O.W. Holmes Jr. and #MeToo
Holmes should be a hero, as yet unsung, of the #MeToo movement. He is sensitive and aware of the embarrassment and shame felt by a victim of sexual assault. He provides new support for any victim criticized for not reporting an incident sooner. Holmes's comments should be cited in any brief on the point.
April 20, 2018 at 02:40 PM
4 minute read
When you read for fun and relaxation, you never know what you will stumble across. It is one thing to read as part of research on a particular subject, like hunting up authority for a legal proposition, which we all have done quite often. Then you know, more or less, what you are looking for. You may or may not like what you find, but at least your aim, your objective, is clear.
It is quite another thing to read as a form of leisure, a free play of the mind, and discover something totally unexpected. When that happens, you are surprised—happily—and taken aback. You learn once again the meaning of serendipity. It is one of the great pleasures of reading.
I recently had this experience in a legal context. It was a slow day at the office, so I took down one of the old books on my shelves, a collection of speeches by Oliver Wendell Holmes Jr. At random I started to read one called “Law in Science—Science in Law,” a speech he gave in 1899, when he was 58 years old, to the New York State Bar Association, later reprinted in the Harvard Law Review. Among the many fascinating topics Holmes discusses are exceptions to the ordinary rules of evidence. One such exception, Holmes says, is allowing the claim of a rape victim—“a ravished woman” in his 19th century phrase—to be corroborated by proof of contemporaneous complaint.
This is what Holmes, not yet a U.S. Supreme Court Justice, but then still Chief Judge of the Massachusetts Supreme Judicial Court, had to say:
“We are told that the outrage is so great that there is a natural presumption that a virtuous woman would disclose it at the first suitable opportunity. I confess that I should think this was about the last crime in which such a presumption should be made, and that it was far more likely that a man who had had his pocket picked or who had been the victim of an attempt to murder would speak of it, than that a sensitive woman would disclose such a horror.”
I read that passage, 120 years old, and was stunned. It is as relevant and as timely as tomorrow's newspaper. It is as insightful and as realistic as can be about human nature.
Holmes is saying, in his inimitable style, that we should neither expect a woman to promptly talk or complain about a sexual assault, nor hold it against her if she does not. He challenges the supposed “natural presumption” to the contrary. He says, in effect, that the “natural presumption” should be exactly the opposite: that an innocent victim of a sexual assault (a “virtuous” or “sensitive” woman) would, because of her nature and the nature of the crime, be even less likely “to speak of it” or “disclose it at the first opportunity.”
For these reasons, he thinks sexual assault would be “about the last crime in which such a presumption should be made.”
Holmes should be a hero, as yet unsung, of the #MeToo movement. He is sensitive and aware of the embarrassment and shame felt by a victim of sexual assault. He provides new support for any victim criticized for not reporting an incident sooner. Holmes's comments should be cited in any brief on the point. He is eminent authority for what should be common sense based on applied psychology and human experience. His remarks are another example of his signature line that, “the life of the law has not been logic; it has been experience.”
Some women may object to using the words of a dead white male judge from another century as authority to support contemporary cutting-edge women's issues. Holmes understands the problem. Elsewhere in the same speech, Holmes bemoans the difficulty of persuading judges of anything new.
“Judges,” he says, “commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed.” But, adds Holmes, “Every living sentence which shows a mind at work for itself is to be welcomed.” So too, every legal authority that helps #MeToo should be welcomed.
Thus encouraged, I will now once again pick up my collection of Holmes's speeches, and who knows what other fascinating, unexpected treasures I will find?
Daniel J. Kornstein is a partner at Emery Celli Brinckerhoff & Abady and the author of “The Second Greatest American,” a book about Justice Holmes.
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