Amid a spate of speculation, The Washington Post published an exclusive account of the assault on Sunday, identifying Ford. Kavanaugh issued a statement denying the accusations, but after heated pushback from politicians and the public, Kavanaugh agreed to questioning by the Senate panel Monday. A second hearing, where Kavanaugh and Ford are expected to testify publicly, is scheduled for next week. The results threaten to thwart his confirmation.
Critics of Ford have taken to calling into question whether it’s possible for a 30-year-old memory to be credible.
Sex crimes prosecutors across the country forge ahead on “he-said-she-said” cases regularly.
“I stand to believe there’s no such thing as a ‘he-said-she-said’ case,” Linda Fairstein, former chief of the Manhattan District Attorney’s Office’s Sex Crimes Bureau, told The Post. “As a prosecutor, it’s your job to break down every minute of the encounter so that details on one side pushes the facts over the edge.”
Prosecutors do that regularly, in large part by parsing what’s reasonable and what’s believable through corroboration, details that have the ring of truth and inconvenient facts that are subtle signs of credibility.
Ford’s account is credible, even though she can’t remember several details.
There’s no criminal trial, but Kavanaugh still has the presumption of innocence, said attorney Douglas Wigdor, a former prosecutor who now represents victims in sexual harassment and sexual assault cases against high-profile men.
“The reason we have statutes of limitations is because its difficult to defend yourself when someone makes an accusation against you from years ago. It’s difficult to have witnesses or forensics,” he said.
But, according to Fairstein, it was completely normal that Ford “didn’t remember” several details.
“If she testifies, I would expect her to say ‘I don’t remember’ scores of times,” Fairstein said, for two reasons: the passage of time and trauma. “She found this experience so upsetting that she felt her life was in danger. There might be 220 things she doesn’t know and then a very specific sentence about what happened that was so traumatic."
Ford has alleged that Kavanaugh pinned her down and clumsily groped her during a prep school party when Ford, 15, was a sophomore and Kavanaugh, 17, a junior. Now 51, Ford, a research psychologist, told The Post, “I thought he might inadvertently kill me.”
According to psychologist Anne Meltzer, it may be challenging to recall peripheral details of an assault years later — such as who spread word of the party, who was the designated driver — but that should not detract from a victim’s veracity “if she can clearly and consistently articulate central details of what happened, such as the who, what and where,” she told The Post.
Meltzer, who has not reviewed the details of this case, has testified as an expert witness hundreds of times in child sexual abuse cases, with victims up to 17 years old.
Are the details Ford did mention more telling?
Perhaps more striking are the details Ford did mention.
Fairstein said sexual assault rarely happens with witnesses present. Yet Ford puts two people in the room — Kavanaugh and his prep school classmate, Mark Judge, whom she called “an essential witness.”
“To me, it’s compelling that [Ford] puts someone else there, and that the person who happens to be in the room has a blackout drinking problem," said Fairstein. Judge, now a filmmaker and author, described himself similarly in his book “Wasted: Tales of a Gen-X Drunk.” “That’s sort of the intoxicated behavior she described that night,” she added.
“Ford mentioned details — like the pool party, the narrow staircase, that the house was in Montgomery County. There are enough facts for someone to remember it was their party and their house,” said Fairstein.
Wigdor echoed Fairstein, saying: “She put a third person in the room. If you were making something up, why would you do that?”
Wigdor also mentioned that Ford voluntarily took and passed a lie-detector test. “While not admissible in court, they’re used by various governmental agencies, and many people believe in their abilities,” he said.
It is not alarming that Ford waited this long to talk about the assault.
The vast majority of sexual abuse victims delay disclosing what happened.
“It’s one of the most common features of child sex abuse,” Meltzer said. Most victims of child sexual abuse fear retaliation, that they won’t be believed or that their family may be angry. There are often very intense feelings of shame, guilt and humiliation.
Statistically, teenagers are less likely than younger children to tell authorities about an assault, she said. Particularly concerned with how others view them, teenagers often feel like “damaged goods.”
“Another reason children don’t disclose is because they are sometimes threatened or pressured to keep it a secret,” said Meltzer, adding that although it may not apply to Kavanaugh and Ford, it is nonetheless a common reason.
Then why tell anyone now?
Often, Meltzer said, victims disclose abuse so that they can begin to cope with, and heal from, the trauma.
“Disclosure is a process. It’s possible that at some point a victim is unable to deal with the emotional burden of the abuse,” which frequently has long-lasting effects into adulthood.
Ford had long debated whether to come forward, feeling a civic duty to share her story, according to The Post. In the end, her cost-benefit analysis weighed against speaking on the record. Instead, she wrote a letter to Sen. Dianne Feinstein (D-Calif.), expecting it to be kept confidential.
Although Ford requested anonymity, Fairstein said that most sex abuse victims don’t want anyone to know, let alone put their private lives on display for the nation.
Instead, Fairstein was more focused on the initial disclosure, calling it a “corroborating detail.”
Ford watched the anonymous letter morph, garnering indignation from the right and serving as political fodder for the left. Then, she agreed to go public, she told The Post.
Ford disclosed the assault long before Kavanaugh was nominated to the high court by President Trump, telling her husband and marriage counselor in 2012. The therapist’s notes, which were reviewed by The Post, confirmed this.
“I think it helps [Ford] that there was an outcry to the counselor long before this nomination occurred. We always look for that to support an accusation wasn’t a newly formed complaint,” Fairstein said. Ford didn’t come forward to prosecute Kavanaugh but with a piece of information that, she believed, was relevant to his character before this became a very public issue, Fairstein said.