In a Day's Work Read online

Two years after the civil case was settled, County Attorney Freeman said he still believes he made the right decision by turning Zúñiga’s case away. Even with the additional circumstantial evidence that Zúñiga’s attorneys turned up, there simply wasn’t enough for him to bring a criminal case. “I think all of the additional facts, cameras in his office, porn on his computer, changing of carpet, implied or gave some evidence that he may well have done the crime or altered what happened, but that isn’t enough hard evidence,” Freeman says. “We gotta have bodily fluids, we gotta have eyewitnesses, we gotta have video cameras, we have to have him talking to other people about it.”

  Prosecutors like Kathy Ciuffini or Alice Vachss would disagree, but Freeman argues that it was, in fact, his ethical obligation to not prosecute Zúñiga’s case. “Unfortunately, although we believe the crime was perpetrated, we couldn’t prove it beyond a reasonable doubt,” he says. “And we would be wrong in taking that case to trial.”

  In 2007, Guadalupe Chávez’s case went to a criminal jury trial. Nearly everyone who had been in contact with Chávez about what had happened in the orchard was asked to testify: Senior Deputy Sheriff Kristopher Zúñiga and his investigation partner, district attorney investigator Dennis Reed, Alegria de la Cruz of the California Rural Legal Assistance, and Fabby Martínez, the medical assistant from the Corcoran District Hospital. Chávez also offered emotional testimony.

  The accused supervisor did not take the witness stand, but the defense attorney raised various questions about Chávez’s claims. Memorably, he argued that the sexual encounters couldn’t have happened in the way that Chávez described because it would have been physically impossible for the supervisor, who is five-feet-four-inches tall, to have received a blow job from Chávez while she was seated in her car.

  The defense attorney also introduced doubt about Chávez’s character and her motivations. The fact that she had made a sexual harassment claim against another supervisor was used to make the point that Chávez was perhaps overly enthusiastic about filing complaints.

  She also did not behave in the way a true victim does, the defense attorney said. Why hadn’t she just driven away if she felt threatened in the orchard? Why didn’t she seek help from a rape crisis center soon after the incidents if she had actually been assaulted? Why was the first person that she talked to about the rape her lawyer and not a friend or family member?

  The defense pointed out that there had also been inconsistencies, big and small, related to Chávez’s claims that he said ought to throw her credibility into question. For example, she had testified that the supervisor’s pants had been unzipped but she had previously told the police that they were unbuttoned. She reported to the police that she had talked to the supervisor on her cell phone as they drove, but she also told attorney Alegria de la Cruz that there was no cell phone reception in the orchard. She said that he ejaculated on the side of her face during police questioning but testified in court that he had finished in her mouth. The defense attorney said that these are not inconsistencies that can be chalked up to trauma.

  Taken together, Chávez simply shouldn’t be believed, the defense attorney said. “It’s too easy, as the lacrosse players at Duke University found out, to be accused,” he said during his closing arguments. “It’s too easy for our sons, nephews, grandsons to be accused of a sexual crime against a woman when it’s her word versus his word.”

  In the end, almost everything about Guadalupe Chávez’s case was an anomaly. She went to the police to report a rape. The local prosecutor agreed to take her case even though there was no witness and not much physical evidence.

  In one key respect, however, Chávez’s case did follow a common pattern: The jury found the accused supervisor not guilty. The verdict was consistent with national trends: about 2 percent of reported rape cases result in a felony conviction.37

  In the years since trying the case, Ciuffini has reflected on the things she could have done as a prosecutor to bolster Chávez’s case. She wonders if sending Chávez’s clothes for DNA testing would have swayed the jury, though at the time, she thought it would be too expensive for too little gain, because the supervisor was arguing that the encounter had been consensual. Ciuffini says that it’s common knowledge that sexual assault cases without a confession or clear-cut physical evidence are hard to win. It’s why so many prosecutors are loath to bring them.

  Ciuffini files them anyway, because “it’s what the victim deserves,” she says: “If they are brave enough to come forward and to testify in a jury trial, then I am willing to prosecute the case.” She says she filed the case on behalf of Chávez because she believed her: “Because Guadalupe has a voice and she wanted it prosecuted and why should I make a decision for her?”

  “I told her all the time, ‘Guadalupe, I believe you,’” Ciuffini continues. “They said ‘not guilty’ but I believe you. You told your story and you were brave. What if you had let him get away with this and you didn’t report it? He’s on notice now.’”

  These days, Chávez lives in a yellow mobile home in the Pacific Northwest that she bought after spending years working in the fields and in a Mexican food factory. Her sons are nearly grown. She regularly attends an evangelical church where she covers her head with a scarf to demonstrate her humility before God and sings hymns loudly and with gusto.

  She is now able to travel between the United States and Mexico on religious pilgrimages because she is on the route to citizenship, having earned a U visa for victims of crime after cooperating with Zúñiga and Ciuffini.

  Reflecting on the arc of her case more than five years after the trial while seated at her dining room table, Chávez said she does not regret reporting the crime. Although her supervisor was acquitted, she says she has found some justice in the fact that he had to face a public confrontation from both her and the state of California. “At least that person will think twice before doing that,” she said. “For that person, it was a warning—Hey, look, you can’t do that anymore.”

