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30 September 2018updated 08 Oct 2018 5:54pm

Without Our Consent

The Kavanaugh hearings show how power operates in patriarchy.

By Laurie Penny

“You’re out of order! You’re out of order! The whole trial is out of order! …You, you sonofabitch, you! You’re supposed to stand for something! You’re supposed to protect people!”

– Arthur Kirkland, “And Justice For All” (1979)

There are moments when the mask comes off. Moments when you can see the stitching come apart on the seamless story powerful men have told themselves about what justice means in the world and who deserves it. Sometimes that curtain gets ripped away and we all have to pay attention to what’s cowering and snarling behind it.

That is what has happened in the high-stakes courtroom drama of Brett Kavanaugh’s nomination hearings. The naked, shameless demonstration of how little women’s pain matters to power is the reason this trial has been so affecting for so many of us. You’d think most women and girls would be numb to this by now – to seeing people like us muster all their courage to relive trauma and terror in the hope that something would change, and then seeing the world decide that men’s discomfort matters more. But this hurts. It hurts in a way that’s hard to look away from.

Patriarchy has shown its belly, and its teeth. Testifying before the Senate Judiciary Committee to defend himself against at least three separate accusations of sexual assault, the hard-right judge had a full-on tantrum. What I have – what a great many women around the world have today – are some questions.

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When does authority become abuse? Who is the law supposed to protect? Is it supposed to protect women from violence, or men from consequences? The answers to these questions burrow to the heart of what is becoming a referendum not just on young men, nor masculinity as a whole, but on the nature of justice itself.

“It is in rape,” writes Baroness Helena Kennedy QC, in her forthcoming book Eve Was Shamed, “that the law crashes up against the rawest display of the power imbalance between men and women. It is the perfect example of the inadequacy of legal reform in challenging the more immutable forces operating in the system.”

Authority becomes abuse when it cannot be challenged without harrowing personal cost. Swallowing her tears, Doctor Christine Blasey Ford described the high school party in 1982 where she said a young Kavanaugh tried to rip off her clothes and shoved a hand over her mouth to stop her screams. On Thursday, in testimony that gripped the nation, she told a panel dominated by white, male Republican senators that she was ‘terrified’ but had forward out of a sense of “civic duty”. She was subjected to a gruelling hours-long interrogation, reliving her trauma in front of an audience of millions.

She remained calm, dignified and good-natured, repeating that she “just wanted to be helpful”, as she was questioned by an outside prosecutor, whom the all-male Republican majority on the Senate Judiciary Committee had brought in to try to dodge the “bad optics” of having all white males question a female victim, as happened in 1991 with Anita Hill.

Kavanaugh, by contrast, was a howling disgrace, shouting at the few women on the Democratic side for daring to stand in the way of his ambition, bawling prompts from the abuser’s playbook.

“After every atrocity,” writes psychologist Judith Herman in her seminal work Trauma and Recovery, “one can expect to hear the same predictable apologies: it never happened; the victim lies; the victim exaggerates; the victim brought it upon herself; and in any case it is time to forget the past and move on. The more powerful the perpetrator, the greater is his prerogative to name and define reality, and the more completely his arguments prevail.”

The abuser shouts when he has lost the argument and must rely on threats. A display of rage from a man is strength; from a woman, a display of emotion is weakness, hysteria. Imagine if Hillary Clinton had hollered and hissed and shown her actual teeth at the Benghazi hearings. Imagine if she’d behaved like Kavanaugh, yelling and crying and carrying on like a sulky child who has hurt himself tripping over an inconvenient object – like the body of a teenage girl thirty years ago, who didn’t know when to shut her mouth. As the Republicans on the committee made clear, to them Kavanaugh is the victim here.

The bodies of young women have long been considered collateral damage on the journey to manhood. Now, panicked men are lining up to insist not just that Ford and the other accusers are lying about this assault – which Kavanaugh himself denies – but also to say that it was perfectly alright if it did happen. Boys will be boys, after all, and if we condemn Kavanaugh for a bit of after-school ultra-violence, well, shouldn’t we also condemn half the men in America? Our parents, our children, ourselves?

