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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. You've been hearing the news about Congressman Eric Swalwell giving up a seat and abandoning his campaign for governor of California. That's the political headline. Here's a legal issue that may become important if Swalwell is prosecuted. The former staffer who accused him of rape says the assault took place in a New York hotel room after the two of them had been drinking. Swalwell denies the charge. Manhattan DA Alvin Bragg is looking into the case.

If Bragg brings charges, he may run up against a piece of New York law known as the voluntary intoxication exclusion. The voluntary intoxication exclusion. The exclusion makes it harder to find a defendant guilty of a sex crime if the alleged victim voluntarily got drunk. Some states have this exclusion, some states don't. Members of the New York State Legislature have proposed closing the voluntary intoxication exclusion for many years now, but the bill has never passed. Here's Assemblyman from the Bronx, Jeffrey Dinowitz, last year on NY1.

Assemblyman Jeffrey Dinowitz: In situations like that, where somebody is sexually assaulted, the cases are rarely prosecuted. If you have a few drinks and you're drunk, that doesn't mean there's a sign on you that says, "You could sexually assault me." That's not right, and we're trying to change that.

Brian Lehrer: Assemblyman Jeffrey Dinowitz last year. We'll talk now about the potential Eric Swalwell case and the voluntary intoxication exclusion, and more broadly about law and culture nearly a decade after the height of the MeToo movement. Joining us is Jane Manning, a former sex crimes prosecutor who now runs a nonprofit called Women's Equal Justice, which she describes as helping sexual assault survivors navigate the criminal justice process. Very specific to this topic, her bio page says she works "to improve the justice system's response to the violent and under-prosecuted crime of drug-facilitated sexual assault." Jane, thanks for coming on for this. Welcome back to WNYC.

Jane Manning: Thank you, Brian.

Brian Lehrer: Let's start on this very specific thing, the voluntary intoxication exclusion in New York law, then we'll broaden out to the bigger context of the Swalwell case. Would you tell our listeners in more detail, what is the voluntary intoxication exclusion?

Jane Manning: The voluntary intoxication exclusion is a law in New York State that is a holdover from many, many years ago, when women were not represented in the New York State Legislature and when sexual assault was virtually unprosecuted in New York. It's a law that imposes a much higher burden for holding someone accountable for sexual assault if the victim of the assault was "voluntarily intoxicated."

If a victim of sexual assault can prove that their drink was spiked, then the only thing the prosecution has to prove is that the victim was mentally incapacitated, meaning they were so out of it, they were incapable of appraising their situation, incapable of control, and that someone knowingly took advantage of that circumstance. That's if you can prove that you were involuntarily intoxicated, so your drink was spiked, which is often hard to prove because of untraceable drugs.

On the other hand, if the victim of a sexual assault is voluntarily intoxicated and a person intentionally, knowingly took advantage of their state of being intoxicated, New York State law requires the prosecution to meet a much higher bar, which is virtually impossible to meet. The standard for a voluntarily intoxicated victim is that they have to have been physically helpless during the sexual assault. This is really tough to prove for a number of reasons.

Case law defines physically helpless as being incapable of communicating, lack of consent, and it says that you basically have to be unconscious or asleep. You have to be unable to speak. That leaves out a whole category of victims who may be someone who was stumbling, who couldn't complete a full sentence, who didn't really understand where they were going, whether they were being steered into a hotel room that maybe couldn't stand up unassisted.

That person is unprotected from a predator, even if the prosecution can prove that that predator knowingly and intentionally took advantage of that state of incapacitation. Moreover, it's almost impossible. Even if a victim was unconscious at the time of a sex act, how in the world does a victim prove that she was unconscious when she doesn't remember what happened, and the perpetrator obviously chose an isolated place to commit the assault?

Even when prosecutors have very good evidence that a victim was stumbling, was incoherent, was disoriented, that is not enough under New York State law to hold someone accountable for sexual assault. Again, this is an antiquated law that survivors have been working for years to change. We hope that we're as close as we've ever been to changing this law in New York State this year.