  5

  All That We Already Know

  In October 1991, a thirty-five-year-old law professor named Anita Hill raised her right hand and swore to tell the truth at the confirmation hearing of Clarence Thomas, then a nominee to the U.S. Supreme Court.

  With a gaggle of blinking TV cameras and the gaze of fourteen male senators from the Judiciary Committee fixed on her, Hill leaned into the microphone. She testified that while she had worked at the U.S. Department of Education and then later at the U.S. Equal Employment Opportunity Commission, Clarence Thomas had persistently asked her out on dates, discussed the content of the porn he had watched, and bragged about his sexual prowess.

  “Because I was extremely uncomfortable talking about sex with him at all, and particularly in such a graphic way, I told him that I did not want to talk about these subjects,” she said in an even, measured tone. “I would also try to change the subject to education matters or to nonsexual personal matters, such as his background or his beliefs. My efforts to change the subject were rarely successful.”

  No one had ever made such a public accusation of workplace sexual harassment before, and Hill closed her remarks by explaining why she had taken the unusual step of sharing her story. “I have no personal vendetta against Clarence Thomas,” she said. “I seek only to provide the committee with information which it may regard as relevant. It would have been more comfortable to remain silent. I took no initiative to inform anyone. But when I was asked by a representative of this committee to report my experience, I felt that I had to tell the truth. I could not keep silent.”

  Hill’s testimony was a watershed moment in the country’s confrontation of sexual harassment in the workplace. A political commentator at the time called it a “national teach-in”; it catapulted the issue to greater national awareness and has had lasting and profound impact for America’s working women.

  In making explosive claims against such a prominent individual in such a public forum, Hill knew she would dr
aw scrutiny and resistance. Thomas had categorically denied Hill’s accusations, and he had decried the proceedings and argued that because he is an African American man, the entire affair had become a racialized circus. Though Hill is also African American, he famously described the confirmation process as a “high-tech lynching.”1 He said he was disgusted by the way that his good name and integrity had been tarnished by what he contended were Hill’s baseless allegations.2

  Hill offered historic testimony, but the process also devolved into a political soap opera that has generated unfortunate legacies. The tone and manner in which Hill was questioned reaffirmed a narrative that we have not entirely abandoned: Victims of sexual harassment—like victims of any kind of sexual violence—should expect to have their credibility questioned and their stories doubted.

  The hearing was not meant to be a trial, though it was an overt effort to make a determination about Hill’s allegations. The political stakes were high because White House officials under President George H.W. Bush had promised to advance a Supreme Court nominee who was “a true conservative,” and the hearing was to assess whether Thomas, whom the administration favored, was fit to serve.3

  Instead of one judge, Hill faced more than a half-dozen senators, some of whom were politically motivated to disbelieve her claims. The Republican senators who supported Thomas’s confirmation were especially eager to discredit Hill. Through their questioning, they sought to minimize the harassment she described. They pressed her for explanations for incongruities in statements she had made to the press and the FBI, which later prompted Senator Arlen Specter to dismiss Hill’s testimony as “flat-out perjury.”4

  Specter also suggested that her failure to report the harassment showed that Hill was making it up or exaggerating it. “How could you allow this kind of reprehensible conduct to go on right in the headquarters [of the U.S. Equal Employment Opportunity Commission], without doing something about it?” he demanded.

  Hill responded with disarming calm:

  I can only say that when I made the decision to just withdraw from the situation and not press a claim or charge against him, that I may have shirked a duty, a responsibility that I had, and to that extent I confess that I am very sorry that I did not do something or say something, but at the time that was my best judgment. Maybe it was a poor judgment, but it wasn’t dishonest and it wasn’t a completely unreasonable choice that I made, given the circumstances.

  Meanwhile, rumors swirled—some fed by the same Republican senators who doubted her story—that Hill was a lesbian and a scorned woman. Perhaps most outlandishly, she was accused of having erotomania, a delusion that Thomas was in love with her.5

  Despite the efforts to question her credibility and her judgment, Hill was unimpeachable. She was poised and frank in her responses to the senators’ questions. She passed a lie detector test. Four friends—including an attorney, a law professor, and a judge—came forward to corroborate that Hill had confided in them about Thomas’s behavior as it was happening.

  Finally, for any who still deemed Hill unbelievable, another woman, Angela Wright, agreed to testify that she had also been sexually harassed by Thomas when she had worked for the U.S. Equal Employment Opportunity Commission.

  In what has since been well documented in books, documentaries, newspaper articles, and even an HBO film, the Senate Judiciary Committee, seemingly driven by political considerations, decided to end the hearing after three days without calling Wright or additional witnesses on either side. Congress took up the matter two days later, confirming Thomas as an associate justice of the U.S. Supreme Court by four votes.

  By questioning Hill’s veracity so forcefully without giving her the chance to back up the weight of her claims, the senators sent a clear message that women who speak up about unwanted sexual behavior by a powerful man will be disbelieved and perhaps even publicly called liars.