For those unsure where their loyalties should lie, this is the argument with most impact. Kavanaugh himself clutched for it in his hardly-combative interview on Fox News, where he said that pretty much everyone “makes mistakes in high school.” Well, of course we do. All of us did. But tell me, how many of us got away with it? How many of us moved on and learned? The question is not whether teenagers – or, come to that, grown men – do stupid, selfish things. The question is who has to pay for those ‘mistakes’ with their lives and their freedom, and who gets to stay ‘innocent’.


Not everyone is innocent until proven guilty – not when male innocence comes at the cost of women’s pain. When he was a circuit court judge, Kavanaugh tried to deny a 17-year-old pregnant immigrant girl the right to an abortion. Clearly, the consequences of decisions you make when you are, as Lance Morrow wrote in the Wall Street Journal, “under the blurring influence of alcohol and adolescent hormones”, are supposed to weigh heavier on girls than on boys.

Who gets to be innocent in a system like this? From girlhood onwards, women are the ones who are supposed to carry the responsibility and suffer the consequences for men’s teenage stumbles and errors of judgement, while boys are allowed to remain, in Kavanaugh’s words, “innocent”. Kavanaugh’s own prepared statement admits that he was “not perfect in high school”. Of course not. Young white men are people of whom perfection is not demanded.

That gendered doublethink runs right through the convoluted core of the story we call justice.

It is is true only for white boys, of course. Before a law that is supposed to be impartial, young men of colour learn not to expect to leniency on account of their youth, their hormones, their misreading of the situation or, come to that, their utter innocence of any crime whatsoever. This double standard has everything to do with punishing black youth and nothing to do with protecting women.

In 1989, not long after young Brett Kavanaugh was attending high school parties at which, according to one of his accusers, young girls were drugged and gang-raped, five black teenage boys were arrested in New York for a crime they did not commit. The “Central Park Five” case, which ended with the wrongful imprisonment of five young men of colour for the rape of a white woman, gripped America.

Donald Trump, then a businessman in New York, paid a reported $85,000 to place a full-page advertisement in the city’s newspapers calling for their execution. “I want to hate these muggers and murderers,” wrote Trump in the advert, which ran before the boys had even been charged. “They should be forced to suffer and, when they kill, they should be executed for their crimes.”

“They must serve as examples so that others will think long and hard before committing a crime or an act of violence … what has happened,” Trump wrote, “is the complete breakdown of life as we knew it.”

Today, Trump is insisting that the accusations against Kavanaugh are suspect. The same propaganda operation that promised to send Hillary Clinton to jail for using the wrong email server is insisting that the allegations amount to a cooked-up character assassination.

So whose suffering matters? Whose bodies deserve protection? Who gets to make mistakes, and what kind? Whose youth and foolishness is an excuse, and whose a condemnation? And is one wealthy and powerful man’s potential failure to attain even more wealth and power considered more of a loss to society than the life and dignity of these young women?

One year after the first public allegations of rape and assault against super-producer Harvey Weinstein, entitled patriarchy has found its ultimate test case. This is not just a creepy comedian trying to sneak back into showbusiness like Louis CK recently did, making a joke about rape whistles in his goddamn comeback gig, adding insult carefully and deliberately to injury as only an artist can.

But Kavanaugh is different. Kavanaugh is not applying for a position in any old office, or on any old stage. Kavanaugh’s is a case where the comfort and dignity of one powerful man must be weighed against the safety and humanity not just of one accuser, nor even of his accusers, but of every woman in the United States.

This is a live-action, public inquiry into the nature of justice itself, and whether it should ever have room for women and girls in a world where men as a group have for a long time been permitted to define women’s experiences for them, both legally and otherwise.


Kavanaugh’s nomination came with an implicit mandate to strip women and girls of their rights to reproductive autonomy. During the campaign, Trump promised to appoint judges who would reverse Roe vs Wade, the landmark Supreme Court decision which made abortion legal in America.