Brian Lehrer: We'll talk about the political context in the legislature and why it hasn't passed, despite coming close in recent years. As this pertains to the Eric Swalwell accusations, I'm going to read part of the CNN report on this from four days ago that helped break this story. Listeners, you'll hear how it's relevant. According to CNN, "The former staffer says the congressman raped her when she was heavily intoxicated and left her bruised and bleeding, an allegation Swalwell strongly denies."

"She said it was the second time Swalwell had non-consensual sexual contact with her while she was drunk. In 2019, when she was still working for him, she said she woke up naked with him in a hotel room after a night of heavy drinking. She said she had no memory of what happened, but could feel physically that they had had sexual contact." Then skipping ahead in the article to the more recent event, the one in New York says, "Then in April 2024, when the former staffer was 25, Swalwell was invited to speak at a gala in New York City that she attended."

"The two got drinks at Swalwell's hotel and a nearby bar, and Swalwell was totally professional, she said. After the gala, she said she met up with some colleagues and then sent Swalwell a Snapchat message inviting him to get another drink. When Swalwell came in a car to pick her up, he put his hand on her leg. She says that, 'I said no funny business,' like, 'That's not what this is,' and he was like, 'Okay, okay." Then it continues to, "As the night progressed, she said the two went to another bar and continued drinking. She said she was heavily intoxicated and doesn't remember leaving the bar."

"The next thing the former staffer remembered, she was in bed with Swalwell in his hotel room, and he was having sex with her, she said. She said she remembers, 'Flashes of that evening of him on top of me, me pushing him off, him grabbing me.'" Those are excerpts from a CNN story that came out on Friday. Allegedly, Jane, she voluntarily got drunk with him, including she inviting him for additional drinks. Under the law, as it stands, as you just described it, can Swalwell use her intoxication as a defense to claim she consented to sex but doesn't remember it? Is that the issue here?

Jane Manning: Partially, yes. When prosecutors evaluate the incident that this young woman describes, they will be looking at two different laws in New York State. They will be looking at rape in the first degree, and they'll be looking at rape in the third degree. The fact that the young woman remembers saying, "I was pushing him off me, saying no, and he didn't stop," that recollection is going to be really important to considering a charge of rape in the third degree.

Rape in the third degree is a law that New York State passed around the year 2000 in the Sexual Assault Reform Act. It's sometimes called the No Means No law. It means what it sounds like. If a person expresses or demonstrates lack of consent to a sex act and the other person proceeds despite that lack of consent, that is a rape in the third degree in New York State.

It's a critical fact for the prosecution that the woman remembers saying no because that will at least open the door to considering a charge of rape in the third degree. A lot of times, you have a person who remembers a non-consensual sexual encounter, but they may have been too out of it even to form the words to say, "No," or to say, "Stop." That will not be enough under New York State law because, again, I said the other charge that the prosecutors are going to be considering is rape in the first degree.

If you don't have that victim being able to say, "Yes, I remember saying no. I know I didn't want it. I know I was out of it. I know I was lapsing in and out of consciousness," they don't remember saying no, then the only law you're left with being able to consider is rape in the first degree, for which you have to prove that state of physical helplessness. Given what we know about this young woman's account so far, it is very hard to see how the prosecution will meet that burden.

Again, if we didn't have that critical fact of her saying no, which many victims aren't able to remember because they can't recall enough of the encounter to know if they said no, rape in the third degree would be out of the running. We may be able to see a path to a prosecution for this young woman. There would be many cases in which a survivor under very similar or worse circumstances would not be eligible for any protection under New York State criminal law.

Brian Lehrer: Listeners, does anyone have a comment or a question about New York's voluntary intoxication exemption to the state's rape laws, which could become relevant in the accusation against Congressman Eric Swalwell, this case, or anything else pertaining to his case or Congressman Tony Gonzalez's case? He resigned yesterday, too. We'll get to that. 212-433-WNYC, 212-433-9692, or you can call or text about the bigger context of progress made or still needed, or backlash to the MeToo movement, which broke out big time after the Harvey Weinstein allegations made headlines in 2017.

212-433-WNYC, call or text, 212-433-9692, with Jane Manning, former sex crimes prosecutor and director of the group Women's Equal Justice. Jane, in the Assemblyman Dinowitz clip that we played, he said prosecutions are rarely brought when the alleged victim was voluntarily intoxicated. Is the first fight here with the district attorney's office to even get an indictment in the case?

