Of Kavanaugh, Ford, and Matters of Credibility

kavanaugh meme

Internet meme found on Facebook – attribution on image

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.

Every news agency from USA Today to CNN has a take on the matter, but no one can actually, factually ever know.

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.”

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20 thoughts on “Of Kavanaugh, Ford, and Matters of Credibility

  1. I pretty much agree with everything you said in your post, but why are the Republican members of the Senate Judiciary committee so adamant that the FBI should NOT conduct an investigation in this case, which it DID do in the Anita Hill case and which, in 1991, Grassley, Hatch, and Graham all supported but oppose today? Doesn’t that give pause and make it seem that there is a political protection scheme on Kavanaugh’s behalf going on?

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    • Might it not have some basis, Fandango, in the results of several previous FBI investigations that found nothing suspicious? What possible evidence could another one expect to find regarding an allegation of drunken activity 36 years ago where only 3 individuals were present and one claims to have no recollection of it? Further, James didn’t mention some 67 women who came forward as character witnesses to establish that such accusation does not fit the man they have known. But the most salient feature that I perceive in this entire matter is its timing, which shows it to be transparently a political delaying tactic at least, and a hatchet job at worst. Such considerations do not favor the veracity of the allegations, and are counter-indicative of a basis for further investigation of anything but the accuser’s motives.

      Liked by 1 person

      • The previous FBI investigations have been background checks. Now there has been a credible accusation of potential criminal wrongdoing and the precedent has been set in the past to have the FBI look into those allegations as a matter of course. So why not now? Also, isn’t it interesting that the Republicans were able to almost miraculously produce a letter signed by sixty-something women attesting to Kavanaugh’s character within a day or two of the accusations having been made? How did they do that so quickly? Or did they have it already in hand just in case something like this came out. And have any of those women who allegedly “came forward” been corroborated by independent resources?

        What is the rush, anyway? If the Republicans had agreed to let the FBI interview the three individuals involved, the woman’s therapist, her husband, and perhaps some others as soon as the allegations were levied, that investigation would probably be close to having been completed by now, or certainly would be by the middle of next week. The FBI’s investigation of Anita Hill took all of three days. If there is nothing to hide, let the FBI look into it. And if, as you suggest, there is no veracity to the allegations, the matter will be put to rest.

        And one more thing. You asked about the motives of the accuser. Why would anyone put themselves through what this woman is putting herself through if there was nothing to her accusations?

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      • Indeed, Fandango, what kinds of motivations could there be? Political feelings seem awfully strong these days. And there could be a question about false memories, depending upon why this woman was seeing a therapist, and what sorts of treatment she has had. If she believes a falsehood elaborated from a mistaken or displaced adolescent memory or dream, her feelings would be valid though horribly wrong and unjust. Alternatively, perhaps other less-than-honorable motivations could exist. But we might ask what could be derived from a search for evidence of this accusation. What would we be able to determine about a judge who has decades of honorable experience as an adult, who in one instance of adolescent drunkenness, might have behaved inappropriately? To all accounts, no crime was actually committed, even if there was briefly a perceived threat of one. And that perception is definitely in question.

        The “rush”, as you called it, is merely to maintain and complete a process that was already all but completed, without unnecessary delay. I agree, though, with your inference that someone might’ve anticipated a last-minute Anita Hill tactic, and interviewed in advance women who could vouch for the candidate.

        Liked by 1 person

      • “…someone might’ve anticipated a last-minute Anita Hill tactic, and interviewed in advance women who could vouch for the candidate.” Or more likely, someone KNEW that this incident occurred before the accuser came forward and put together the list of names to thwart the threat IF it became public. Besides, this is an election year. And you know Mitch McConnell’s position on allowing a president to nominate a Supreme Court Justice, right? Let the people decide and wait until after the midterms. And, by the way, the last president whose SCOTUS nomination was held up wasn’t an unindicted co-conspirator in criminal prosecutions, was he. (Yeah, I know: NO COLLUSION; WITCH HUNT.)

