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The danger of the ‘he said, she said’ expression

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I teach my law students that language matters. They know that manslaughter and murder are very different offenses. But the meaning of some legal terms can mean something else. For example a corporation is sometimes a person and a statement is sometimes an enforceable promise. Other terms are not strictly legal, but they surround legal matters and they shape legal outcomes. Like the expression “he said,she said.”

When stories come out such as the one Christine Blasey Ford told about an alleged sexual assault by Brett Kavanaugh during their high school days, the expression “he said, she said” is used a lot.

{mosads}Even most recently, Rachel Mitchell, the widely described female prosecutor, released a report that characterized the Ford-Kavanaugh case as “even weaker” than a “he said, she said” case.

We need to stop using that phrase. Not just to describe allegations like those in the Ford-Kavanaugh case, but to describe any such incident. Or anything, really.

“He said, she said” implies that we throw up our hands in capitulation — the truth simply cannot be known. It’s one person’s word against another person’s word  and that’s all there is to it. In the case of Kavanaugh it did not even matter that there were additional “she’s” who “said” because their stories were also dismissed.

Our usual talents and methods for determining credibility do not simply vanish when we need to assess allegations of sexual activity behind closed doors. Motives to tell the truth or to lie still matter. We can still judge speakers’ patterns of honesty or dishonesty, the directness versus slipperiness of their answers and their recall of detail versus complete lack of memory. This is the bread and butter of trial testimony, why juries determine facts and appellate courts restrict themselves to the law. That’s because the latter have not seen and heard the witnesses in order to judge their credibility.

Investigators also look for corroborating evidence to determine whose story is more believable. Corroborating evidence does not require eye witnesses and it has never has been understood so narrowly — despite recent assertions of some Kavanaugh defenders. In the Lewinsky-Clinton affair, corroborating evidence showed up as a blue dress. Usually, it is much weaker than that and must be pieced together with other corroborating evidence, but it is no less real.

Thinking of the Ford-Kavanaugh conflict as a “he said, she said” case lent dangerous support to the Senate Judiciary Committee leadership strategy of limiting its inquiry to hearing Kavanaugh and Ford’s stories. This was especially astonishing given that Ford’s story placed another witness in the room. The committee clearly wanted to move on. They wanted to give the appearance of listening to Ford’s account, but since it’s “he said, she said” what are they to do?

Writing in 1998, William Safire traced the origins of the term from perhaps the 1940s, with wider popularization in the 1970s. It used to refer to ”cross-gender discourse” when women and men use the same language but with different meaning. It clearly doesn’t mean that now. The phrase apparently gained its popularity during the Anita Hill-Clarence Thomas hearings because the Hill-Thomas hearings were dismissed as “he said, she said.”

The expression is cavalier, crude and dismissive of sexual misconduct. It is now widely used as a catchy, almost cute, “in the know” description for all sorts of cases — from tax to employment discrimination and beyond — in which conflicting testimony makes discovering the truth difficult. But we all know the reference harkens to the difficult-to-prove allegations of sexual harassment or assault. And the “he said, she said” mindset nearly always favors the alleged assailant who is nearly always male.

Imagine a point in the future when you’re driving your 10-year-old daughter or granddaughter somewhere and she hears the expression on the radio and asks, “what does ‘he said, she said’ mean?” If you are candid, you will need to say it means that sometimes one person takes sexual advantage of another, usually a man against a woman and the person who is harmed has to just live with it.

It is not just an expression. Words shape outcomes and attitudes. In 2018, the phrase now dominates our culture. A mere “swearing match” would be a welcome relief.

Lois Shepherd is a professor of law, professor of public health sciences and the Wallenborn professor of biomedical ethics at the University of Virginia and a Public Voices Fellow with the Op-Ed Project.

Tags Brett Kavanaugh Kavanaugh hearings Supreme Court nomination

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