The most dangerous myths are often the ones people mistake for common sense.
Why This Question Matters
In my last post, I wrote about an uncomfortable institutional question: whether power itself can begin to shape the conditions under which accountability is supposed to occur within the International Criminal Court (ICC). This post turns to a second question, no less consequential: whether assumptions can begin to shape judgment before accountability is formally tested.
Even where a disciplinary mechanism is formally allowed to proceed and no overt interference can yet be shown, allegations of sexual misconduct involving senior officials can still be distorted by something far more ordinary than politics. They can be distorted by assumption. Not a legal assumption, but a human one.
Long before institutions reach conclusions, people often form their own. In allegations of sexual assault, those judgments frequently begin not with the accused’s conduct but with the complainant’s conduct. And in L’Affaire Khan, familiar questions instinctively arise:
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- Why did she continue traveling with him?
- Why did she continue going to his residence in The Hague?
- Why did she not leave the job?
- Why did she not report it sooner?
- Why did she not go to the police?
These questions are being asked privately and publicly. From all appearances, they are being asked by some within the ICC’s political organs and will most likely be asked during the disciplinary proceedings. Like the proverbial elephant in the room, they cannot be ignored.
Some argue that because the complainant continued working with him, traveling with him, and meeting with him, and did not immediately report what she says occurred, the allegations must be false. Others seem prepared to accept that some conduct may have been inappropriate but not sufficiently serious to warrant institutional consequences, as though the absence of visible violence somehow reduces the psychological pressure of coercive power dynamics to mere indiscretions.
This line of reasoning is not new. Nor is it especially enlightening. If anything, it reflects one of the oldest and most persistent errors in the way institutions assess sexual misconduct allegations: the belief that there is a recognizable way a “genuine” victim is supposed to behave.
Having represented both men accused of sexual offenses and women whose years of abuse culminated in desperate acts of deadly violence, I have learned that people who have experienced trauma rarely behave as outsiders expect. In both defence and prosecution work, that lesson emerges early: human behavior under pressure rarely conforms to the tidy narratives others later impose.
In many respects, this is where these cases are most vulnerable to error. Not necessarily because decision-makers act in bad faith, but because it is remarkably easy – and often intellectually lazy – to substitute stereotype for understanding.
What We Know – And What We Do Not
I do not know what happened between Khan and the complainant. That much I do know.
Like everyone else outside the disciplinary process, I know only fragments. Some come from responsible reporting, some from selective leaks, and some from advocacy presented as journalism.
That alone should counsel restraint. Yet it is troubling that some advocacy organizations, commentators, and even a United Nations Special Rapporteur moved with unusual speed to characterize the complaint as politically motivated, fabricated, or part of a broader campaign to neutralize Khan because of his Gaza investigation and his issuance of arrest warrants for Israel’s Prime Minister and former Minister of Defense.
That may ultimately prove true. It may also prove entirely false. At this stage, neither proposition can honestly be stated with confidence.
Yet narratives have already begun to harden. Selective excerpts from confidential materials have been repeated out of context and, in many cases, misleadingly, as if they were findings. Partial accounts have been presented as though the panel of expert jurists had issued an exoneration. Insinuation has often been offered as a substitute for evidence. What has been emerging, less subtly with time, is an increasingly visible effort to shape a result-oriented narrative before the underlying facts have been fully tested.
Through repetition, an impression has seemingly begun to form, not only in the public sphere but potentially among the very decision-makers who may eventually be called upon to assess the matter impartially. It requires only acknowledging what appears increasingly visible: that the dispute is being contested not solely through formal process, but through a parallel effort to influence how the process itself is understood.
Courts have long recognized the danger of allowing narrative to substitute for evidence. Experienced judges understand how easily confident claims – particularly those repeated often enough – can begin to deflect attention from the facts that require careful and dispassionate examination. Those entrusted with evaluating allegations in disciplinary proceedings should be expected to exercise the same discipline, because both the complainant and the respondent are entitled to a process guided by evidence rather than impression.
When Motive Becomes a Narrative
Modern jurisprudence and trial advocacy in both domestic systems and international tribunals have moved away from outdated assumptions about how victims of sexual violence are expected to behave, precisely because trauma does not present uniformly and credibility cannot be measured against stereotypes alone. This legal evolution matters here. Before one can fairly assess whether a complaint is credible, one must first confront a more basic misconception: there is no such thing as a “normal” victim.
Once those assumptions begin to shape perception, they often give rise to a second question – one that may appear logical on its face but can become deeply misleading when framed too simplistically: not merely why the complainant behaved as she did, but why she would make an allegation of this gravity at all. If the complaint is not true, what is said to explain it? What, precisely, is supposed to have motivated it?
