I have been representing victims of sexual abuse for the past 25 years. I also believe in due process, and both Supreme Court nominee Brett Kavanaugh and his accuser, Christine Blasey Ford, deserve to be heard in a fair proceeding at the Senate Judiciary Committee.
Notwithstanding the new allegations from Deborah Ramirez, it seems likely that Republicans will not agree to postpone the hearing further and that it will be only Ford’s allegations that the committee confronts.
It is important to distinguish this hearing from a criminal trial, where a person’s liberty is at stake. There is no constitutionally protected right to confront witnesses or a requirement that there be proof beyond a reasonable doubt. It would be tragic if the proceeding was a repeat of the horrific Clarence Thomas hearings, where a committee of white male senators mercilessly grilled Anita Hill. That proceeding felt very much like a trial. We now live in different times. Here are my rules on how the hearing should be conducted.
Rule 1. It is likely that Ford and Kavanaugh will tell dramatically different stories. Their credibility will have to be assessed. But it would be wrong to argue that as the “accuser,” Ford bears the “burden of proof,” or that Kavanaugh is to be believed unless there is contrary proof “beyond a reasonable doubt.” Again, it’s not a trial. This is a proceeding to determine the fitness of Kavanaugh for a lifetime appointment to a position where he could change fundamental rights that we have taken for granted for decades. For understandable reasons, Ford is a reluctant witness. She has nothing to gain. So let’s dispense with standards of proof or burdens of persuasion. There are none.
Rule 2. The committee should do its very best to prevent further harm to Ford. Even some of Kavanaugh’s supporters have expressed that they do not doubt that Ford was assaulted that night; just by someone else. It is imperative that this proceeding not further traumatize her. Therefore, the committee should make her as comfortable as possible by letting one of her lawyers ask her relevant questions at the start of the hearing. That way, further questions in this inherently intimidating environment can be minimized and Ford will feel far more at ease.
Rule 3. To the extent that there is a need for what some commentators have called “cross-examination,” those questions should not be asked by members of the committee, Democrats or Republicans. Committee members should work together to come up with a seasoned attorney or clinician who has experience in interviewing victims of trauma and who can ask relevant follow-up questions — not hostile or demeaning ones. The idea of octogenarian senators (three of whom, Chuck Grassley, Patrick Leahy, and Orrin Hatch, are veterans of the disgraceful Anita Hill hearing) interrogating Ford is frightening. A good candidate to ask such questions would be former Massachusetts attorney general Martha Coakley.
Rule 4. In assessing credibility, the committee should dispense with layperson notions of how victims of traumatic sexual events should behave or respond. The president has already chimed in to suggest that the allegations are untrue because Ford did not go directly to the police or her parents as a 15-year-old. Such an opinion is ignorant, but may well be shared by others. The sad truth is that very few victims go to law enforcement or report anything after they are sexually abused. They feel shame or guilt, or are sometimes too fearful for their safety to do anything. Stereotypical notions of how victims “ought to behave” have no place in a case involving a victim of sexual abuse.
Rule 5. Nor should the committee place any emphasis on the fact that other victims of Kavanaugh had yet to emerge before a Sunday story in The New Yorker, or the fact that there are no third-party witnesses other than the mercurial Mark Judge. Given what has happened to Ford, why would another person come forward? In addition, there are rarely witnesses when children are sexually assaulted. What the committee should consider, however, is the fact that Ford spoke to her therapist, apparently about this incident, in 2012. If true, that evidence would be powerful and dispense with any contention that Ford’s purported politics have played a role in her allegations.
Rule 6. Finally, the committee should recognize what it does not know in this area, because understanding sexual assault is so specialized and involves complex human behavior. In a bipartisan way, the committee should hire experts who can help guide its deliberations and the criteria used to assess credibility. For example, it is legitimate to at least consider how Ford could accurately remember a traumatic event from 35 years ago, when she cannot remember the house where it occurred or the date when it happened. Experts on traumatic memory could assist the committee and explain the science which supports the accuracy of such memories or why a victim might remember the assault but not other details.
In short, there are sensible ways that this hearing could be conducted which would be fair to both Ford and Kavanaugh. This week will be the first time where a congressional committee will have the opportunity to show, in the #MeToo era, that it has been paying attention to the events of the past year and a half. The whole world will be watching. The future of the Supreme Court will be one issue, but the hearing will also be a test of whether our political leaders have really learned how to treat and assess victims of sexual abuse and harassment when they come forward.
Eric MacLeish is an attorney at Clark Hunt Ahern and Embry who has been representing victims of sexual abuse for 25 years.