This post has been updated.
In her must-read recap of how alleged sexual assaults are prosecuted, The Washington Post’s Deanna Paul quotes a former district attorney saying she doesn’t like calling these cases “he said, she saids."
"I stand to believe there’s no such thing as a ‘he-said-she-said’ case,” Linda Fairstein said. “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.”
This is an important point — and it’s also key to our evolving understanding of Christine Blasey Ford’s accusation against Supreme Court nominee Brett M. Kavanaugh.
While critics of the accusation have dismissed it as a “he said, she said,” and argue that we have two competing accounts that simply can’t be reconciled, that’s increasingly not the case. Both Ford and Kavanaugh, in fact, have provided statements that could be seen as corroborating evidence or require corroboration, were this to be handled in a legal setting.
Republicans including President Trump have cast doubt upon Ford’s accusation by pointing out that it came to light mere days before Kavanaugh was set to be approved by the Senate Judiciary Committee — and after his confirmation hearings had already been concluded. This is probably the biggest argument against the legitimacy of the accusation.
But Ford has also documented a session in which she told her therapist about the alleged episode six years ago, and she reached out to The Washington Post before Kavanaugh was Trump’s nominee (but while he was on Trump’s shortlist).
Critics allege these amount to little to substantiate her claims, but legally speaking, they’re substantial. As Georgetown University law professor David Super notes, federal law explicitly says these previous statements are not regarded as hearsay, or unreliable, when they are used “to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.”
That’s exactly what Republicans are implying — often gently and without expressly calling Ford a liar.
“Calling it ‘he said, she said’ implies that both accounts are uncorroborated,” Super said. “But these prior consistent statements are corroboration. And with so many complaining about the lateness of the charges, they are at least implying recent fabrication. That makes her prior consistent statements not hearsay. Even a court would consider them.”
Ford’s prior statements, though, go only so far in bolstering her claim. The therapist’s notes describe four boys being in the room in which the episode happened, rather than the two she now says were there. Ford blames the therapist for not accurately recording what she said. But just as the previous statements could be used to bolster her claim, this could be used to argue that she changed her story.
Also pushing this into the realm of actual evidence is Kavanaugh’s latest apparent defense: That he wasn’t even at such a party. Sen. Orrin G. Hatch (R-Utah) said Monday that Kavanaugh told him he wasn’t.
Hatch clarified that Kavanaugh said “he was not at a party like the one [Ford] describes" and that Ford "may be mistaking [Kavanaugh] for someone else.”
That means we have another claim that could be corroborated or disproved. Other people at the party could testify about whether the party was similar to how Ford described it and whether Kavanaugh was there. There could be evidence introduced to support or dispute Kavanaugh’s denial, and his credibility could be adjusted accordingly — just as Ford’s old actions could be used as corroborating evidence to bolster her claims. (For what it’s worth, nobody else at the party is currently slated to testify publicly.)
None of this makes the case clear-cut, and we may never get definitive answers as to whether Kavanaugh was at the party or whether Ford’s allegation is true. What’s more, Ford’s past statements about the alleged episode aren’t proof of wrongdoing.
But to dismiss this all as a “he said, she said,” also misses the point. There are key questions that have answers here; we’ll see if the hearing Monday provides any.