Kavanaugh, under questioning, squirmed out of the issue – but those trying to force his nomination have staked their political future on overturning Roe, and this may be their last chance. There may be no time now for them to find another nominee before the mid-term elections in November, when polling indicates Republicans may be in danger of losing control of the Senate.

If confirmed, Kavanaugh will deliver a conservative majority on the court with ultimate jurisdiction over the interpretation of laws in the world’s largest superpower. He is seeking not just to represent but to embody a justice system that can literally revisit and reverse the question of whether or not millions of American women deserve bodily autonomy, and it is becoming increasingly clear that his adult life allegedly began with absolute disregard for the agency of his female peers.

If the MeToo movement has taught us anything, it is that there is rarely perfect overlap between what is legal and what is ethical. The job of Supreme Court Justice is precisely to make sure that ethics and legality are brought into line by interpreting the laws and reconciling them with the US constitution. How is anyone meant to trust Kavanaugh to hold others accountable when he has demonstrated that he cannot do the same for himself?

Well, perhaps that’s the point. For Kavanaugh’s supporters, he represents the right sort of authority, where powerful aristocrats have each other’s backs. For Kavanaugh’s supporters, a snarling, entitled man who refuses to hold men like himself accountable for hurting women is the ideal judge to hold women accountable for daring to seek agency over their own bodies. It only looks like hypocrisy from the outside. In fact, there’s a chilling moral consistency at play.

What seems so obviously like abuse to so many of us reads like authority to those who believe that rich men have the right to dictate and maintain the social order. This has long been the logic of justice in a world where (white) men have always had the power to define women’s experience for them. A world where the majority of rapes go unreported and the majority of those that are reported go unpunished or even uninvestigated, while any woman bringing a charge of rape or assault can expect to suffer even further for reporting the crimes committed against her.

“The legal system,” as Herman observes, “is designed to protect men from the superior power of the state but not to protect women or children from the superior power of men. It therefore provides strong guarantees for the rights of the accused but essentially no guarantees for the rights of the victim.”

Critics have asked why Christine Blasey Ford, Kavanaugh’s first accuser, chose to remain silent for so long, and why she tried to remain anonymous at first. The answer is is, of course, fear – not for her good name, but for her life. Ford has now had to leave her home with her family because of death threats. She, like Anita Hill before her, will forever be the woman who accused a powerful judge of rape, and had her sanity and credibility publicly questioned, her sexual history vivisected, her life upset forever.

That she chose to come forward anyway, knowing what would happen, was an act of courage and rebellion. It always is. To name someone as your abuser is a direct challenge to power in its current form; the more powerful the abuser, the more perilous the challenge.

President Trump, a man not world-renowned for his sense of empathy and restraint, expressed fellow feeling with Kavanaugh. This is perhaps understandable: the president has to date been accused of assault by at least nineteen women and, indeed, boasted about it – before the election he went on to win regardless.

Trump, who filled his White House with a rogue’s gallery of crooks and fraudsters, who supported the senate bid of a credibly accused child-molester, does not see why ignoring the human agency of some girl or girls should bar a man from high office, and nor do a great many of Kavanaugh’s defenders on Capitol Hill. To men like this, the outrage is not that women and children were hurt, but that men of good standing were inconvenienced.

When abusers cannot easily dismiss their own abuses, they reframe the issue, saying not simply that abuse does not occur, but that it doesn’t matter. Because when has it mattered?

When has it mattered what men do to the women in their lives, or in their past, or in their way? What does one girl’s suffering matter compared to his potential discomfort at being asked to change or apologise? He was young; he was just a boy, and anyway, she’s only a girl. He has a bright future. Or he’s grown and has a brilliant career. Or he’s older and has an important legacy. He was just a boy. And she’s only a girl. His story is what matters; she must find a way to live in its margins.

This is how power operates in a rape culture. And this is why a culture of sexual violence and social exclusion of victims cannot be separated from the context of autocracy.


None of this is an accident. Women’s sexual agency is a key voting issue for Bible-belt republicans who believe that women and girls should not be allowed to choose whether and when they bear children. The Republican Party stands or falls on this issue, as does what democratic credibility remains to the Trump regime.

