The Pence rule is the opposite of a good defense in case of an allegation and, in fact, might leave the accused executive in an even more vulnerable position. To illustrate the point, we can consider the career of Supreme Court Justice Brett Kavanaugh, who might have had more trouble defending himself against Christine Blasey Ford’s sexual assault allegation had he followed the Pence rule.
Say an executive with a successful Wall Street firm sits in a courtroom in attendance of a pretrial conference. The judge has just ruled that the sexual harassment plaintiff will be allowed to introduce “climate” witnesses — that is, witnesses who will testify that the entire company permits or even promotes a climate permissive of sexual harassment of women. The jury will hear from three or four women outside of the executive’s inner circle who may not actually have had any direct contact with the executive.
The judge also rules that the defense will be allowed to put on rebuttal witnesses. The corporate lawyer turns to the executive with a whispered question: “Quick, I need the names of three or four women who can testify that you act like a gentleman when you’re alone with them in the workplace.”