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  2. Let’s look at this. The FBI became involved in investigating Hill’s allegations against Thomas because then President Bush ordered them to. Apparently, Senator Dianne Feinstein lacks sufficient authority to order the FBI to do the same thing, but President Trump, if he so chose, could do so.

    Interviewing Ford’s husband and therapist would be fruitless. The therapist’s relevant notes have already been released, and after six years, said-therapist might not even recall the session. Besides, anything Ford told her husband or the therapist would be hearsay coming from them, since Ford is the source.

    As far as statements from sixty-something women regarding Kavanaugh’s character and behavior toward women, as PL said, the GOP might have anticipated that the Dems would play the “sex abuse” card in advance. That’s not to say that Ford’s allegations are merely a political ploy, but in political brinkmanship, all bets are off.

    Oh, and relationship to Ford and her family receiving death threats, so are Kavanaugh and his family. It’s regretable that extremists on both sides of the issue feel it necessary to threaten murder in order to advance their goals or assauge their fears.

    Regarding my posting a screenshot from actor LeVar Burton’s twitter feed, it illustrates why I can’t have heroes, at least real life heroes anymore, because, in the end, unless I conform to their standards without question (and I ask a lot of questions), the very least I can expect is to be discarded. More’s the pity. I’m sorry for Mr. Burton’s pain because of racism, but that’s not the only kind of pain.

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  3. I posted this mainly to show that, no matter what our political outlook is, and no matter how we experience these issues emotionally, we can’t actually know the facts regarding the allegations involved. That said, it certainly seems that at least Dianne Feinstein (and probably Hillary Clinton) have a double standard in terms of just who is accused of sexual misconduct.

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    • I wouldn’t accuse the entire GOP of desperation, simply because Ed Whelen was overanxious or overzealous to offer an alternative theory about the Ford allegation.

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  4. This just in: sentenced to 3 to 10 years in state prison for sexual abuse cases dating back to 2004. He’s 81 years old and could very well die in prison.

    I only bring it up here, because as of now, two women have come forward accusing Kavanaugh of sex related misconduct, and it only remains to see how credible the allegations are. I doubt he’ll go to prison, given the most serious case occurred in the 1980s with no physical evidence to substantiate, but his reputation will be tarnished for the rest of his life, even if he’s allowed to retain his current position.

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  5. Apparently, a new Cavanaugh accuser has come forward, but her allegations are disturbing for a number of reasons:

    In an explosive statement released by (her attorney Michael) Avenatti, Swetnick claimed that in the 1980s she witnessed efforts by Kavanaugh and his classmate, Mark Judge, to get teenage girls “inebriated and disoriented so they could then be ‘gang raped’ in a side room or bedroom by a ‘train’ of numerous boys.”

    “I have a firm recollection of seeing boys lined up outside rooms at many of these parties waiting for their ‘turn’ with a girl inside the room,” she alleged in the statement. “These boys included Mark Judge and Brett Kavanaugh.”

    Swetnick alleged she became one of the victims of “one of these ‘gang’ or ‘train’ rapes.” She did not say that Kavanaugh had sexually assaulted her.

    Of course, it’s disturbing that Kavanaugh and Judge, as teens, (allegedly) maliciously got teenage girls intoxicated and then arranged gang or train rapes. If true, there may be scores of victims out there, and even after all this time, the cases could go criminal, or at least result in massive civil trials.

    The other part is that Swetnick apparently didn’t do anything to protect these victims. I know that victims themselves often don’t disclose for long periods of time after their assault, but supposedly Swetnick knew exactly what was going on and did nothing either during the event or afterwards. It’s one thing to keep your own assault private, and another thing entirely to fail to protect girls who presumably were your friends and classmates.

    All that aside, that’s three separate women coming forward, with the potential of more to come, which looks pretty grim for Kavanaugh.

    Oh, as for attorney Michael Avenatti, what kind of lawyer protects his client’s privacy by putting her name and photograph on this twitter account?

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