There is enough evidence to suggest that without the promise to put forced-birth advocates like Kavanaugh on the Supreme Court, all the Russian bots in the world could not have sent the Hog-Emperor of Rape Culture to the White House. There is a reason that the regime’s first act in power was to reinstitute and expand the “global gag rule” forbidding American aid to overseas organisations that support reproductive choice. Photocalls from the announcement of the rule’s reinstatement, a promised sop to Trump’s ornery evangelical base, showed a room full of grinning old white men watching the world be set back on what, to them, must have looked like its proper course.

Trump is not the first president to sell women’s autonomy to purchase his own power. In fact, this is one of the only respects in which the Trump presidency is quite normal. What is normal, though, is not the same as what is ethical, and certainly not the same as justice. Not, as American children still chant every day as part of the Pledge of Allegiance, “justice for all.”


The logic of the autocrat and the logic of the serial abuser are near-identical. Both behave as if they are entitled to grab whatever they want from whoever they can subdue, entitled to to power over the lives of others, and if they aren’t given it freely, they are entitled to take it by coercion, threat or force.

If these men run foul of the rules, they are entitled to rewrite those rules so that they only apply only to other people. This, literally, is what “privilege” means: it is from the Latin for “private law”. You don’t have to be above the law when you can reshape the law around you.

It’s important to remember that this snapping, snarling man, outraged that any woman would dare hold him responsible for his past behaviour is a judge supported by less than a third of voters, nominated by a president who failed to win the popular vote with or without Russian collusion and vote-rigging.

The autocrat’s approach to the consent of the governed is the serial rapist’s approach to the consent of women and children. Nice if you can get it; but if you can’t, take what you want and call it justice, because the whole world’s your “locker-room”.

The way that Kavanaugh is being forced on America without the consent of the people bears more than just an aesthetic resemblance to the way women are denied agency over their own bodies, denied their sexual sovereignty. It is part of the precisely same process.

Sexual violence and complicity with the perpetrators of sexual violence is at the heart of the logic of power as it has been practised for generations in the United States and beyond. The young men, those who said things like, as Kavanaugh said of his school, “what happens at Georgetown Prep stays at Georgetown Prep”, those who chant “no means yes, yes means anal”, the motto of Kavanaugh’s fraternity at Yale, at parties, who grow up convinced of their entitlement to the bodies of their female peers, these men go on to lead the institutions and write the laws that define how much and at whose hands other people are permitted to suffer. This is the definition of rape culture, its hegemonic place in the patriarchal structures that govern our society at every level.

The rest of us allow this to happen, because we have been well-trained in the art of looking the other way. It is always easier to sympathise with abusers than it is with victims of abuse. All we have to do is nothing at all. That’s one strategy for surviving patriarchy. It’s a strategy millions of us choose every day. But it is not justice. Not justice for all.

And now that ancient injustice is building towards its own dreadful denouement. The struggle between democracy and tyranny and the struggle by women against male violence are one and the same. They always have been, and the Kavanaugh case makes it clear. And it is clear, also, that, there is a decision ahead of every one of us.

Trump and his tame Republicans can still send Kavanaugh to the Supreme Court. But they cannot do so without making their real agenda far more legible than they’d like. It is an agenda that is interested in power, not justice. In being strong, not in being right. In men’s comfort, not women’s safety. They can take power by force, and they clearly mean to do so. What happens after that, though, is no longer in their control – not in a political reality where women’s silence is no longer a given.

What happens next, for anyone who once believed that male power was as steadfast as the previously-predictable , really is “the complete breakdown of life as we knew it”. Kavanaugh may well get to the Supreme Court. Powerful men can and do continue to stand for their mutual comfort over women’s safety; Republicans can and will continue to insist that their pet pro-lifer is the right man for the job. The question is not if power will change now that we have seen its true face, but how long those of us without it will stand by and watch authority become abuse at the highest level. It is always easier to take the side of abusers. It is always easier to do nothing.

What will you do?

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