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Why Maryland police aren’t investigating the Kavanaugh allegations

The Montgomery County Circuit Courthouse in Rockville, Md.
The Montgomery County Circuit Courthouse in Rockville, Md. (Dan Morse/The Washington Post)

Maryland Gov. Larry Hogan (R) has called for a “full investigation” into allegations that Supreme Court nominee Brett M. Kavanaugh sexually assaulted Christine Blasey Ford 36 years ago, when both were teenagers.

But neither the Maryland State Police, which reports to Hogan, nor police in Montgomery County, the Washington suburb where the assault allegedly occurred, are likely to launch such a probe.

Here’s why:

1. Hogan’s spokeswoman said last week that the governor “has never used the state police to pursue investigations at his personal whim. That is a very dangerous and slippery slope.”

So while Democratic state lawmakers have asked Hogan to initiate an investigation within Maryland, he is not planning to do so. Instead, he is calling for an unspecified independent investigator, who would presumably report to federal officials.

Christine Blasey Ford and Supreme Court nominee Brett M. Kavanaugh testified separately before the Senate Judiciary Committee on Sept. 27. (Video: Monica Akhtar/The Washington Post, Photo: Melina Mara, Matt McClain/The Washington Post)

The Maryland State Police says its policy is to investigate allegations only when a criminal complaint has been filed; Ford has not filed a criminal complaint.

If such a complaint were filed, the state police would turn it over to Montgomery County police.

American Bar Association calls for FBI investigation in Kavanaugh case

People around the country shared how they watched Christine Blasey Ford and Supreme Court nominee Brett M. Kavanaugh testify before the Senate Judiciary Committee on Sept. 27. (Video: Drea Cornejo/The Washington Post, Photo: Amanda Aronczyk/TamaraLComeau/The Washington Post)

2. Montgomery County police, too, note that no accuser of Kavanaugh’s has come forward to request a police investigation.

The most serious allegation that authorities could pursue, given the sworn testimony provided by Ford, would be attempted rape.

There were two laws against attempted rape in Maryland in 1982 and that would be the relevant legal standard.

The charge of attempted rape was considered a misdemeanor at the time. As a misdemeanor, the offense carried a one-year statute of limitations, meaning charges would have had to be filed within a year of an incident, according to John McCarthy, Montgomery County’s longtime chief prosecutor. Lisae C. Jordan, the executive director and counsel for the Maryland Coalition Against Sexual Assault, and other longtime Maryland lawyers interviewed in recent days concurred.

The Maryland legislature changed the law in 1996, making attempted rape a felony and removing the statute of limitations, according to McCarthy and Jordan.

“But we’d have to apply the law as it existed at the time of the allegations,” McCarthy said.

A second version of the law — assault with intent to rape — was a felony in the early 1980s, with a 15-year maximum sentence. That law had no statute of limitations, and could be applied to alleged offenses from the early 1980s, according to Brian Shefferman, a longtime defense attorney and former head public defender in Montgomery County.

McCarthy declined to comment about the assault with intent to rape statute.

Other possible charges, such as second-degree assault, remain misdemeanor offenses in Maryland and subject to a one-year statute of limitations, McCarthy said.

“Based on all the allegations I’ve seen so far, there are a number of legal barriers to criminal prosecutions,” Jordan said.

Allegations and challenges

Ford has accused Kavanaugh of sexually assaulting her more than three decades ago during a summer in the early 1980s, when they were high school students in suburban Maryland. She alleges that Kavanaugh and a friend corralled her in a bedroom during a gathering of teenagers at a house in Montgomery County.

While his friend watched, Ford alleged, Kavanaugh pinned her to a bed, on her back, and groped her through her clothes, grinding his body against hers and clumsily trying to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said in Washington on Thursday, he put his hand over her mouth.

Kavanaugh has consistently and categorically denied the allegations. He and his supporters also have pointed to what amounts to legal weaknesses in Ford’s claims, including a lack of corroboration from others.

Coverage of the Ford-Kavanaugh questioning Thursday

Pursuing a criminal case in the matter would present challenges beyond the issue of whether the time frame in which to pursue a case has passed.

Among the other challenges: Kavanaugh’s age at the time. Any investigation and prosecution might have to be done under the rules of juvenile proceedings.

“This would be an extremely difficult case to put together after all this time,” said Louis M. Leibowitz, a longtime criminal defense lawyer in Montgomery County.

Before such legal questions, though, an investigation would have to be initiated.

Why police wait for victims

Police in Montgomery County conduct “victim-based” sexual assault investigations, meaning they generally do not launch an investigation until someone speaks to investigators and says he or she wants a criminal case to be opened.

Jordan said that approach is proper.

“Launching this kind of investigation without input and cooperation from victims is looking at it from the wrong direction,” she said. “You’re risking re-traumatizing them again. It would be an even worse idea in cases like this, where detectives would know they’d have very serious legal issues to overcome. What would be the benefit?”

“I don’t think it’s appropriate to conduct a criminal investigation of a reported sexual assault from 35 years ago without the survivor supporting the investigation,” she added.

“Law enforcement has learned a great deal over the years about the best practices for sexual assault investigations,” said Montgomery County Police Chief J. Thomas Manger, who also serves as president of the nationwide Major Cities Chiefs Police Association.

Approaching victims who have not stepped forward and have not indicated they want to speak with investigators can be extremely jarring to them. “You just can’t do that,” Manger said. “It’s morally wrong.”

His department has been asked repeatedly over the past week about why it has not launched an investigation. The agency earlier released a carefully worded answer, which was still in effect Thursday evening and speaks of a “victim-centered” approach:

“At this time, the Montgomery County Police Department has not received a request by any alleged victim nor a victim’s attorney to initiate a police report or a criminal investigation regarding Supreme Court nominee Brett M. Kavanaugh. The department recognizes that victims of sexual assault may not want to involve law enforcement and/or initiate a criminal investigation, and we respect that position. The department, however, stands prepared to assist anyone who reports being the victim of a sexual assault.”

Jordan said she has heard from rape victim advocates in recent days asking about a possible criminal investigation. She shared an email she had written to them, which in part discussed the legal challenges.

While attempted rape is a felony under current law, the email states, “this was not always the case. Prior to 1996, attempts were also misdemeanors and subject to a one-year statute of limitations.”

“Maryland laws on sex crimes have evolved significantly since the early 1980s,” Jordan added in an interview. “In 1982, there was little awareness of the impact of sexual violence, assaults that did not involve vaginal intercourse were not even considered sex crimes, and many viewed sexual assaults by acquaintances as inconsequential. It’s astounding that any woman ever reported rape.”

(This file has been updated to reflect an additional law covering attempted rape that was in place in the early 1980s.)

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