From a defense perspective, I have always regarded the question of why a complainant would make false accusations as one that cannot be brushed aside. It is the kind of question any serious defence must eventually confront. In that respect, it is not altogether different from defending a woman charged with killing an abusive partner after years of violence, where the immediate reaction is often the same: if the abuse was real, why did she not simply leave? Yet anyone who has handled such cases understands that human behavior under prolonged fear rarely conforms to outside assumptions. A person may appear to have had choices that, psychologically, she could not yet make.
In allegations of sexual misconduct – particularly those lacking eyewitnesses or contemporaneous physical evidence – the defence, despite the presumption of innocence and the absence of any obligation to prove anything, must still, from my experience, grapple with motive. When there is no obvious personal history, no prior pattern of fabrication, and no immediately discernible reason someone would voluntarily make such an allegation, that question inevitably moves to the center of the case: what, precisely, would explain it if the complaint were false?
That question is especially important here because it cannot be answered by broad invocations of political conspiracy alone. Even if one assumes, for the sake of argument, that larger institutional or geopolitical forces may be circling in the background, that still does not explain why this particular complainant would choose to place herself at the center of such a storm – risking her career, her privacy, and the personal consequences that often accompany allegations of this kind.
At some point, a defence built around motive must do more than articulate an alleged plot. It must also account for the person said to be participating in it. That is where the publicly advanced narrative in Khan’s favor becomes more difficult to sustain. Thus far, the explanation reflected in sympathetic coverage and supportive commentary has been that the complaint forms part of a broader political effort to remove Khan from office. According to that account, unnamed actors – sometimes implied to be aligned with Israel, hostile states, or political opponents of the ICC’s recent investigations – have orchestrated a campaign to destroy him.
Perhaps that claim will eventually be substantiated. At present, however, what stands out is not simply the seriousness of the accusation, but the continuing absence of any publicly verifiable evidence to support it.
The claim that the complaint forms part of a broader campaign against Khan has been repeated often. It has been amplified by sympathetic outlets. It has circulated through media channels unusually receptive to his position. But repetition is not corroboration, and insinuation is not proof. If such evidence exists, it has yet to emerge in any verifiable form. That absence may ultimately prove nothing. But when a defence places political conspiracy at the center of its public response, the absence of verifiable support becomes part of the analysis itself.
Too often, adjudicative bodies fill evidentiary gaps with assumptions. If a complainant does not behave as others imagine a “genuine” victim should, the search for motive can quietly become a substitute for the harder task of examining the facts themselves. And in institutions built on credibility, perception itself can begin to shape judgment long before the evidence has been fully tested.
There is another point that cannot be ignored. Given how much of the confidential process has already reached the press – often in ways favorable to Khan – it is difficult to avoid the inference that if compelling evidence existed to support those conspiracy claims, one might reasonably expect that evidence to have surfaced already.
Additionally, selective disclosure can act as a form of advocacy. When parts of a confidential process are shared in a manner that consistently benefits one side, they can influence perceptions long before any final decisions are made, and even before disciplinary proceedings officially begin.
At that point, the distinction between defending a case and attempting to shape the conditions under which it will ultimately be judged can become increasingly difficult to ignore. That does not prove anything about the underlying allegations. But it does raise a legitimate question about whether the case is being tested by evidence alone – or whether the environment surrounding that evidence is itself becoming part of the defence.
When Conduct Becomes the Case
When allegations of sexual assault arise in the workplace, particularly where the complainant remained in the job, continued to work alongside the accused, or did not immediately report what allegedly occurred, people often begin with a different question than the one they should.
They do not first ask what happened; they ask instead why she behaved the way she did afterward.
As I have noted, these are neither improper nor unreasonable questions. In any serious investigation, they are necessary. Allegations of sexual misconduct, particularly those involving senior officials, should never be insulated from scrutiny simply because the subject matter is uncomfortable. Not every complaint is well-founded. Any process genuinely committed to finding the truth must be prepared to ask difficult questions of everyone involved.
The difficulty lies elsewhere.
It arises when those questions are asked under the unspoken assumption that there is such a thing as a “normal” response to sexual coercion. There is not. That remains one of the most persistent and damaging misconceptions in cases of sexual misconduct. Too often, credibility is measured not against evidence but against expectation: how a decision-maker imagines a “real” victim would have behaved under the same circumstances. The inquiry can subtly shift from examining what may have happened to measuring whether the complainant’s behavior conforms to someone else’s private understanding of what trauma is supposed to look like.
