Explainers everywhere are working overtime to preserve patriarchal values. One popular strategy that continues to crop up states that, “rape is different from other crimes because it’s a ‘he said/she said’ situation.” This faulty line of reasoning reveals three things: an assumption that in disputes between men and women, men must be given the benefit of the doubt; an assumption that all rapists are men and all victims women; and glaring ignorance about how the U.S. justice system actually operates.

The justice system runs on testimonial evidence, which is exactly what “he said/she said” is. What makes a “he said/she said situation” different from any other dispute between witnesses? In a word: Nothing.

Whether it’s a small claims case between neighbors over dog poop, or a death penalty case of murder in the first degree, witnesses will give testimony, and each side’s testimony will usually oppose the other side’s testimony. If everyone agreed, there would be no reason to be in court to begin with.

Inevitably, some of these disputed cases will pit “he said” testimony against “she said” testimony. We hear the “he said/she said situation” line exclusively in sexual assault cases because men have been accustomed through history to the benefit of the doubt (if not outright commendation) in heterosexual rape cases.

Cases are decided every day based solely on witness testimony. The “lack of corroborating evidence” for testimony — cited by Senator Susan Collins and others during the Brett Kavanaugh hearings as a potential violation of Kavanaugh’s rights — doesn’t mean a denial of due process, the fair procedures that the  all citizens are entitled to, nor does it void a presumption of innocence.

To be clear, testimony by a competent witness is sufficient evidence on its own.

The legal definition of “competent” has evolved over the last one hundred fifty years to mean, simply, being able to perceive and communicate what happened. The “he said/she said” line is likely a holdover from when certain groups of people were classified as incompetent witnesses by virtue of their status. In ancient Athens, for example, women were excluded from courts entirely. And in the 21st century, Jewish law in Orthodox and Conservative communities still holds that women are not competent witnesses in most cases.

To be clear, testimony by a competent witness is sufficient evidence on its own.
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Excluding people of color from testifying was a common practice in the States, and it was legal until passage in 1868 of the 14th Amendment. Why? As one court held, it was because of “their crude and monstrous superstitions, which rendered them incapable of feeling or appreciating the obligation of an oath, as felt and appreciated in a Christian community; and it was not, therefore, deemed safe to receive them as witnesses, even against one another.”

Under similar rationale, atheists of any color were also deemed incompetent to testify, beginning  in the States during colonial times and extending in many jurisdictions through the mid-nineteenth century. Denying people the right to testify, or questioning the credibility of a particular demographic, has always been a way for courts to strengthen social hierarchies like institutional racism and sexism.

The 'he said/she said' line is likely a holdover from when certain groups of people were classified as incompetent witnesses by virtue of their status.
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While women and people of color are now, legally, competent to testify, barriers against them persist. Leigh Gilmore, author of Tainted Witness: Why We Doubt What Women Say About Their Lives and a distinguished visiting professor at Wellesley College, writes that sexual and racial violence are seen by some as “belonging to a separate ordered of judgment.” Moreover, gender and race stereotypes are “sticky judgments,” so ubiquitous that we can’t see them, so prevalent that they seem “neutral.”

When asked to share some thoughts about how doubting women’s testimony creates a benefit for men in the justice system, she says,  

“[G]ender bias makes doubting women feel rational and virtuous rather than unjust. ‘He said’ carries more weight than what ‘she said’ because women’s testimony is demeaned and discredited in ways that men’s testimony isn’t. . . .We have vividly seen with the #MeToo movement the effects of this bias: the lack of transparent and fair processes for women to report sexual violence, the blaming of victims for bringing forward accusations of sexual assault both “too soon” and risking men’s reputations and also “too late,” which disregards all the mechanisms for silencing and shaming victims.”

In this view, witnesses from the dominant group get the benefit of the doubt. Even though it’s a legal truism that “most facts are proved by testimony,” and that even in cases where physical evidence exists, “the human recital — viva voce — is often crucial to the establishment of its authenticity or significance,” testimony from members of marginalized groups in the States and elsewhere has often been cast as unreliable, or simply excluded from consideration.

As a former trial attorney, I’ve seen how the he said/she said dynamic is replicated in cases involving parties from opposite ends of a hierarchy. It could be “white cop says/black kid says,” or “boss says/employee says,” or “priest says/choirboy says,” or “corporate polluter says/environmental group says.” In any case, the member of the dominant class gets the benefit of the doubt. Dr. Gilmore connects this bullshit phenomenon to the “reasonable man” standard in U.S. law:

Take the legal fiction of the ‘reasonable man’ whose motives and actions juries are instructed to consider as the standard for deciding, for example, cases of self-defense. When women claim self-defense in cases where they kill a man, often a violent intimate partner whom they know is intent upon inflicting violence on them — an act that meets the self-defense standard — juries often fail to apply self-defense accurately because they doubt women were justified in using force to defend themselves for two reasons: the assumption that the woman overreacted or that the man’s life, to be blunt, is worth more. We see this in rape cases in lenient sentencing for men like Brock Turner whose father was outraged that his son would be punished for raping an unconscious woman, an act he described as ‘a steep price to pay for twenty minutes of action.’

