA Standing Committee on the American Judicial System.

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