Disclaimer, Trigger Warning, or whatever you want to call it: Depending on your politics and probably several other factors, this essay might tend to raise your blood pressure, so if you have strong feelings about the Brett Kavanaugh SCOTUS confirmation hearings before Congress, you might want to pass it up for something else (Yes, I’m going to get in trouble for posting this).
I’m sure just about everyone in the U.S. and probably a lot of people in other countries are aware of the controversy surrounding the Brett Kavanaugh Congressional hearings to determine if he should be confirmed as the next Justice on the U.S. Supreme Court, the highest court in our nation. Opinions about whether or not to confirm Kavanaugh in the News and Social Media were pretty much split down party lines before the sexual assault allegations made against him by Christine Blasey Ford, but then things just exploded.
I’m not going to go into the details of the allegations. You’re probably already well-versed in the details, and probably most of you reading this (like most everyone else) have already reached a conclusion about the validity of Ford’s claims.
What I am going to do is process the credibility of Kavanaugh and Ford.
First off, let’s get something out of the way. Only three people in the world factually know what happened between Kavanaugh and Ford over three decades ago when he was 17 and she was 15. Those three people are Kavanaugh, Ford, and the other male in the room at the time of the alleged assault.
That’s it. No one else knows for sure what happened because we weren’t present and there wasn’t a hidden camera in the room to record the event.
But a lot of people have an opinion and are behaving as if their opinion is evidence. It’s not.
Kavanaugh denies the allegations, but we should expect that, whether the allegations are factual or not, so no hope there.
Ford has some things in her favor relative to credibility. First off, she did tell her therapist and her husband about being sexually assaulted in 2012, a full six years before the Kavanaugh hearings. The therapist took notes, which have been produced confirming the disclosure. What those notes don’t contain however, is the name of the alleged assailant, even though Ford and her husband state that she referred to Kavanaugh by name during the therapy session(s).
Also, Ford should have known she’d take a tremendous amount of very public heat once she disclosed her identity. According to the Chicago Tribune, an “alt-right Twitter account” leaked the Ford’s address and phone number, so she is now very vulnerable to protests, peaceful and otherwise. Why risk facing that sort of harassment (my understanding is that her family has been driven from their home and she’s received death threats) if you weren’t being truthful, and this was all some sort of political hack job against someone whose politics you don’t want sitting on the high court?
Oh, the high school yearbook connection plus some casual comments Kavanaugh made over the years is sketchy at best, so I’m tossing them out of consideration.
Is Ford being truthful, is she lying, or is her memory faulty? Who knows? 35 years is a long time, and it’s certainly possible she has a faulty recollection, but then again, the event, assuming it occurred, would be so traumatic that it’s something most people would remember without mixing up who the actual assailant was.
The timing of the disclosure is suspicious, especially since Kavanaugh has been investigated multiple times by the FBI when being considered for various positions over the years. On the other hand, it’s not uncommon for sexual assault victims, particularly those assaulted as a child or in their teens, to not disclose for years or even decades, and Ford may have felt that Kavanaugh sitting on the Supreme Court was the final straw, particularly given that politically, the two of them are as different as night and day.
I know that Senator Dianne Feinstein has called for the FBI to investigate, but the FBI and Justice Department, as of two days ago, said they have no plans to reopen their investigation. The purpose of a federal investigation is to determine if the subject is a national security risk. They determined he isn’t, so the case is closed.
It occurred to me that they could both be telling the truth. If, indeed, Kavanaugh were “falling down drunk” when the incident happened, he may really not remember it. That is, to the best of his recollection and from his perspective, he’s telling the truth.
Again, this is supposition because there’s no way of knowing factually.
So what do we do? We, meaning you, me and anyone reading this, can do nothing that will make any difference. It’s quite probable Ford will testify before Congress (but not on Monday), and then Congress will have to decide which person is more credible, Kavanaugh or Ford. Yes, I’m sure that judgment will be filtered through partisanism. More’s the pity. I’m rather fond of facts, myself.
According to both The Encyclopedia of Violence and the paper False Allegations of Sexual Assualt [sic]: An Analysis of Ten Years of Reported Cases, “it is generally agreed that, for about 2% to 10% of rape allegations, a thorough investigation establishes that no crime was committed or attempted.”
So Ford has the odds on her side along with everything else I’ve mentioned, which Congress should take into consideration, along with her upcoming testimony. It doesn’t mean the assault absolutely occurred, but put all together, it seems likely that it did or could have occurred.
Here’s a wrinkle, though. Given the whole #MeToo movement, usually once someone discloses that they’ve been assaulted by a high-profile individual (Harvey Weinstein, Bill Cosby, and so on), then more people come forward with additional allegations, so much so, that the shear preponderance of accusations against the individual establishes credible proof that the person in question is a sexual predator.
So far, only Ford has come forward. To the best of my knowledge from News and Social Media sources, no other individual has accused Kavanaugh of sexual or any other kind of assault. What that might mean, assuming Ford’s statements are accurate, is that when he was 17 years old, Kavanaugh got so drunk that he lost control of behaviors he normally would have kept in check, and attempted to assault the then 15-year-old Ford. It was an isolated incident rather than an indicator of a pattern of sexually violent behavior. It doesn’t make him a serial rapist, it makes him (back then) young, drunk, stupid, and potentially violent). No, that’s no excuse, but it becomes relevant a little further into my essay.
Actually, the lack of other victims (that we’re aware of) could be something that damages Ford’s credibility. It’s hard to believe that Kavanaugh would assault a person once, get away with it for decades, and not try to do it again.
To my way of thinking, this is still a developing situation. After Ford testifies, we’ll see how Congress responds. Frankly, without an investigation, and probably even with one, it will still come down to “he said, she said,” and who Congress decides to believe.
Oh, and for those folks out there who are calling Justice Clarence Thomas a “sexual predator” because of Anita Hill’s allegations against him in 1991, and saying that we don’t need two such predators in the SCOTUS, my understanding is that then-President George H.W. Bush ordered the FBI to investigate Hill’s allegations. The investigation was finished in three days, and the conclusion was that the allegations were unfounded, which is something of a blow to Hill.
Just to be clear, there are three possible conclusions to any investigation, substantiated, unsubstantiated, and unfounded. Substantiated means that there was sufficient evidence discovered to conclude that a crime was committed and to recommend the case for prosecution (assuming a criminal case). Unsubstantiated means there was insufficient evidence that a crime occurred. It doesn’t mean conclusively that no crime happened, but the evidence either wasn’t there or there wasn’t enough of it to substantiate.
Now here’s the kicker. Unfounded means no crime occurred, and in fact, there was evidence indicating that the crime never happened and that, most likely, the allegations were false. In other words, someone got their facts terribly wrong, or they lied.
Now I don’t have my crystal ball handy, and maybe Thomas totally got away with smearing Hill’s reputation such that she appeared to lack any credibility. But to a legal standard, Justice Thomas was found not to have committed a crime against Ms. Hill, so people, such as Chelsea Handler, making public statements that Thomas is a “sexual predator” could be sued for slander if the statements are spoken and libel if they are made in print.
As for Kavanaugh, whatever your beliefs about this situation and regardless of your politics, as the great Yogi Berra once quipped, “It ain’t over till it’s over.”