Just imagine reactions to someone claiming that a prison term was a “steep price to pay” for a woman who took only twenty minutes to torture a man. Flipping the script on cultural assumptions is one way of highlighting their injustice. Dr. Gilmore expects a backlash.

Gender and race stereotypes are 'sticky judgments,' so ubiquitous that we can’t see them, so prevalent that they seem 'neutral.'
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Bias is woven into all the processes for judging what women and people of color say about their lives; so is the unfair privilege that powerful men receive in all aspects of life. In the leveling of this imbalance, men will likely feel aggrieved by the loss of this unearned and undeserved testimonial credit, as will all of those habituated to thinking that male elites deserve this credit.

Victims of racist and sexual assaults will continue to risk further abuse in police stations, courtrooms, congressional hearings, and the media until we explode all versions of “he said/she said” dynamics. And that means a constant, close examination of how media and justice systems treat women and people of color when they come forward to testify.

A few days before his final confirmation hearings, during a nationally televised interview with FOX News, soon-to-be Supreme Court Justice Brett Kavanaugh was asked about Julie Swetnick’s allegation that he attended parties in high school where he touched girls “without their consent” and played a role in facilitating gang rape. Kavanaugh dismissed Swetnick’s memory by describing it as “ridiculous and like something from The Twilight Zone,” Rod Sterling’s classic science fiction series which, according to its opening sequence, took place in a “fifth dimension, beyond that which is known to man.”

Kavanaugh’s comparison was unfortunately apt for how he and other men in power reacted to the recollections of Swetnick, Deborah Ramirez, and Dr. Christine Blasey Ford over the past few weeks. This was especially the case during those final hearings, when Senators on all sides of the political spectrum joined the then-nominee in suggesting that Dr. Ford’s sexual assault did not take place in the realm of normal American life—the wholesome world they all apparently live in—but rather an alternate dimension of the United States in which men violently dominate women with regularity.

This sort of illogical thinking was common on The Twilight Zone, which despite its surreal set-up was very much about the human condition. It depicted extreme scenarios like alien invasions and dystopian futures to illuminate the terror lurking in our cookie-cutter American neighborhoods; the propensity of people to bury their insecurities beneath the desire for power—with little regard for its impact on others. Or what Serling himself once described as “man’s seemingly palpable need to dislike someone other than himself.”

On the Republican side, this self-righteous perspective was maintained by bolstering Kavanaugh’s claim to being an all-American Christian kid at 16; a boy living universes away from the kind of parties where drunken teens force themselves onto classmates. In his testimony Kavanaugh painted his drinking and partying as completely normal for a young man, and Republican Senators were eager to accept and celebrate this (very) limited picture of normative white masculinity in 1982.

Meanwhile, the Democrats created their own image of Kavanaugh as an abnormally aggressive man. Men like Richard Blumenthal asked him about excessive partying, lewd yearbook quotes, and how often he drank to the point of forgetting parts of the night before, but each time Kavanaugh simply denied he did anything excessively at all. He angrily maintained that he did not live in that other dimension, but only the one where top-of-their-class young men occasionally have some beers with their bros. Kavanaugh went to great lengths to emphasize this American manliness, making sure to mention details like “Roger Clemens was pitching for the Red Sox” when asked about a booze-filled baseball trip he organized in law school.

The Senators failed to name then—even as they commended Dr. Ford’s bravery and spoke at length about what her message might mean for other survivors nationwide—the reality that “normal” American men not only like beer and baseball, but also regularly hurt women.

Senators suggested Dr. Ford’s sexual assault did not take place in the realm of normal American life, but rather an alternate dimension of the United States in which men violently dominate women with regularity.
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In fact, only 10% of American men list baseball as their favorite sport today, but a 2017 study found that 32% of college-aged men would have “intentions to force a woman to sexual intercourse” if they could get away with it. And though beer is the drink of choice for 41% of Americans, a staggering 81% of women in this country report being sexually harassed. 1 in 6 American women have survived an attempted or completed rape, the perpetrators of which are overwhelmingly men (and mostly white). All of which is to say, misogyny is at the very least as American as beer and baseball.