This instinct may be human, but it is deeply unreliable. Modern courts increasingly recognize this. Across domestic legal systems and international tribunals alike, judges have come to understand that delayed reporting, continued contact, and outwardly contradictory behavior are not inherently inconsistent with trauma.
Human beings do not respond to fear, dependency, shame, or coercion in uniform ways, and credibility cannot be fairly measured against a stereotype of how suffering is supposed to present. Some people withdraw. Some minimize. Some deny. Some continue functioning outwardly as though nothing has happened because acknowledging what happened carries consequences they are not yet prepared to face. Some remain where they are not because nothing happened, but because leaving may feel more frightening than staying.
This is often where misunderstanding enters the process long before any formal conclusion is reached. In institutions already shaped by hierarchy, power, and reputation, those misunderstandings rarely remain neutral.
The Myth of the “Expected” Response
One of the most persistent problems in sexual misconduct cases is that people often evaluate allegations not on evidence but on imagination. They do not begin by asking what may have happened. They begin by asking how they believe they would have behaved:
“I would have left.”
“I would have screamed.”
“I would have reported it immediately.”
“I would never have traveled with him again.”
“I would not have gone back.”
At first glance, those reactions can sound like common sense. But common sense is not always a reliable compass when human beings are navigating trauma. What those statements usually reveal is not how a complainant should have behaved. They reveal how an observer, safely removed from the circumstances, believes a victim ought to behave. Those are not the same thing.
A person confronting sexual coercion in a deeply unequal professional relationship is not responding from a place of comfort and distance. She is responding in real time – often while trying to make sense of fear, dependency, confusion, humiliation, and self-preservation all at once.
No two people experience coercion in quite the same way. They do not process fear in the same way. And they do not respond to trauma in the same way. Some confront. Some freeze. Some minimize what happened. Some rationalize it. Some dissociate from it. Some continue functioning outwardly while struggling inwardly to make sense of what they have experienced. Some do what many trauma survivors do: they try to restore normalcy by behaving as though nothing has happened, because acknowledging what happened may feel even more destabilizing than denying it.
What appears from the outside as a contradiction can, from the inside, be survival. That reality is now increasingly recognized in both law and psychology.
Courts in many jurisdictions have become more cautious about drawing adverse inferences merely because a complainant delayed reporting, remained in contact with the accused, returned to work, or failed to react as others might expect. The reason is straightforward: trauma often produces responses that can seem counterintuitive to those who have never lived through it.
Fear does not always look like fear. Power does not always announce itself as power. And coercion does not always resemble the crude stereotypes that people still carry in their minds. Sometimes the most profound forms of pressure leave no visible mark at all: no bruises, no broken objects, no dramatic scene. Only silence. Accommodation. Confusion. And a series of decisions that may seem incomprehensible until the full context is finally understood.
This is why the notion of the “perfect” victim remains so dangerous. It creates an invisible script by which real people are judged: a genuine victim would have resisted; a genuine victim would have left; a genuine victim would have reported immediately; a genuine victim would never have returned.
But there has never been a single script for trauma. There has only ever been a human being trying to navigate circumstances that others later dissect from the safety of hindsight. Courts across legal systems around the world have increasingly come to recognize what institutions – and by extension disciplinary bodies – sometimes still struggle to accept: there is no universal template for how a victim is supposed to behave.
The absence of a supposed “perfect” reaction is not proof that nothing happened. More often, it shows that human beings are more complex than the assumptions used to judge them. When institutions – and fact-finders in disciplinary proceedings – mistake those assumptions for evidence, the search for truth can subtly give way to something else entirely: the substitution of stereotype for judgment.
Context Matters
If the earlier question was whether power can shape process, this is the equally uncomfortable question of whether assumptions can begin shaping judgment before the evidence has been fully examined.
That misunderstanding becomes even more pronounced in hierarchical workplaces, where power can shape not only the conduct itself but also how it is later interpreted. To outside observers, continued contact with an alleged perpetrator can seem incomprehensible. If the conduct was truly unwanted, the reasoning goes, why continue working for him? Why board another flight? Why remain in the same room? Why go to his home in The Hague? Why not simply resign?
Those questions may seem straightforward from a distance, but they are often far less so within the relationship. A junior employee may be weighing considerations invisible to others: financial dependence, professional ambition, family obligations, cultural shame, fear of retaliation, fear of disbelief, or fear that speaking up may destroy not only a career but an entire life built over years. And these pressures rarely operate in isolation. They often arrive all at once.