Jane Manning: Meaning persuading the DA's office to indict, or will the DA's office be able to indict?

Brian Lehrer: Correct.

Jane Manning: The answer to that varies from DA's office to DA's office. Historically, we see DA's offices being way too reluctant to take these cases seriously, even when there is pretty abundant evidence that someone was incapacitated. However, I will say that this particular case is being considered by the Manhattan DA's office, and there, there is some good news to report.

The current district attorney, Alvin Bragg, is someone who came into office as a progressive prosecutor, but one who understands that while some crimes have been over-prosecuted in New York State, rape is a crime that has been under-prosecuted. This DA has done a lot to improve his office's capacity to do good work in sex crime cases. The work is not done. The Manhattan DA's office is a big ship to turn around.

What we see is ongoing progress in that office, partly due to the very hard work of survivors to raise awareness about the ways that DA's offices have failed victims in the past, including a survivor who has been on your show, Brian, Marissa Hoechstetter, who was really instrumental, I think, in helping Alvin Bragg, who was not a career sex crime prosecutor, really develop a lot of knowledge and insight about the ways the system needs to improve. I see him working hard to do that. I think this victim will come into an office where victims are not being retraumatized, mistreated the way victims were maybe 10 years ago. That is a good news story. Your role in raising awareness about these issues is a piece of that story. The hard work of survivors is the biggest piece of that story.

Brian Lehrer: Yes, Manhattan DA Bragg is very public, we should say, in wanting the voluntary intoxication exclusion abolished. He co-authored, as you know, an op-ed in City & State in 2024. I'll just read a couple of lines from that. He wrote, "Drugging someone to rape them is clearly wrong, so is taking advantage of someone who became intoxicated voluntarily. In either case, the person is incapable of meaningful consent, and our laws should clearly recognize sex under either circumstance as rape."

He's very out on advocating that change in the law. Here's some of the pushback, Jane, that opponents of changing the law might articulate or ask. The NY1 story cited defense attorneys as opposing the change, saying it's overbroad because if someone got drunk, had consensual sex, but then regretted it later, the partner could be convicted of rape. Is that the standard the new law would apply in your opinion as a former prosecutor, and is that a standard you would want to see?

Jane Manning: The legislation has been carefully crafted and, in fact, was redrafted to reflect that concern, because what the bill sponsored by Assemblyman Dinowitz and Senator Nathalia Fernandez now requires is that the prosecution not only prove that the victim was in that state of incapacitation where they were unable to appraise, incapable of control over what was going on. Not only does the prosecution have to prove that, but they also have to prove that a person in the defendant's situation knew or should have known of the victim's state.

What that means is prosecutors will have to look at the defendant's situation. Was the defendant also intoxicated? They will have to look at, were there objective indicators that were obvious to a person in the defendant's situation that the victim was at this level of incapacitation? That is an additional burden for prosecutors, but it is one that is crafted to address that concern of two people who get drunk, have sex, and regret it the next day. That's really not what we are looking to criminalize. That is a real thing that can happen.

It's pretty clear that that's not what was going on. Based on media accounts, that is not what these stories around Eric Swalwell are describing. They are describing something much more methodical, much more knowing, much more purposeful. Again, I'm sure there's more that will emerge around those cases, so I don't want to draw a legal conclusion about Eric Swalwell specifically, but the bill is crafted to target predatory conduct by someone who knows that the victim is incapable of consent.

Brian Lehrer: Again, he denies having done anything that was non-consensual, so we'll, of course, see where this goes. It was enough for him to drop out of the California gubernatorial race and to resign his seat in Congress. We'll get to the political aspects later, but let's take a phone call from Francesca in the Bronx, who, I think, and I'm kind of sorry to say, has a troubling anecdote along these lines. Francesca, you're on WNYC. Thank you for calling in.

Francesca: Hi, good morning. Yes, so I'm in a social dance community here in New York City. There's a lot of us. We've all known each other a long time. There's an instructor. Everybody was out one evening dancing. There was a woman I know. She had been drinking. A lot of people had been out drinking a bit. This instructor was supposed to-- He offered to take her home. He was supposed to ferry her home safely, and they knew each other.