Yet, as Kavanaugh performed his exasperation at being linked to sexual violence, the men in the room never admitted that the scene Ford described was very familiar to them as well.

When Kavanaugh posed a threatening question back to Amy Klobuchar about her drinking habits, none of the other men chimed in to affirm that yes, they too have silently listened to, witnessed, or participated in the dehumanization of women. Men like Sen. Dick Durbin never countered the narrative that the multiple accusations against someone like Kavanaugh were “absurd,” but rather set out to prove that this straight white man, who attended elite schools and has remained in positions of power his entire life, would be unique in his behavior if he once used that power to hurt a person of another gender.

Misogyny is at the very least as American as beer and baseball.
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That is the lie—the binary of “good” and “bad” masculinity— that men so often hide behind. The same illusion, compounded and mirrored by the lie of white innocence, which carried a racist misogynist to the presidency two years ago even after he admitted to sexual assault. It’s no surprise then that President Trump himself has openly attacked the credibility of the Democratic men since the hearing, saying “I watch those senators on the Democrat side and I thought it was a disgrace. Partially because I know them…They are not angels.”

The fear men have to speak the truth about power in this country, who has it and how they got it, ultimately bolstered Kavanaugh’s “twilight zone” case for the Supreme Court. He knew it and Trump knew it. Kavanaugh’s faux-shock at being among the accused worked in the same way as Trump’s claim to “locker room talk” before it, because the other men in the room insisted on maintaining their own facade of innocence—afraid that if they spoke about patriarchy, they too might get kicked out of the club.

That is the lie—the binary of good and bad masculinity— that men so often hide behind.
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In one of the more famous episodes of The Twilight Zone, “The Monsters are Due on Maple Street,” a seemingly perfect community is whipped into frenzied paranoia by a series of strange occurrences—beginning with a power outage and a little boy’s story about shape-shifting creatures—which ultimately leads them to turn on each other in search of the monster amongst them. The episode ends with a bloody brawl on Maple Street that exposes who these people really are.

Though many powerful men have reacted to the #MeToo movement by expressing fears of a “witch hunt,” the reality is that they themselves maintain the perception that some men are monsters worth stoning, while the rest are innocent bystanders. For instance, Matt Damon—who played Kavanaugh in a Saturday Night Live skit recently—once publicly worried about the “culture of outrage” targeting his friends in power, saying “there’s a difference between, you know, patting someone on the butt and rape or child molestation.” Which, just like Trump’s worrying for “young men in America,” expresses a desire for a hierarchy of masculinity rather than a willingness to look in the mirror.

Like those on Maple Street, the men in power in Hollywood and D.C. choose to ignore the systemic issue at hand, and instead focus on preserving their own position—regardless of how it might harm their neighbors. The Democratic men of the Senate, glad to use their five minutes during the hearing to perform their “decent” masculinity, were playing the same game as Kavanaugh: a game of avoidance and imagination. It’s not that many didn’t declare that they believed Dr. Ford, but that nearly all of them were unwilling to state that they have contributed to the culture which allows such violent acts to persist.

What patriarchy promises these men in exchange for this deflection, especially the white men, is the chance to play the hero on TV again (just like “good” Will Hunting). Meanwhile, Trump and his friends can confidently call survivors liars, knowing that the men around them will never expose the actual lie of masculinity.

But what might change if we weren’t afraid to connect sexual assault to that celebrated culture of drinking “brewskis” and playing football? What if we admitted on the largest stages that Brett Kavanaugh’s allegiance to American manhood is precisely why we should be terrified of giving him more power?

Among the most harrowing moments of Dr. Ford’s testimony was when she described Mark Judge’s actions—and inaction—while Kavanaugh was assaulting her in 1982. According to her account, Judge alternatively stood by laughing, encouraging his friend, and half-heartedly asking him to stop while Kavanaugh attempted to rip off her clothes. Dr. Ford even spoke of making eye contact with Judge at one point, hoping he might intervene. Yet he did nothing.

What if we admitted on the largest stages that Brett Kavanaugh’s allegiance to American manhood is precisely why we should be terrified of giving him more power?
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As long as men are unwilling to risk being as vulnerable in front of men as Ford and Anita Hill have been, the Kavanaughs and Trumps of the world cannot truly be challenged. They can yell and demand respect, because they know that we will adhere to the rules of the game.

To look on as someone is sexually assaulted, or to remain quiet as people are dismissed for sharing their stories of assault, is a dehumanizing way of being. Yet the illusion of normalcy, and the burying of empathy, is precisely how men have long cemented their power in this country. As the narrator says at the end of that episode on Maple Street, “the tools of conquest do not necessarily come with bombs and explosions.” Men are well-practiced and well-rewarded in maintaining our illusions.