Whom to Believe?
Like many of you, my wife and I watched the testimony of Dr. Blasey Ford and Brett Kavanaugh. Then we listened to the politicians and commentators dissect the testimony on television and read about it in newspapers and periodicals. Finally, as is usual for husbands and wives, we talked about it all.
Because I once prosecuted and later defended many people accused of serious crimes, including rape and sexual assault of every kind, my wife asked a very good question: What would have happened all those years ago if Dr. Blasey Ford had complained to the police? Without the slightest hesitation, I said, “Nothing.” After further reflection, my answer stands. My experience taught me that police and prosecutors are always looking for some decisive, controlling and irrefutable fact that will prove beyond a reasonable doubt a crime has occurred. ‘Back in the day’, if there was no visible evidence of physical injury, most rape cases were rejected. All rape cases involving persons who knew each other were viewed skeptically.
If that was the attitude about rape cases, and it was, you can guess what would have happened to a complaint made by a teenager to the effect that she had been at an underage drinking party and had been held down on a bed by a drunk teenager, a hand held forcibly over her mouth, and assaulted, but not raped. I’m sure that the police would have politely listened and taken the report, but I’m equally sure nothing would have come of it. The police and prosecutors would have said it’s not enough to get a conviction. To themselves in private, they would be saying, “It’s just a bunch of drunk kids.” As shown by the vitriolic accusations made against Dr. Blasey Ford, not much has changed.
Viewed from the standpoint of Dr. Blasey Ford at that time in her life, I can easily understand why she didn’t make a formal complaint. If she had complained publicly, she would be accusing a well known and well liked young man of assaulting her while he was drunk at a drinking party for highschool kids at someone else’s home without having a visible injury or a witness to back her up. There is also every reason to believe that the now involuntarily famous Mark Judge, the witness, would have defended Brett Kavanaugh and himself even more vigorously then than he is now. Again, from her standpoint at the time, it is likely she thought she would be condemned and socially ostracized by her peers for ruining the life of one of their group and she may have thought she would be blamed for what happened or in trouble herself for even being there. No teenager is likely to speak out in those circumstances because the risk and cost is just too high.
What we now know is that a very high percentage of rapes and sexual assaults are committed by persons who know their victims and we know that evidence of actual physical force is not always present. We also know that most rapes and sexual assaults go unreported, probably for some of the same reasons Dr. Blasey Ford chose not to report the assault against her. Finally, we know that the dark side of human nature that wants to blame the victim is still very much alive and well. We are all more than willing to say something like this would never happen to us or that we would do something differently.
To me, the interesting thing is that Dr. Blasey Ford was such a compelling witness that even the most skeptical and partisan of the politicians now agree that “something happened”, but they will never agree that what happened involved Brett Kavanaugh, so they are left with the argument that she must somehow be mistaken as to whom was involved. I have to disagree on that. Dr. Blasey Ford knew both boys in the room. They were not strangers. I also found her testimony about the details she remembered to be convincing. My experience in talking with victims, asking questions of them at trial and even cross examining them in trials, is that they often remember small, inconsequential details that would never occur to anyone as being important or as being important to fabricate. Eyewitness identification can be faulty, but the circumstances surrounding this event do not readily lend themselves to that argument. I found it very believable she would remember the laughter of Kavanaugh as he covered her mouth and she struggled against him. Being laughed at while you are being terrorized will leave a lasting memory. For an interesting scientific analysis of the language of deception, read the work of Dr. James W. Pennebaker of the University of Texas, who studies this topic.
When it gets right down to it, it is hard to accept a point of view that admits Dr. Blasey Ford is a truth teller on everything but the fact that it was Brett Kavanaugh who did this.
The idea that it is absolutely essential to confirm Brett Kavanaugh and no one else is a mistake. There are many, many qualified people that could be confirmed more easily and with less political damage to both sides.
On Wednesday, October 3, 2018, Donald Trump attended a campaign rally in Mississippi. During that rally he mocked and belittled Dr. Ford and posed himself and Brett Kavanaugh as victims. This was vile and despicable. However, it did “rally his base” and it had the added benefit of diverting the public’s attention away from the 8 or 9 page, 15,000 word bombshell story in the New York Times which explained in great deal how Trump and his family defrauded federal and state tax authorities out of millions and millions in taxes and exposed Trump’s lies about how he got his wealth.
Trump image and video property of CBS News.
Ford / Kavanaugh image is property of Jim Bourg and Saul Loeb, distributed by the Associated Press
Trump image and video is property of CBS News.