Instead, he drugged her, and he raped her in her home. She had hazy memories. She figured out what happened. She texted him, even said something in the text. He acknowledged what he did to the police because he didn't even see a real problem with what he had done. Still, this guy is out walking around, teaching classes. I've heard about other things that have happened since then. We try to protect the women in our community.

With this law, we need this law in place because this poor woman, she can't participate safely. She's terrified. She's been terrified to go out. It's unfair. In any other state, he would be in jail. He would just be in jail, or any other state, without this kind of loophole. He would be in jail. This woman can get no recourse. We try to protect other women from this guy, but it's a big city. We can't spread the word to everybody. That's not really how it works.

Brian Lehrer: Jane, you're listening to Francesca. What are you thinking?

Jane Manning: Francesca, thank you so much for calling in, and thank you for your support for this survivor. A couple of things--

Francesca: We try to protect her, but it's difficult.

Jane Manning: Yes. The first thing I'll just say is, Francesca, I can be contacted over LinkedIn. If you reach out to me or if this survivor reaches out to me, this is the kind of situation that my organization tries to help survivors navigate. I would be happy to be in touch offline, or even if you can stay online with Brian's team. I'd be happy to be in touch and see if there is anything that can be done to help this survivor. You rightly raised the issue of New York State's law, which will unquestionably make it harder to prosecute your friend's case.

Even in a case where there's good reason to believe that a person has been drugged, it is sometimes hard to prove that they were involuntarily drugged because the drug may have dissipated before they get to a hospital because the perpetrator may have used a synthetic drug that the lab doesn't even have a test for. We see cases of predatory drink spiking followed by a sexual assault in which New York's law on involuntary incapacitation can't even be used. We have to fall back on the voluntary incapacitation law, which excludes most victims.

It's a trap for victims, and it's a trap even for well-intentioned prosecutors. Then there is also the additional issue that Brian raised, which is that we do see even cases where there's enough evidence for police and prosecutors to go forward, and they are not going forward. That is still common, I will say, in New York City. It's very common beyond New York City. We still have a lot of work to do, both in how our laws are written and in how our laws are enforced. If you can be in touch, I will try to help your friend if there's any way that I can.

Brian Lehrer: Francesca, it's up to you. If you'd like to leave your contact information with our producers, I'm putting you on hold, and you can do that. We'll get you in touch with Jane, obviously, off the air. Jane, I want to note that there's a fair amount of pushback, at least with respect to the Swalwell case coming to us from some callers and some people sending in text messages. Some are political, saying this may be a political hit job. It came out now when he was leading in the race for governor of California or one of the leaders.

Another person says it's a political hit to distract from Trump and his problems, but here's one that gets to the reason that a number of people writing and calling have suspicion here. Listener writes, "What person in their right mind invites someone who previously raped her while she was drunk for drinks again, gets drunk, and puts herself in the position of getting raped again?" There are people who think that. What would you say to that group?

Jane Manning: I'm so glad you raised this, Brian, and I would love to address both of those points. First, the idea of a political hit job. Thank you for bringing that up because, invariably, when there's a high-profile case like this, we hear the backlash panic that says, "Now, anyone can accuse anyone of anything and end their career." That is just not the case, and that is not what happened here.

The reason we saw such a quick mobilization of political leaders calling on Swalwell to drop out is that the circumstances of this case were extraordinary. The women who spoke up were credible. They were women who had nothing to gain and a lot to lose by coming forward. They were candid about things that complicate their stories. They were willing to have their stories thoroughly vetted and fact-checked.

Also, when CNN and San Francisco Chronicle investigated these stories, there was abundant corroboration. There were text messages. There were disclosure witnesses. There were medical records. These allegations were meticulously investigated, and they were thoroughly corroborated. The third thing I'll say about these allegations, in addition to being credible and corroborated, they were egregious. This is a person who took advantage of his position of power to groom young women and then to sexually violate them.

There were four women. There were multiple survivors coming forward, multiple people who came forward at once. I would just say, there is nothing to the concern that this is a political hit job. There was a lot here. That is why we saw even politicians who were Eric Swalwell's allies, former allies, quickly call on him to drop out of the governor's race and to resign from Congress. This was a case where there was a lot of very evident merit to the allegations. That's the first thing I'll say.

