The allegation that Supreme Court nominee Brett Kavanaugh, then 17, attempted to rape a 15-year-old girl at a high school party more than 30 years ago has produced a battle of dueling letters.
Last week, Sen. Charles E. Grassley (R-Iowa), chair of the Senate Judiciary Committee, released a letter written in defense of Kavanaugh. While the body of the letter consisted of three short paragraphs, the bulk of the document — one and a half pages — comprised a list of 65 women who were coming forward to vouch for Kavanaugh’s good character.
This letter provoked outrage from people who claimed that the testimonials had no bearing on whether the allegation was true, but it also produced another response. Three days later, more than 200 alumnae of the high school attended by Kavanaugh’s accuser — now identified as Christine Blasey Ford — penned a letter of their own, in which they threw their support behind her and demanded “a thorough and independent investigation” of the matter before the Senate’s planned vote on Kavanaugh’s confirmation.
What began as a story about the conflicting accounts of two individuals concerning an alleged case of assault seems to be turning into a story about which of those individuals can accumulate the greatest number of character witnesses. But what can these competing lists of names tell us about the events that allegedly took place more than 30 years ago, or any case of alleged assault? And what role are these testimonies playing — what role should they play — in hearings leading up to a vote on whether Kavanaugh should be appointed for life to the highest judicial position in the United States?
The fact that both sides are compiling such lengthy lists of character references may at first seem bizarre. After all, they tell us nothing about what, if anything, actually happened between Kavanaugh and Ford. But some unlikely history — the workings of medieval European law — sheds light on what these letters are intended to achieve.
In the Middle Ages, a person’s trustworthiness was determined by one’s standing in the community. That standing, in turn, was determined by a wide range of factors, including gender, social status and wealth, each of which could affect the number of people who were willing — or required — to vouch for a person’s good name in courts of law. These “compurgators” stood alongside participants in legal proceedings to serve as witnesses to their good character, and to lend weight to their sworn testimony.
In medieval courts, the number of people willing to stand as compurgators for the accused mattered. When the sixth-century Merovingian queen consort Fredegund was required to take an oath asserting the legitimacy of her young son, that oath was in turn supported by oaths sworn by three bishops and 300 other prominent members of Merovingian society (which thrived for centuries in early medieval Gaul in western Europe). Although probably only Fredegund herself would have known whether she was telling the truth, this overwhelming crowd of oath-helpers was deemed perfectly acceptable evidence of her standing in the community, and therefore satisfactory proof of her innocence.
Likewise, the number and status of witnesses to one’s good character could also determine what kind of ordeal — often a painful or dangerous physical test of one’s innocence — one was compelled to endure. Under the English king known as Ethelred the Unready, whose reign spanned the late 10th and early 11th centuries, any man with a bad reputation was required to undergo a harsher form of ordeal unless three “thanes” (royal retainers) were willing to swear to his recent good behavior, in which case he could undergo the more standard form of ordeal.
On the other hand, a person’s social status could also determine how many compurgators one was required to have to swear an oath in court. The 13th-century German law book known as the “Sachsenspiegel” makes clear that, while women might be permitted to swear oaths independently about matters concerning only themselves, in cases involving other parties, their oaths had to be supported by compurgators.
The notion undergirding this practice: Character mattered in determining the particulars of a legal matter and the veracity of claims. The more people willing to vouch for someone, and the higher the status of those people, the more that person ought to be believed.
Medieval legal compurgation provides a striking historical parallel with the lists of women compiled in support of Kavanaugh and Ford. Again, each person’s supporters seem to believe that vouching for his or her character will lend credibility to their claims.
But it’s the difference between the medieval and modern practices that is truly telling. Whereas medieval law codes often explicitly acknowledged that a person’s status affected his or her trustworthiness in the public eye, modern debates concerning a given individual’s credibility often seem to presume a level playing field, a dispassionate and objective vacuum from which issues of gender, race, power and class are excluded.
And yet we know from recent history — the Anita Hill hearings, the Brock Turner rape trial and the #BlackLivesMatter and #MeToo movements — that a wide range of prejudices can affect who is viewed as more (or less) trustworthy in the court of public opinion.
The recent developments in the Kavanaugh hearings indicate the extent to which reputation politics matters as much in the digital age as it did in the Middle Ages. We must not be blind to the more insidious role it is playing, not only in matters of contemporary law, but even in lawmaking itself.