Kavanaugh's hearing: The most momentous 'he said, she said' showdown of our time

Thursday's scheduled hearing on Christine Blasey Ford's allegation of sexual assault against Brett Kavanaugh...

Posted: Sep 27, 2018 2:03 AM
Updated: Sep 27, 2018 2:03 AM

Thursday's scheduled hearing on Christine Blasey Ford's allegation of sexual assault against Brett Kavanaugh promises to be the most momentous "he said, she said" contest of our time. Her word will be pitted against his, forcing senators — and a nation judging from the sidelines — to decide whom to believe.

Kavanaugh's past statements make him vulnerable to what would, in criminal court, constitute a devastating cross-examination. But it remains to be seen whether Rachel Mitchell, the sex crimes prosecutor hired by the Republicans to act as their surrogate, will pursue obvious lines of inquiry, or whether she will instead leave this work entirely to the Democrats. Regardless, many onlookers will bemoan the difficulty of resolving the dispute, which will be made to seem like an intractable feature of sexual assault accusations.

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In fact, the opposite is true. Quite often, sexual violence need not culminate in a word-on-word duel. The notion that "he said, she said" is the hallmark of these cases is a myth, and a dangerous one at that. We see this most clearly if we look, not at the political calculations involved on both sides, or even at the FBI investigation of Anita Hill's allegations against Clarence Thomas decades ago. Notwithstanding the extraordinarily high stakes of this particular allegation, the reaction to it closely resembles law enforcement's response to everyday sexual violence.

As I have detailed in a recent paper, we see a recurring pattern in the police response to sexual assault allegations. Investigations that could be supported by additional evidence are prematurely cut short. As a routine matter, police officers promptly disregard women's reports of sexual violence — a phenomenon I call "credibility discounting" — leading investigators to overlook the potential availability of corroborative evidence.

When an accusation is fresh, corroborative evidence can include electronic evidence like texts, voice mails, photographs or social media posts, forensic reports, witnesses to the lead-up or aftermath, and, on rare occasion, eyewitnesses to the charged incident. Older allegations like the one that bears on Kavanaugh's nomination are of course far more difficult to corroborate. Even so, many of the same investigative techniques could still be brought to bear on the task of gathering relevant evidence.

In Kavanaugh's case, the decision by Senate Republicans to curtail an investigation before all avenues have been exhausted is a familiar one. This is a commonplace law enforcement maneuver. And it usually means the case goes nowhere. The vast majority of sexual assault allegations reported to police never result in an arrest, much less a prosecution or conviction. Across the country, in departments big and small, police officers are reflexively truncating investigations into allegations of sexual violence.

This has an enormous impact on survivors' willingness to come forward. According to recent Justice Department estimates, the population most vulnerable to sexual assault, females ages 18-24, reported incidents of rape or sexual assault to police at rates of only 20% among college students and 32% among non-college students. Women of color, both on and off campus, may be even less likely to report sexual assault than their white counterparts. Survivors of sexual assault rightly perceive the pervasiveness of credibility discounting and, in many more cases than not, opt to keep their credibility from ever being judged.

To be sure, despite the best efforts of investigators, some cases require a fact finder to decide, without any corroborative evidence, which among two competing accounts to believe. To choose between the conflicting narratives, the fact finder might look at each party's motivations to lie or be truthful, the internal consistency or inconsistency of each story, each person's ability to perceive and recall, and each person's record of past truthfulness or untruthfulness. Fact finders also evaluate credibility by applying their understanding of the ways the world operates, which is a problem when that understanding is inaccurate.

Unfortunately, Thursday's hearing will lack the added corroboration that can make it easier to weigh credibility. In an effort to prevent this very scenario, Ford — not Kavanaugh — asked for a neutral FBI investigation. Ford — not Kavanaugh — asked that Mark Judge, Kavanaugh's high school friend, be subpoenaed to testify. So it is especially galling that Ford — not Kavanaugh — will probably be penalized for a perceived shortage of evidence.

Accusers do not tend to fare well in word-on-word clashes. As I have described, skepticism of sexual violence complaints has shape-shifted over time. Yet it remains firmly lodged. The staying power of credibility discounting is a notable feature — perhaps even the dominant feature — of our response to rape.

This may be changing. The #MeToo movement is challenging a societal default to doubt, and the past year has brought undeniable progress. Yet even as sexual misconduct complaints are met with newfound receptivity, it is worth noting that lone accusers continue to bear a special burden. (It seems unlikely that Senate Republicans will ask the FBI to investigate two other accusers' reports against Kavanaugh, or even that they will be asked to testify before the Judiciary Committee.)

Many survivors of sexual violence are deterred by the likelihood of a swearing contest. But Ford — in the face of death threats — has agreed to appear before the committee. She walks into a "he said, she said" showdown that could well have been avoided, one in which the deck has already been stacked against her.

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