February 05, 2019

Harris Presses Trump Judicial Nominee Rao on Controversial Writings on Sexual Assault, Consent

Video of Harris’s Questioning

 

WASHINGTON, D.C. – At a hearing of the Senate Judiciary Committee today, U.S. Senator Kamala Harris questioned Neomi Rao, nominee for the U.S. Court of Appeals in Washington, D.C., on her previous comments blaming survivors of sexual assault for the trauma they experienced, as well as her controversial writings on sexual assault and consent.

 

Harris began by pressing Rao on her previous comments suggesting women should avoid excessive drinking in order to prevent being sexually assaulted.

 

“You said ‘Women should take certain steps to avoid becoming a victim.’ What steps do you have in mind that women should take to avoid becoming a victim of sexual assault?,” Harris asked.

 

Rao responded, “Senator, it is just sort of a common sense idea about, for instance, excessive drinking. You know, that was advice that was given to me by my mother.”

 

Harris continued, “So, that is one step you believe women should take to avoid becoming a victim of sexual assault?

 

“It is just a way to make it less likely. It is not to blame the victim. You know, rape and sexual assault are horrible crimes, but we are talking about what can you do to keep yourself safe,” Rao responded.

 

Harris also pressed Rao on a controversial 1993 article she wrote about date rape.

 

“Your previous writings on date rape and sexual assault have been mentioned many times in this hearing. They certainly express strong opinions about the subject and, for that reason, raise concerns about your current perspective on these issues. You have, for example, in ‘93 said that, ‘Date rape exemplifies the attempts of the nurtured feminist to develop an artificial alternative world in which women are free from sexual danger and no always means no.’ In your current view, when does no not mean no?,” Harris asked.

 

“Senator, no means no and I regret writing that when I was in college,” Rao responded.

 

Full transcript of Harris’s questioning below:

 

Harris: Ms. Rao, in 2016, the Obama administration enacted the “Volks” rule which allowed OSHA to issue citations to employers for failing to keeping a record of work-related injuries over a five-year period. In April of 2018, the current president signed a law repealing the “Volks” rule and in a speech that you gave before the United States Chamber of Commerce, you applauded the rule's repeal. According to OSHA, are you aware that more than 5000 workers were killed on the job in 2016 and on average that is more than 99 deaths a week and more than 14 deaths a day?

 

Rao: I am not familiar with those specific statistics.

 

Harris: Do you believe that when government is required to keep data and when employers are required to keep data it allows us to be better in terms of public policy and ensuring we avoid issues like workplace injuries and death in this case?

 

Rao: Yes, it certainly can be.

 

Harris: So, then why did you applaud the repeal of the rule?

 

Rao: Senator, just to be clear about my role at OIRA, we review rules that come up from agencies, those policies are set.

 

Harris: But let's talk specifically about this one. Why did you applaud the repeal of the “Volks” rule?

 

Rao: Senator, I don't actually recall discussing that in that speech.

 

Harris: This was just in 2018 that that happened. You don't recall that happened last year?

 

Rao: I don't.

 

Harris: You said when having a conversation with Senator Ernst, you said, “Women should take certain steps to avoid becoming a victim.” What steps do you have in mind that women should take to avoid becoming a victim of sexual assault?

 

Rao: Senator, it is just sort of a common sense idea about, for instance, excessive drinking. You know, that was advice that was given to me by my mother.

 

Harris: So, that is one step you believe women should take to avoid becoming a victim of sexual assault?

 

Rao: It is just a way to make it less likely. It is not to blame the victim. You know, rape and sexual assault are horrible crimes, but we are talking about what can you do to keep yourself safe.

 

Harris: Are there other steps that you believe women should take to avoid becoming a victim of sexual assault?

 

Rao: That is one of the issues that I discussed. I’m not sure if there are others.

 

Harris: So, do you believe that if a woman does not take those steps that she is at fault or partially at fault for what happens to her?

 

Rao: No.

 

Harris: So, what is the significance of taking those steps?

 

Rao: Well, I think it is just the significance of trying to avoid becoming a victim of any crime right? We try to take different steps to try to protect ourselves from horrible crimes, such as rape. And I think what we want is for women to not be victims.

 

Harris: So, your previous writings on date rape and sexual assault have been mentioned many times in this hearing. They certainly express strong opinions about the subject and, for that reason, raise concerns about your current perspective on these issues. You have, for example, in ‘93 said that, “Date rape exemplifies the attempts of the nurtured feminist to develop an artificial alternative world in which women are free from sexual danger and no always means no." In your current view, when does no not mean no?

 

Rao: Senator, no means no and I regret writing that when I was in college.

 

Harris: And you said a good way for a potential date rape is to be avoided is for a woman to stay reasonably sober. You went on to say, “If a woman drinks to the point where she can no longer choose, well, getting to that point was part of her choice.” Do you stand by those comments?

 

Rao: Senator, I was only trying to make a common sense observation about the relationship between drinking and becoming a victim.

 

Harris: I am concerned about your current views. Do you stand by those comments?

 

Rao: I do not and I would not express myself that way today.

 

Harris: And last week, I joined 35 of my colleagues in the Senate urging the Department of Education to rescind the proposed rule that would narrow the definition of sexual harassment and require colleges to provide live in-person hearings where an accused representative can cross-examine a survivor. We oppose the rule because it fails to account for the experience of survivors and it hampers the school's ability to respond to complaints. Under your leadership, has the Office of Information and Regulatory Affairs evaluated this proposed rule?

 

Rao: We did evaluate that rule. It is currently a proposed rule and the comment period just closed last week.

 

Harris: What is your opinion on the role?

 

Rao: Senator, my opinion on the rule is not what’s relevant in my current position.

 

Harris: Well, I would argue it is relevant because if you are actually confirmed on the D.C. circuit, you, of course, will be responsible for reviewing regulatory appeals. So, under your leadership, if the office has reviewed this rule, what is your opinion about its efficacy?

 

Rao: Well, Senator, this is a policy of the Department of Education as you stated and they drafted the rule. My understanding is that there were thousands of comments from the public. We take the public process of notice and comment rulemaking very seriously and it will now be up to the Department of Education to consider those comments in terms of finalizing the rule. Which we haven’t seen that final rule yet. But we will take -- one of the things we do at OIRA is make sure that the agency has responded to comments.

 

Harris: And my last question, Mr. Chairman. Once your office, under your leadership, has commented on the proposed rule, will you commit to recusing yourself to any challenges on this rule if it is litigated before the D.C. and you are confirmed?

 

Rao: Well, Senator, again, I will take recusal very seriously. I noted in my questionnaire that some of the issues arising at OIRA will require recusal, but I can’t prejudge what those will be until I have a case before me.

 

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