  Hill is aware of the hearing’s unintended legacy. Reflecting on these events decades later, she said in interviews conducted in 2014 that the hearings were “unfair” and a “disservice to the public.”6 The committee asked “ill-informed questions” about the issue, she said, and “they were drawing on myths and things that had not been proven.”7

  The hearing helped cement the false idea that most sexual harassment cases are he-said she-said cases with no way to find the truth. Actually, there is usually more information that can be brought to bear. For example, in Hill’s case, the committee could have called Angela Wright to testify about her allegations that Thomas had engaged in sexually inappropriate behavior at work. But it didn’t. “The hearings showed people what happens when representatives don’t make a real attempt to get to the bottom of issues and to understand how sexual harassment works,” Hill said in a 2016 Time magazine interview.8

  The hearings also reinforced an ongoing misconception that a true victim of sexual harassment or any sexual violence responds immediately and aggressively to the problem. This was a central theme that the committee used to question Hill’s veracity. If it really happened, why didn’t she do something about it?

  The public also considered this discrediting. News polls taken during the hearing showed that most people didn’t believe that Hill had been sexually harassed, partially because they thought that someone who had been harassed in this way would have said or done something forceful in response.9

  In an October 1991 USA Today article, a Minneapolis focus group said that Hill should have been angrier and acted sooner.10 A female marketing consultant told the newspaper, “Something’s not clicking. From a female point of view, I cannot understand why the relationship continued in any form.”

  Hill’s testimony did prompt a noticeable rise in sexual harassment reporting to the federal government, but the idea that “real victims” of harassment or violence automatically respond aggressively and report it is a stubborn and widely held assumption that received a boost from the Thomas confirmation hearing. It does not, however, square with reality. In fact, decades of empirical research dating back to the 1980s tells us that the exact opposite is true.

  In 1981, nearly a decade before Clarence Thomas’s confirmation hearing, the federal government published the country’s first survey on sexual harassment, conducted by the Merit Systems Protection Board, a quasi-judicial federal agency created to protect U.S. government employees from unfair and arbitrary treatment. The report was titled “Sexual Harassment in the Federal Workplace: Is It a Problem?” The board surveyed about twenty thousand employees of the federal government and concluded that unwanted sexual behavior at work was, in fact, “widespread” and “an important concern in the workplace.”

  The study also noted that workers tended not to report the problem, and when they did, many found that speaking up either didn’t help or made things worse. “This indicates that much still needs to be done to make supervisors and other officials accountable for resolving these problems informally,” the report says.

  It was a crucial study issued at a moment when sexual harassment was emerging as an increasingly urgent issue. In 1979, a few years before the federal government study was released, a legal scholar named Catharine MacKinnon published a seminal book, Sexual Harassment of Working Women: A Case of Sex Discrimination. It documented the impact of sexual harassment on female workers and argued that sexual harassment was illegal because it is a form of sex discrimination prohibited by Title VII of the U.S. Civil Rights Act of 1964.

  The book also advanced the idea that there are different types of sexual harassment, such as ongoing verbal and physical behavior that creates a hostile work environment, as opposed to “quid pro quo” harassment, whereby victims are coerced into unwanted sexual contact or activity. The legal analysis proposed by MacKinnon in Sexual Harassment of Working Women was eventually adopted by the U.S. Supreme Court in 1986 with its decision in Meritor Savings Bank v. Vinson.

  The federal case centered around allegations made by Mechelle Vinson, a bank employee, who said that, among o
ther things, she had been raped by her immediate supervisor. He denied the allegations, and the bank argued that Vinson did not notify them of the problem. The bank won at trial, but Vinson won on appeal, and the U.S. Supreme Court agreed to hear the case.

  MacKinnon was one of the attorneys representing Vinson, and the high court’s resulting decision is significant because it established general guidelines for judging sexual harassment claims, making it clear that a hostile work environment—in addition to quid pro quo harassment—is illegal under federal civil rights law. This legal framework remains in place today.

  As these types of critical legal and cultural questions around sexual harassment were being raised with great energy and attention in the mid-1980s, Louise Fitzgerald was an assistant professor of psychology in Ohio. As a feminist who had studied women’s history, Fitzgerald understood immediately that harassment was a significant barrier to women in the workplace. She had read with great interest The Lecherous Professor: Sexual Harassment on Campus, a book published in 1984 that examined sexual harassment in higher education through various case studies.

  Fitzgerald was struck by the stories of harassment in the book. When a federal grant opportunity came up, she decided to study the issue using her training in statistical analysis, drafting a research proposal aimed at figuring out how to quantify sexual harassment. “People talked about it but no one really knew how to really measure it,” Fitzgerald recalls. “No one knew how much of it there was, and even what it is.”

  When she was awarded the grant, in 1984, Fitzgerald assembled an all-female research team. In those early days, there was no common understanding of what could be deemed sexual harassment, so the group’s first task was to create a survey questionnaire that would more fully capture women’s experience with the problem. The team called the survey the Sexual Experiences Questionnaire, or the SEQ.11