Does criminal behavior carry an expiration date?

I recently wrote, in regards to Brett Kavanaugh’s Supreme Court nomination hearings, “I have reservations about how we apply 2018 standards to 1980’s adolescent behavior.” A reader who objected to that statement (“…young men in the 80’s knew when they were crossing the line…the white male privilege was unbounded. Every woman…has a story…about being assaulted or bullied or coerced or manipulated sexually…”) inadvertently proved my point. I am not condoning the behavior, nor denying its criminality. I am simply stating it was common at that time and rarely held consequences for the perpetrators.

Since then, some laws may have changed, but social standards have changed even more. Although the past week has illustrated that we are far from parity with regards to sexual dynamics, we are trending in that direction. Regardless what guys got away with in the past, I’d like to think that today harassment is not tolerated, that assault is prosecuted.

But what is our responsibility to address the past? Three imperfectly aligned forces are at play: law; social custom; and moral truth.

Our legal system prescribes statues of limitations that restrict how far back one can reach to bring charges against another. There’s merit to this idea; people’s memories are fallible, evidence fades, evildoers reform. But there are also problems. The statue of limitations often expires before victims most traumatized by sexual crimes of power can gather the strength to accuse.

Societal norms usually evolve ahead of the law. There was a time when it was okay, in certain societies, to burn accused witches, chop off heads at public executions, define women as property, lynch Black men, gas Jews, taunt homosexuals, spank children. Although these actions may still occur, they are no longer socially acceptable.

Moral truths offer the most steadfast barometers of our species. When transgressed, they supersede mere statutes. Nazi war criminals were extradited, tried, and convicted decades after their atrocities; their crimes so horrific they eclipsed legal time limits. More recently is the movement to remove the statue of limitations in cases of sexual abuse by priests. Advocates argue that since the victims were young and the Catholic Church devoted so much time and money to covering up the crimes, time limits should be set aside.

People in power determine the laws, and how those laws get applied. When the power dynamic shifts, either abruptly—as in the case of Nazi Germany—or gradually—as in the ascendance of women’s rights—behavior that was once tolerated becomes unacceptable, illegal, even punishable. Yet we have no consistent way to punish the perpetrators or alleviate the victims. Admitting guilt and asking forgiveness is a logical starting point, although in our era of deny, deny, deny; even that is difficult to obtain. Reparations are an option; I’ve heard cogent arguments from African-Americans advocating that means to redress slavery. But making the grandson of the slave owner pay the grandchild of the slave flies in the face of the Biblical admonition that “the son shall not suffer the iniquity of the father” (Ezekiel 18:19-20). But perhaps it should … since the father’s sin established the social and economic advantages that the son enjoys.

The legal statute of limitations to try Brett Kavanaugh in a court of law for his accused harassment is long passed. Instead, he has been tried in the court of public opinion where, because he aspired to a position of exalted authority, behavior that was ‘common’ despite being illegal should not be overlooked. Was this fair? I think so. Supreme Court justices make judgment over us all: they are exempt from any statute of limitations. We can demand of them a higher standard.

But the court of public opinion cannot convey clear verdicts, and its results satisfy no one. Brett Kavanaugh has been damaged, a bit. Some will consider his punishment insufficient, others will portray him as the victim.

Because 1980’s society dismissed harassment and assault as ‘boys being boys’, especially among privileged white boys, and 2018 society confirms that the most effective response to any past allegation is denial, Justice Kavanaugh will never receive a conclusive judgment, his accusers will never receive even an apology, and society will never shape a unified story of these events.

I am certain that, even in 1980, the boys in question knew this behavior was wrong. But they also knew they could get away with it, well past the statute of limitations, all the way to the Supreme Court. It is too late to convict them of their crimes. But in elevating Brett Kavanaugh, Jeff Flake, Susan Collins, and others missed a key opportunity to set a higher standard; one that the highest court in our land deserves.