The second thing is, why would the survivor of the most serious allegations, the young woman who was a staffer for Eric Swalwell and describes two incidents, one in 2019, one in 2024, where she became drunk with Eric Swalwell and had a sexual encounter that she doesn't remember well, although in the second encounter, she does remember a forcible and non-consensual assault that she said no to.

The question is, why would she have gone out with him a second time? To understand the answer to that, we really have to look at Eric Swalwell's own purposeful conduct. All four of the women who describe these inappropriate actions describe Eric Swalwell cultivating relationships with them, using his professional position, offering them jobs, offering to help them advance their careers, and also engaging with them in a non-sexual context, talking about their interest in politics, helping them think through their own potential career moves.

The staffer, whose allegations we're talking about, worked for Eric Swalwell first on his campaign and then on his staff. He gave her positions of real professional responsibility. This was a young woman who would have had a lot of contact with Eric Swalwell in a non-sexual, non-exploitative, professional context that he created. It would have been very easy for her to look back on the 2019 incident and say to herself, "I guess that one was on me. I don't really remember what happened. Maybe I just got too drunk, and maybe that was my fault."

In terms of why would she have gone out drinking with him again, drinking culture is part of political culture. It is part of DC culture. It is what people do after work when they are cultivating the kinds of relationships that are crucial to building a career. If she had internalized and blamed herself for the first incident, it is not hard to understand why she would have gone out for a social and professional conversation over drinks with her former boss, who was still offering her professional opportunities.

Even as recently as last November, he reached out to her to offer her a job with his gubernatorial campaign, which she declined. This being after the second incident that she described. Why did she go out for that second incident? It's a normal thing to go out with work colleagues, with a former boss, with someone who can potentially advance your career. It is only after she had that recollection of waking up during a non-consensual incident, of saying no, of him not stopping, of waking up the next day with bruises and bleeding, that it was very clear to her that a forceful and non-consensual sexual incident had happened.

That is when she realized that she had been preyed upon. It was after that that she turned down the offer of a really valuable potential job offer that Eric Swalwell extended to her. I think if you follow the timeline of what the first incident was, what the second incident was, and how much of a professional relationship there was in between, it becomes a lot easier to understand this young woman's conduct, especially if we keep some scrutiny on Eric Swalwell's conduct where it belongs.

Brian Lehrer: I want to take one more call on New York's voluntary intoxication exclusion in the rape laws, and then we'll go on to the bigger picture of where you stand politically, legally, culturally, almost a decade after the height of the MeToo movement, writ large. It's Nora in Sleepy Hollow. You're on WNYC. Hello, Nora.

Nora: Hello. Yes, I told your screener. I did not know about this law, and I'm fairly well-informed. I was dumbfounded. My first thought was, what if the woman is-- Okay, I got it. It's voluntary intoxication, so it wouldn't apply to someone who had an epileptic seizure or something like that, but it's still just so outrageous that the person being, in a sense, prosecuted is the victim. How much did she do to contribute, et cetera, et cetera? I wonder about the history of law. I also asked, was anyone trying to overturn it?

I wonder where it came from. I've heard you say that Bragg is very adamantly trying to overturn it, which is encouraging. Also, as I listen, especially to the pushback, I just think we don't really recognize the degree to which gender affects us. Misogyny and sexism affects us at every level. It's as systemic as racism is in this country. I don't know if there's time for a little anecdote, but I just thought of an interaction I just had with someone. I'm a devout feminist and a pretty aware person.

I found myself in a situation where after this man had left, he was a town official, I said, "Why didn't I ask that question?" He was giving me this glib answer for why he hadn't checked something out that he had told me he would check out. It wasn't that I said, "Oh, I shouldn't or I won't." It just wasn't in my arsenal at that moment to say, "But you said you would. It couldn't hurt to just check it." I think the conditioning that we are the problem for raising an issue, women, is just runs deeper than anybody really recognizes.

Brian Lehrer: Nora, let me leave it there and get a response. You heard her big-picture thought toward the end of that call. At the beginning of the call, she was asking, "Where did this voluntary intoxication exclusion come from? How old is it? Are people working to repeal it?" which we know they are. I want to know from you, since this bill has been introduced in the legislature multiple times but never passed, why do you think it never passes? Enter anywhere you want, Jane, from Nora's call.

