Ford vs. Kavanaugh: Where is the Evidence?

Today, as most of the country knows, Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford testified before the Senate – she to accuse him of sexual assault some 35 years ago, he to defend his life’s work, his good name, and his future. What a day. It was wrenching watching them both.

On the level of pure subjective emotion, I found them both highly credible. My first thought was that maybe the truth lies somewhere in between. After all, two people can have totally different memories of an experience, and even when both acknowledge something occurred, can have completely different accounts of it. Our criminal justice system is designed to allow for this truth; hence, the mandate to carefully assemble and weigh evidence, which starts with police investigation, and continues through the court system.

Until this evening, I was inclined to believe the truth was somewhere in between. Because Dr. Ford was so credible, and because it is hard for me to imagine a woman coming forward to make such an accusation – which surely upends her life, exposes her and her family to unfortunate threats, etc. – my theory was that something did happen – maybe drunken roughhousing that was no big deal to the boys involved, and which they may not even recall, but that loomed large to a sensitive girl who really may have been in fear for her life. I still think that may be. But the more I consider what transpired today, the more I return to the bottom line that there is zero forensic evidence this occurred, and zero corroboration from anyone, despite Dr. Ford’s claims that there was another person in the room and several other people in the house.

In short, she does seem credible, but so does he. And she has presented absolutely no evidence that this occurred, other than her moving opening statement. Accusations – no matter how emotionally compelling – alone are not enough to convict someone in a court of law, which the Senators voting on Kavanaugh’s confirmation very well know, as many of them are attorneys.

The fact that Ford’s best friend, Leland Ingham Keyser, has testified to the Senate Judiciary Committee that she has no recollection of the party, and says she does not know Brett Kavanaugh, as well as the fact that Dr. Ford concedes she did not tell Ms. Keyser, her best and lifelong friend, or her own mother, about the alleged assault – which she has characterized as so traumatic it continues to haunt her decades later – at the time, or at any time afterward, strikes me as odd (Ford has said Keyser was among at least three others at the party, including Mark Judge and P.J. Smyth. Both of these men deny, on penalty of perjury, any recollection of such an incident or party).

At moments today, listening to Senators pick through Kavanaugh’s high school yearbook, lifting references and words and insinuating sinister and salacious meanings, I felt they were attempting to create a character – the quintessential insensitive, hard drinking, white, privileged, asshole frat boy – rather than to step back and be unbiased in their questioning.

Cherry picking facts in order to crucify someone’s character is a propagandist’s approach; creative, bright people can do this to great effect. Though I’m no attorney, I have learned from attorneys that this is one reason evidence is often ruled irrelevant to be presented to a jury when someone is on trial. In the U.S., prosecutors  are not supposed to attempt to gain a conviction by character assassination – but based on evidence. Information about the character of the accused is only relevant as it relates directly to the criminal accusation (s) – not admissible if it is deemed irrelevant to the charges.

Witness the Amanda Knox case, in which an American student was railroaded by an Italian court system that relied heavily on character assassination – cherry picking facts from the far distant past, including the young woman’s teenage years, about her alleged sexual promiscuity, childhood nicknames like “foxy,” to create a caricature of her as evil and unsympathetic to the jury. (Ms. Knox was ultimately exonerated after spending many years in an Italian prison).

Though I realize this is a confirmation hearing, not a trial, I still believe basic standards of evidence and proof – not heated emotion – should apply when someone is being accused of a crime. The climate around issues of sexual assault at this historical moment is emotionally heated to the point that having a calm, fact-finding discussion is almost impossible. But a climate of extreme emotion is not necessarily conducive to uncovering truth.

My heart goes out to Dr. Ford, and also to Brett Kavanaugh, who said today: “I ask you to judge me by the same standards you would want applied to your father, your husband, your brother, your son.”

Dr. Ford comes across as sympathetic and sincere. But there is simply no evidence, that I’m aware of, other than Dr. Ford’s word, that Brett Kavanaugh tried to rape her. For that matter, there is no evidence that Kavanaugh even knows Dr. Ford.

I think it’s important to take a step back from the raw, group energy of the #MeToo movement and consider that if Kavanaugh’s nomination, and his life’s work, is jettisoned entirely on the basis of an emotional story about an incident alleged to have occurred 35 years ago, with no evidence, and no corroborating witnesses, it will be a triumph of emotion over reason, and as such, a hollow “victory” for women.