Tuesday, September 18, 2018

How I Think About Christine Blasey Ford's Accusation Against Brett Kavanaugh

I have witnessed a lot of men (and curiously enough, no women) in my social circles, including a number of good friends, saying that the Senate should not consider Christine Blasey Ford's accusation that Supreme Court nominee Brett Kavanaugh held her down, groped her, and tried to take her clothes off in 1982, when she was 15 and he was 17.  To save some time, I'm going to lay out what I think here in what I hope is a balanced and open-minded manner.  Of course, this being social media, I suspect things will go off the rails, but I feel an obligation to try:

1. The core issue here is the question of whether or not to believe a claim of attempted sexual assault. (Note that the accepted legal definition of sexual assault includes groping, even through clothing; penetration is not required for sexual assault to occur.)

2. Research indicates that the rate of false accusations of sexual assault are between 2-6%, roughly in line with all other crimes.  (Source: https://www.independent.co.uk/voices/false-sexual-violence-assault-rape-allegations-truth-rare-international-day-for-the-elimination-of-a8077876.html)  So the baseline is that allegations of sexual assault should generally be considered credible.  This is not a presumption of guilt; clearly, crimes should be tried in a court of law.

3. I have had at least one friend who was false charged with sexual harassment; fortunately, he was able to prove that the allegations were false, concocted by a male professional rival who wanted to harm his career.  I have had a number of other friends who were charged and admitted to their behavior.  I feel badly for them and their families, because these admissions severely impacted their finances and careers, but the charges were true.  One friend is currently accused I think the acccusations are exaggerated and likely false, but he did employ others who may have acted in ways that were borderline at best.  My personal experience is, that even in Silicon Valley, which is about as left-leaning a places as you can find, the majority powerful men who are accused of harassing behavior tend to end up confessing.

4. The circumstances of the current situation magnify the stakes.  Any woman who charged a potential Supreme Court Justice with sexual assault could expect to face a gantlet of private investigators, attacks from the press aligned with whatever part the nominee belonged to, not to mention deranged attacks and death threats on social media.  Note that this kind of partisan attack is employed by both sides; the liberal press allowed Bill Clinton to get away with sexual assault because he was on their "side."  A number of so-called feminists defended behavior on his part that they would otherwise mercilessly attack, simply because of political expediency and partisanship.  Given the high costs of making such an accusation, it doesn’t seem likely that a woman would do so lightly.

5. The fact that the accuser is an anti-Trump activist, wore a p---y hat, and marched against Trump, simply puts her in the majority of educated women in the Bay Area.  I doubt that many of those women would be willing to lodge a false accusation simply for political reasons.  Conversely, if those characteristics would lead a woman to lodge a false accusation, why is there only one accuser?

6. The fact that there were two boys in the room and both denied the incident doesn't mean that it didn't happen.  It doesn’t seem likely that the alleged criminals would be eager to confess.  This logic would seem to imply that if a woman is alone with more than one man, and she accuses them of assault, and none of the men confess, that the world should consider her testimony false simply because 2+ > 1. I don’t think that is a logical or persuasive argument, and it is also the plot of the movie “The Accused”.

7. It’s also important to note that the other man alleged to be in the room, Mark Judge, is a conservative writer whose work has appeared in The Daily Caller and The American Spectator, and who wrote a book, “Wasted” about his life as a teenage alcoholic.  From a political perspective, this means he would tend to support conservative causes, and that as an alcoholic, his memories of those times could be considered suspect.

8. Christine Blasey Ford described the sexual assault during a session with her therapist in 2012.  Those notes record that Blasey Ford described being attacked by students from “an elitist boy’s school” who later became "highly respected and high-ranking members of society in Washington."  Her therapist’s notes from 2013 indicate that Blasey Ford felt she was still dealing with a “rape attempt” from her teenaged years.  Blasey Ford’s husband Russell Ford has said that in 2017, she named Kavanaugh as the main perpetrator, and expressed concern that he might someday be nominated to the Supreme Court.  In other words, there is written evidence and corroborating testimony that Blasey Ford had been talking with others about the incident long before the nomination process.

9. Some people criticizing Blasey Ford for not reporting the incident to her parents at the time.  That strikes me as the logical action for a gilr to take in 1982.  She managed to escape, and she had little to gain by admitting to her parents that she had been at a party with older boys who had been drinking.  In 1982, reporting that a drunken boy held you down, groped you, and might have eventually raped you had you not managed to escape, would be unlikely to prompt any action by law enforcement.  Today, things are different, and I think that is a good thing.

10. Some people are arguing that the statue of limitation on sexual assault has expired in this case.  They are correct.  The statutes of limitations for sexual assault in the state of Maryland are as follows: before an underaged victim turns 25 for civil actions, 1 year for misdemeanor sexual assault, no limit for felony sexual assault.  Unless this was considered felony assault (which it doesn’t seem to be under Maryland guidelines) there is no basis for criminal action.  However, Brett Kavanaugh is not being tried in a criminal court, and is not facing punishment or jail time.  The question, rather, is whether he should be confirmed to a lifetime appointment as a Supreme Court Justice.  Statutes of limitation do not apply.

11. Blasey Ford contacted the Washington Post, Congresswoman Anna Eshoo, and Senator Dianne Feinstein in July.  She had already decided not to come forward for many of the reasons I described above when the story leaked that Feinstein had a letter which she was not sharing with her fellow Democrats.  After her accusations became public, she decided she had nothing to lose from coming forward.  Her actions are not "last minute."

12. It is possible that Feinstein held on to this letter to unveil it as a “September Surprise” to derail the nomination.  That is uncivil, but not illegal, and does not have any bearing on the validity of the accusations.  It’s a cynical but savvy political power play, much like the nuclear option (first invoked by Democrats during the Obama Administration), or refusing to hold confirmation hearings for Merrick Garland (Mitch McConnell's action, which allowed the appointment of Neil Gorsuch).

13. Kavanaugh had 60 people write in support of his character.  The alumnae of Blasey Ford’s school are producing a letter in her support with even more signatories.  Neither is dispositive; they are simply PR moves.

To summarize:
• Yes, Democrats are playing politics.
• However, the base rate on sexual assault accusations, and the circumstances involved, lead me to conclude that the accusation is credible
• The Senate should hold hearings on this topic.  If the administration doesn’t think it can get Kavanaugh confirmed, it should pick a different nominee (probably a woman).  This accusation is about Kavanaugh; the administration has the ability to nominate other candidates and get a different Federalist Society-approved justice confirmed.

The core questions I’d ask those who want to ignore the Blasey Ford accusation are the following:
• If the accusation was true, would you vote to confirm?  If so, say so publicly and explain your position.
• Do you believe, beyond a reasonable doubt, that Blasey Ford is lying, especially given the prior written notes?
• Do you believe that, in general, sexual assault accusations against men in America are generally truthful?
• If your daughter was 15, would you leave her alone at a party with an intoxicated 17-year-old Brett Kavanaugh?

I think there’s enough doubt here that either the Senate should hold hearings about the Blasey Ford accusation, or the Trump administration should pick another nominee.