Jane Manning: This exclusion has always been a part of the New York State penal code. Again, it dates back to a time when there were few or no women in the New York State Legislature and when New York had a whole raft of very antiquated and victim-blaming laws on rape, making rape virtually impossible to prosecute. The voluntary intoxication exclusion is a holdover. Other laws have been reformed. This one has not. It's the subject of a lot of hard work right now.

In terms of why it hasn't been reformed until this date, I will just say this bill has already been passed in the New York State Senate more than once. In the New York State Assembly, it has 92 co-sponsors out of 150 legislators. That means people who put their names on the bill as co-sponsors, so not just a majority, but a super majority of the New York State Assembly, wants this bill passed.

It is the Assembly Speaker, Carl Heastie, that has not allowed it to come to a vote. There is something that listeners can do about this, and that is call your member of the New York State Assembly. It's easy to google, "Who is my New York assembly member?" Ask them to speak to the speaker about bringing this very important bill to a vote. You can also call the speaker's office, especially if you're in his district.

Brian Lehrer: If this bill has so much support in the assembly, why do you think Heastie isn't bringing it to a vote?

Jane Manning: I think the caller, Nora, mentioned two really important words. They are misogyny and sexism. We still blame victims for being targeted by a perpetrator. We still think of women almost in the default as liars, as untrustworthy. It is time to break out of that mindset, break out of the misogyny and sexism that informed so many of New York State's old laws and continues to inform this one. I think the caller called it exactly right. It's time to think in a new way about who is the wrongdoer in a situation when one person is defenseless and another person takes advantage of them.

Brian Lehrer: We've got a few minutes left with Jane Manning. When we continue after a break, we'll talk a little bit more about the political context, including why so many of Swalwell's congressional colleagues called on him to resign so quickly when that kind of pressure is very rare, and where she thinks the US is culturally at this point, almost a decade after the height of the MeToo movement. Stay with us.

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Congressman Eric Swalwell: I have certainly made mistakes in judgment in my past, but those mistakes are between me and my wife. To her, I apologize deeply for putting her in this position.

Brian Lehrer: Congressman, and now resigning from Congress, Eric Swalwell, and part of his denial statement regarding rape and other sexual misconduct claims by four women reported in recent days. We have a few more minutes with Jane Manning, former sex crimes prosecutor, who now runs a nonprofit called Women's Equal Justice, which helps sexual assault survivors navigate the criminal justice process. Jane, I know you want to give us your take on what this case can tell us about progress the country has made in the MeToo era and what progress is still needed. Where would you begin with that?

Jane Manning: The events of the past few days really do show a lot of progress that we have made. The fact that these young women came forward is progress. It's pretty clear that when they first told friends and family members that they trusted, it's pretty clear that they received support and weren't blamed and disbelieved. The fact that when the allegations were made, it was taken seriously, and the consequences were immediate.

There's a letter from 50 staffers of Eric Swalwell's congressional staff and campaign that came forward to support the survivors and, yes, the political leaders who spoke out and called Trump to step down. These things are encouraging. They are signs of progress. I'll also just say the very, very thorough investigation that these journalists did really served these women well and protected them against the kind of, I think, blaming and retaliation that I think would otherwise have been very widespread.

This is all really, really encouraging. On the other hand, there's a lot of progress that is still needed. The fact that this is still happening, most of the allegations in this case happened post-MeToo. I guess it's nine years now after the MeToo movement. Eric Swalwell still feels free to help himself to young women barely out of college who are just no match for the grooming and manipulation of a 38, 39, 40-year-old member of Congress.

Another thing that we see in Eric Swalwell's conduct is that when the allegations surfaced, his first instinct was to intimidate and retaliate. Thursday, the day before the allegations came out, he had his attorney sent at least some of these women a threatening letter, threatening legal action against them. I think it is the fact that there were four women that made it harder to silence them because they all came forward together. This does shed light on another area where New York State law really needs some help, and that is the similar crimes bill.

When you call your member of the assembly to ask them to pass voluntary intoxication, ask them also to pass the similar crimes bill, because New York State law still requires that a victim's complaints be heard in isolation. If there are other women who have experienced similar misconduct, those claims are generally concealed from the jury. We see in this case how important it is to protect any one woman from being disbelieved, gas-lit, retaliated against, that multiple women came forward together. That's another area where we still have a lot of work to do.

