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Kavanaugh and the 'boys will be boys' sentiment is a poor excuse for bad behavior

Kavanaugh and the 'boys will be boys' sentiment is a poor excuse for bad behavior
© Greg Nash

The accusation that Brett Kavanaugh sexually assaulted someone while in high school is a bombshell, but it is too early to know what effect it will have on his confirmation to the Supreme Court. It is, however, not too soon to say that the position, as reported by the New Yorker, of Sen. Dianne FeinsteinDianne Emiel FeinsteinThe Hill's Morning Report — Presented by the Coalition for Affordable Prescription Drugs — Pollsters: White college-educated women to decide if Dems capture House Trump, Feinstein feud intensifies over appeals court nominees American Bar Association dropping Kavanaugh review MORE’s (D-Calif.) staff, “that the incident was too distant in the past to merit public discussion” is hardly satisfactory.

Seemingly it has become common-place for male politicians to try to brush aside past bad behavior as irrelevant incidents from childhood, we should no longer tolerate such excuses.

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Someone’s past, including actions done prior to reaching age 18, can shed light on his or her character and is certainly relevant when considering Supreme Court appointments. Feinstein’s office may have had a number of good reasons for sitting on the allegation since July, including protecting the privacy of the accuser, but the “time-heals-all-wounds argument” offered by staff is troubling.

Kavanaugh is not the first person seeking high office to face questions about actions they took when they were younger. Former Gov. Mitt RomneyWillard (Mitt) Mitt RomneyComey donates maximum amount to Democratic challenger in Virginia House race Hillary Clinton made rural voters feel 'ashamed,' says former Boston Globe editor Dems target small cluster of states in battle for House MORE (R-Mass.)  was accused of leading an attack on a fellow student who did not fit in, forcibly cutting off the kid’s hair while other boys held the kid down.

On the campaign trail, Romney issued a generic apology for doing “some stupid things in high school.” When he was a member of the Delta Kappa Epsilon, George W. Bush defended the fraternity branding new pledges as part of their initiation process to a reporter for the New York Times.

When asked about whether he used drugs in his youth, candidate Bush said, “I'm not going to talk about what I did as a child. It is irrelevant what I did 20 to 30 years ago.” But is Bush (and now Feinstein’s staff) right that after two or three decades the past is irrelevant?

As a society, we perhaps have come to agree with Bush when it comes to drug use. While there was a lot of consternation after Bill ClintonWilliam (Bill) Jefferson ClintonCybersecurity for national defense: How many 'wake-up calls' does it take? Who's in control alters our opinion of how things are Obama adviser jabs Hillary Clinton over Monica Lewinsky comments MORE famously claimed that he smoked marijuana but “didn’t inhale,” not much was made of Obama’s admitted drug use in high school. But should society really adopt the same “clean slate” approach to all youthful bad behavior, including allegations of bullying or sexual assault?

My view is that “boys will be boys” is a poor excuse for bad behavior and that even decades later some actions speak to who a person is and to their moral compass. Progressives are likely to have very split reactions to this allegation.

On the one hand, they might have some (limited) hope that this accusation might derail Kavanaugh’s confirmation. On the other, the notion that someone should be barred from a job based on what they might have done decades ago when he or she was underage sits uncomfortably alongside progressive campaigns to ban the box in the employment context.

Personally, I am less split because boys know or should know the difference between right and wrong well before high school. They may be underage, but they are hardly toddlers. Drug use, to the extent it might be victimless crime, is different from using power to harm someone else. A high school student who bullies or assaults another person is doing something wrong, period.

There are of course those who will disagree, who will argue that something that may or may not have happened a long time ago during childhood is indeed irrelevant. But if it is relevant that Kavanaugh is a committed girls’ basketball coach, someone who is good to have in the carpool, and has the support of his former professors and alma mater, then it should surely matter that he is being accused of sexual assault.

My own views go even further than that. I was bullied in middle school; stuffed in trash cans and called “screech” (the name of a nerdy sitcom character). I have mostly forgiven my tormentors, though forgiving “sly” has been hard and I likely will not forgive the teachers who just looked the other way under the “that is what boys do” theory.

For some reason I was left alone in high school. But there was a boy, “Daniel,” who just happened to be smaller than all the other boys in the school. He was bullied constantly. One day a group of boys stripped Daniel naked, pinned him down, and sprayed maple syrup and trash on him. Daniel never turned in any of the boys. I thought I knew who had participated in this primitive version of tarring-and-feathering but I was not sure, so I am embarrassed to say I did nothing. I later found out that “Sam,” arguably the smartest student in my class, was an active participant in Daniel’s bullying. Sam was someone many girls wanted to date, someone the teachers adored, and someone I looked up to. Daniel quickly forgave Sam and the other boys who bullied him and went on to become fairly popular. We all make mistakes in high school and do things we regret, that is part of what high school is all about. But I continue to think that though he was a child at the time, part of Sam’s character was revealed by his actions then.

Again, politicians and members of the public are unlikely to have uniform views about the relevance of these newly public allegations that Kavanaugh sexually assaulted someone while in high school. Republicans are likely to try to push this under the rug and wrap up the confirmation as quickly as possible.

And some Democrats are likely to agree, publicly or privately, that childhood behavior is irrelevant. My own view is that we should not continue to allow men to hide behind the excuse that they were boys at the time. We need to teach all children that they have to treat others with kindness, respect, and love. Boys should not get a free pass to behave badly.

As Professor Anita Hill wrote on Friday about the accusation leveled against Kavanaugh, “Given the seriousness of these allegations, the government needs to find a fair and neutral way for complaints to be investigated.” If Congress decides to rush forward, to not investigate, it will be saying once again that boys are not subject to the rules of decency and humanity that ought to be expected of everyone, including — perhaps especially including — men seeking positions of power.

Ezra Rosser is a law professor at American University Washington College of Law. You can follow him on Twitter @EzraRosser.