The Senate Judiciary Committee is scheduled to vote on Judge Brett M. Kavanaugh’s nomination to the Supreme Court on Thursday. But as former prosecutors and a defense lawyer who collectively have decades of experience working on cases involving allegations of sexual assault, we believe the committee must review — with witnesses testifying under oath — the allegations that Kavanaugh assaulted a woman when they were in high school. Christine Blasey Ford’s specific, credible account more than meets the threshold under the Judiciary Committee’s rules for such a review. And in our experience, Ford’s delay in coming forward publicly with her allegations is consistent with a common pattern of survivors of sexual assault.
Ford told The Washington Post in a story published Sunday that Kavanaugh and a friend of his, both “stumbling drunk,” cornered her in a bedroom during a gathering when all of them were teenagers in Montgomery County, Md., and that Kavanaugh pinned her to a bed and tried to pull her bathing suit off. She escaped the room and fled the house, she said. Kavanaugh, in a statement issued last week, “categorically and unequivocally” denied the allegations.
The incident allegedly happened in the early 1980s. But trauma often causes delayed reporting of sexual assaults, which is well recognized now. Moreover, this is not a “new,” allegation, one made for the first time on the eve of Kavanaugh’s confirmation. Rather, The Post reported that Ford made previous disclosures to her husband and to a therapist years ago. Those disclosures also took place long after the alleged assault, but they were made at a time when Ford would have had no reason to fabricate the details.
Those prior disclosures also follow a common pattern with survivors in the gradual revelation of specificity and detail. Ford reportedly first told her husband that she had been the victim of a physical assault. Later, in therapy, she disclosed the sexual nature of the events. This step-by-step disclosure is common with survivors of sexual abuse, especially when the abuse occurred when the survivor was relatively young. Ford was 15 at the time of the alleged assault.
Those examining Ford’s account focused Sunday on possible gaps in her recollection. It is true that, for example, she recalls some specific details of the alleged assault itself — Kavanaugh’s hand allegedly covering her mouth, the other boy in the room laughing — more clearly than she did other details, such as the address of the party and time and date. But assault survivors often focus on very particular details of what happened to them rather than facts such as location and time. For example, in a landmark rape case two of us prosecuted, the survivor gave compelling testimony about how she remembered the smell of the defendant but was not clear on the exact time of day the attack occurred. (Her attacker pleaded guilty after hearing the testimony of the survivor.)
To the extent there are discrepancies in the record, they appear to be minor and not uncommon. Ford's therapist’s notes state that there were four boys “involved” rather than the two that Ford told her husband about. Ford now says that was an error on her therapist’s part while taking the notes, but either way, it’s reconcilable with Ford’s recollection that two boys — Kavanaugh and his friend Mark Judge — were in the room but a total of four boys were at the party. We often found that such minor errors were common even in the note-taking of trained law enforcement agents who know their work may be subject to review and cross-examination in criminal prosecutions. Indeed, in our collective experience, it is unusual for notes not to have such discrepancies. Particularly for a therapist — whose focus is on healing trauma, not stenography or pursuing criminal charges — this type of error while simultaneously listening, reacting and writing would not be uncommon.
Ford also passed a lie-detector test administered earlier this summer by a former FBI polygrapher. While it is true that polygraph results are not admissible in court, investigators and attorneys consider the results relevant in evaluating a person’s credibility. So does the federal government: Regular polygraphs are used as a part of security clearance arrangements in the intelligence community. Indeed, we have found that a person’s very willingness to undergo a polygraph often helps indicate their credibility.
When allegations of sexual harassment from years before came out against Justice Clarence Thomas during his confirmation hearing in 1991, they were addressed in a way that many do not consider sufficiently serious or respectful to the victim. That process has not aged well as the understanding of these issues has increased with time. It would be best not to rush into the same mistake now, at a time when we as a society should know better.
In considering the veracity of the allegations, we must also apply some scrutiny to Kavanaugh’s denial. His credibility must be assessed in light of whether he has been candid on other issues. That record is not irrelevant to the judgment that the Senate must now make about his credibility on Ford’s allegations.
Ford initially told Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, about the allegations earlier this summer. But until recent days, Ford wasn’t willing to discuss her account more publicly. At any rate, the matter is out now, and any delay in pushing the committee to act on the allegations is overshadowed by larger considerations. Supreme Court confirmation hearings need to get done right the first time because it is the only time. No mechanisms exist for appeals or do-overs outside of the extraordinary one of impeachment — not used against a Supreme Court justice in our history in over 200 years, and only once, unsuccessfully, before that.
Against the prospect of as long as 40 or even more years on the bench for the nominee, what is a short delay to have a fair process? Under the committee’s rules, Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) has the power to convene hearings “as he may deem necessary.” Reassuring the country the allegations were taken seriously — and taking them seriously, including hearing from witnesses under oath — is necessary to maintain public confidence in the confirmation process and the person confirmed. Surely ascertaining the truth is in the interest of the Senate as well.
It is also in the interest of the victim, and that must not be ignored. Sexual assault survivors must cope with the trauma for the remainder of their lives. To all of them, to Ford in particular, and to our country, we owe a duty to take the time for full and careful investigation of these allegations before bestowing upon Kavanaugh a lifetime appointment to the highest court in the land.