Brian Lehrer: Even a jury finding of sexual abuse doesn't always necessarily disqualify a politician in the courtroom of public opinion, right? We know that Donald Trump was found liable for sexual abuse of E. Jean Carroll before the election last year, but he won the election anyway. Do you think that was an aberration because of the specific context of him and that race or something, or a sign of a broader backlash to MeToo?

Jane Manning: I think the more powerful a person is, the harder it is to hold them accountable. I do think that the quick political reaction against Eric Swalwell shows an understanding that unacceptable conduct for a member of government or a public official is a broader range of conduct than the strictly criminal. In other words, we don't know yet whether Eric Swalwell will be criminally charged, but it is very clear that there is a widely shared understanding among the Democratic members of Congress who called on him to step down and drop out.

There is a widespread understanding that hitting on a 20-year-old who has just joined your staff while you're also their boss and promoting them and dictating their professional responsibilities and future career opportunities is wrong. In fact, there's a House ethics rule that says that it's wrong. I think the events of the past few days show that there is an understanding that, whether or not your conduct is criminal, this kind of conduct is unacceptable for a public official, and there should be accountability for it.

Brian Lehrer: As we look at the bigger picture, since MeToo in 2017 or whatever timeline we want to use, there are cases where many people feel the movement went too far. Al Franken often gets mentioned in this way. There was the Duke lacrosse team case 20 years ago now that lingers, contributing to, you might say, doubt about the phrase "believe women" rather than "innocent until proven guilty" as the guiding principle, as progressives would have it, for most other defendants. Has the movement overreached at all in your view, making men in general more unfairly seen as suspect, and also to the detriment of more justice and more actual assaults?

Jane Manning: No, I don't think the movement has overreached. I think survivors still have an uphill battle being believed, but I do think it is important for feminists to lead the way in having a conversation about how we verify complaints about sexual assault, because false allegations of sexual assault are rare, but they do happen. As feminists, we can't be afraid to talk about that.

I think that the journalists with CNN and the San Francisco Chronicle who investigated these allegations before making them public led the way in showing how important investigation and verification are. Not assuming that someone's guilty, but also not discounting allegations reflexively. Doing an investigation, following the facts, and judging by those yardsticks that I talked about before, credibility, motive to lie, candidness, corroboration, and the fact that there are multiple victims is sometimes you don't have multiple victims.

That doesn't mean one victim is lying, but that's really relevant as well. We use all of these factors. No one individual test can tell you if an allegation is true or false. These are the things that we should be thinking about when we assess the veracity of an allegation of sexual assault that happened here. It's credit to the journalists and the public officials who went through that rigorous and fair scrutiny of the allegations. I think it's leading to the right result in this case.

Brian Lehrer: Here's a text from a listener pertinent to the accuser of rape in this case against Eric Swalwell because of her age. She was 20 at the time of the first alleged incident, 25 at the time of the second. The listener writes, "It's important to remember that women in their 20s are constantly navigating the fine line between nuisance and danger with men."

Jane Manning: Yes.

Brian Lehrer: "Sadly, nuisance can turn to danger very quickly, and then you have to deal with guilt and denial," writes that listener. Before you go, Jane, do you have a comment on the other congressman who resigned yesterday, Republican Tony Gonzales of Texas? He admitted to having an affair with a former staffer, who later died by suicide. He's accused of sending sexually explicit messages to a former campaign worker. There's no rape or sexual assault charge there. Is his behavior, as reported, resignation-worthy, in your opinion? Then we're out of time.

Jane Manning: I think it is resignation-worthy. There are clear House rules against having special relationships with your staffers for all the reasons that we've talked about in this call. We're continuing the work of building a world where it is not acceptable to exploit those over whom you have power.

Brian Lehrer: Jane Manning, former sex crimes prosecutor who now runs the nonprofit Women's Equal Justice. Thank you very much for coming on with us today.

Jane Manning: Thank you so much, Brian. Thank you to the callers and the listeners. Good conversation. Thank you, Brian.

Brian Lehrer: Brian Lehrer on WNYC. More in a minute.

 

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