In this case, those realities cannot simply be dismissed. The complainant was not merely an employee. She was a subordinate working within one of the most politically sensitive institutions in international law, under a superior whose authority extended well beyond the ordinary professional hierarchy.
She was reportedly managing family responsibilities at home, including assisting a mother undergoing cancer treatment. She also came from a cultural background in which allegations of sexual intimacy outside marriage may carry profound social consequences, even where the conduct itself was unwanted.
None of that proves the allegations. But it may help explain why conduct that appears puzzling from the outside may feel tragically rational from the inside. This distinction matters. Because understanding conduct is not the same as excusing it. And asking difficult questions is not the same as asking them without context.
Consent Cannot Be Measured by Resistance Alone
Another outdated assumption still lingers in cases like this one.
For years, allegations of sexual assault were often viewed through a crude binary: if there was no physical struggle, there was no assault; if there were no bruises, there was no coercion; if she stayed, she must have agreed.
That understanding has long since become untenable. Modern legal and psychological understanding recognizes that coercion can operate through authority as effectively as through physical force. Pressure can be psychological, economic, or professional, and it can be implicit. Sometimes the most powerful coercion is never spoken aloud.
A subordinate often does not need to hear a threat to understand what is being implied, what may be lost, or what consequences may follow. The possibility of losing employment. The fear of professional isolation. The knowledge that a superior controls advancement, reputation, and future opportunity. These pressures can settle over a person like a silent weight, shaping consent in ways less visible than violence, but no less real.
Courts in many jurisdictions now caution against drawing adverse inferences solely from delayed reporting or continued contact, because trauma and coercion rarely present as outsiders expect. That is why the absence of visible resistance cannot be automatically mistaken for genuine consent.
Scrutiny Must Run Both Ways
None of this means a complainant should be insulated from scrutiny. Quite the opposite.
If allegations of this gravity are to be fairly assessed, difficult questions must be asked. But the same principle must apply to the respondent. If the complainant is asked why she stayed, why she traveled, why she delayed reporting, and why she remained silent, the respondent must also be asked difficult questions of his own:
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- Questions about the relationship
- Questions about boundaries
- Questions about power
- Questions about influence
- Questions about whether the case is being defended through evidence alone, or through efforts to shape the atmosphere around that evidence
- Questions about attempts – direct or indirect – to influence how the allegations are understood inside and outside the institution.
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Fairness does not mean scrutinizing one side while shielding the other. It means applying equal seriousness and intellectual rigor to both. Anything less is not neutrality; it is asymmetry disguised as procedural language.
The Larger Institutional Risk
At institutions like the ICC, cases of sexual misconduct involving powerful, high-ranking officials are never merely about two individuals. They become tests of institutional character. They reveal whether an organization – particularly an international court that claims to uphold safeguards against abuse – can distinguish evidence from assumptions, separate authority from credibility, and examine allegations involving senior officials without allowing office or the perceived importance of its holder to distort the inquiry. This may be the harder test for the ICC.
Institutions do not always fail by ignoring evidence. Sometimes they fail because they mistake familiar assumptions for objective judgment. In cases of sexual misconduct, few assumptions have proved more persistent — or more damaging — than the belief that there is such a thing as a “normal” victim. There are only individuals shaped by history, fear, vulnerability, dependence, and power in ways no institutional script can fully predict.
When institutions charged with investigating allegations of sexual misconduct – particularly sexual assault – mistake stereotypes for evidence, justice rarely disappears in a single dramatic moment. It recedes more quietly than that. It begins when assumptions about how a complainant should have behaved are allowed to compete with the facts of what may have occurred. It begins when preserving institutional equilibrium becomes easier than confronting the possibility that power, left insufficiently examined, may have distorted the process itself. It is often in this space – between reflex and rigor – that institutions risk failing both the complainant and the accused.
Fairness in these cases does not lie in shielding one side from scrutiny or the other from accountability. It lies in ensuring that allegations of this seriousness are examined with discipline, context, and the same commitment to truth that justice demands of everyone entering a courtroom. A disciplinary proceeding should be no different. Institutions preserve their credibility only when they show they are prepared to do exactly that.
About Author
It’s a good thing that — as has been so widely reported Karnavas could hardly be unaware of it — one of the judges on the Bureau-appointed Panel is the first Coloured woman to ever sit on South Africa’s Constitutional Court and is widely-respected in her country for her groundbreaking judgments protecting women from sexual violence. Her presence on the Panel provides reassurance that none of the stereotypes Karnavas discusses infected the unanimous decision of the Panel that the evidence did not establish sexual misconduct.