What exactly is Jeff Flake looking for?

I have defended people charged in serious sexual assault cases for more than 20 years. Such cases can be cha...

Posted: Oct 4, 2018 11:54 AM
Updated: Oct 4, 2018 11:54 AM

I have defended people charged in serious sexual assault cases for more than 20 years. Such cases can be challenging to prosecute and difficult to defend. It is common, and somewhat frustrating to me as a defense lawyer, that many are based entirely on the testimony of the alleged victim.

I understand why people may be surprised to learn that a person can be charged with a sex crime when there is no evidence other than the allegation of the person claiming to be the victim. But that's the way the law works in many states, including Maryland, where Christine Blasey Ford said she was assaulted by Supreme Court nominee Brett Kavanaugh when they were teenagers. In a sex crime case, "he said, she said" may be enough to send someone to prison for a long time.

Brett Kavanaugh

Christine Blasey Ford

Crime, law enforcement and corrections

Crimes against persons

Criminal investigations

Criminal law

Criminal offenses

Federal Bureau of Investigation

Government and public administration

Government bodies and offices

Government organizations - US

Investigations

Jeff Flake

Law and legal system

Misc people

Political Figures - US

Politics

Sex crimes

Sexual assault

Sexual misconduct

Society

US Congress

US Department of Justice

US federal departments and agencies

US federal government

US Senate

Agree with them or not, these laws make sense. Corroborating evidence is often nonexistent in sex crime cases. There is rarely an eyewitness to the assault because most of these crimes are committed when no one else is around. Physical evidence, while certainly present in some cases, is often elusive when the allegation relates to an incident that occurred many days or years before the report is made.

That's why there should not be any expectation that the FBI, which is conducting a supplemental background investigation into Judge Brett Kavanaugh, will be able to corroborate Christine Blasey Ford's allegation.

And although Ford has identified Mark Judge as an eyewitness to the alleged assault, he may have been too drunk to remember the incident at all. And it should not be surprising if the other people who may have been present that day over 36 years ago simply have no memory of the gathering now. It makes perfect sense that they would not remember it as clearly as Ford. It was an extremely significant day for her, not so much for them.

Of course, there would also not be any physical evidence available to corroborate this allegation. It was not reported at the time. And, because it was allegedly an attempted rape, there may not have been any physical evidence even if it was investigated by law enforcement the very next day.

And while the FBI may now be slightly expanding what was initially a very restricted investigation, the effort remains focused on gathering interview notes, not investigating a crime.

Consider how significant the difference is. In addition to tight time constraints that are usually not present in criminal investigations, the FBI is also expected to follow traditional protocols for conducting a background investigation. This will likely mean the investigation will be extremely limited. I do not expect the FBI will try to turn over every rock, follow every lead, or even re-interview critical witnesses if new evidence is uncovered during the investigation.

While I initially thought Rachel Mitchell, the Arizona prosecutor brought in by Sen. Chuck Grassley to question Ford before the Senate Judiciary Committee, believed Ford's allegations, I must have been wrong. Mitchell has since written a five-page memo criticizing various aspects of Ford's testimony and, unnecessarily in my opinion, explaining why Kavanaugh shouldn't be criminally charged based solely on Ford's statements.

Although I agree with that conclusion based on the very limited information presented at the committee hearing (a deficiency Mitchell seems to acknowledge), a robust criminal investigation could very well change that calculation and uncover sufficient evidence to charge Kavanaugh with a crime. But, despite at least one request, it doesn't appear that will ever happen unless Ford personally initiates it, something she has so far chosen not to do.

The problem is that at least one senator critical to Kavanaugh's nomination wants more than just the word of Ford. In requesting this FBI supplemental investigation, Sen. Jeff Flake expressed what appears to be a common thought: Ford's testimony was "compelling" and "credible" but we need more evidence because Kavanaugh is entitled to a "presumption of innocence to the accused, absent corroborating evidence."

But what sort of corroborating evidence is Flake looking for. Would it be sufficient if the FBI could simply corroborate that there was a party in the summer of 1982 that both Ford and Kavanaugh attended? Would it be enough if the FBI could prove that Kavanaugh, despite his claims to the contrary, has been so intoxicated on one or more occasions that he blacked out? Or is Flake going to require independent evidence that the sexual assault actually occurred?

Of course, this is a judicial confirmation and not a criminal trial. Awarding Kavanaugh a presumption of innocence after Ford's allegation is neither necessary nor appropriate under the law. The Senate's constitutional obligation in this process is to provide the President with its "advice and consent" with respect to judicial nominees. In fulfilling that responsibility, the Senate looks to a wide variety of factors, none of which are exclusively determinative. There is no such thing as a "presumption of confirmation."

West Lafayette
Cloudy
54° wxIcon
Hi: 60° Lo: 54°
Feels Like: 54°
Kokomo
Cloudy
54° wxIcon
Hi: 62° Lo: 53°
Feels Like: 54°
Rensselaer
Cloudy
54° wxIcon
Hi: 55° Lo: 51°
Feels Like: 54°
Fowler
Cloudy
54° wxIcon
Hi: 55° Lo: 51°
Feels Like: 54°
Williamsport
Cloudy
54° wxIcon
Hi: 58° Lo: 53°
Feels Like: 54°
Crawfordsville
Cloudy
54° wxIcon
Hi: 61° Lo: 53°
Feels Like: 54°
Frankfort
Cloudy
54° wxIcon
Hi: 62° Lo: 53°
Feels Like: 54°
Delphi
Cloudy
52° wxIcon
Hi: 62° Lo: 54°
Feels Like: 52°
Monticello
Cloudy
52° wxIcon
Hi: 63° Lo: 54°
Feels Like: 52°
Logansport
Cloudy
52° wxIcon
Hi: 62° Lo: 52°
Feels Like: 52°
Cooler, gray weather with spits of rain...
WLFI Temps
WLFI Planner

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 1003647

Reported Deaths: 16423
CountyCasesDeaths
Marion1351072116
Lake661851159
Allen57674800
Hamilton46217464
St. Joseph44210611
Elkhart35807508
Vanderburgh32162480
Tippecanoe27859258
Johnson25007444
Hendricks23795357
Porter22856365
Madison18694408
Clark18505252
Vigo17393303
Monroe15218199
LaPorte15101250
Delaware15024261
Howard14681289
Kosciusko12260147
Hancock11682175
Bartholomew11548180
Warrick11270189
Floyd11059214
Wayne10946253
Grant10019219
Morgan9438176
Boone8891116
Dubois8249131
Dearborn819893
Henry8174152
Noble8003106
Marshall7891135
Cass7519121
Lawrence7433171
Shelby7171119
Jackson695889
Gibson6567115
Harrison646691
Huntington636899
Knox6360106
DeKalb628699
Montgomery6229109
Miami591498
Putnam577678
Clinton572171
Whitley563455
Steuben558976
Wabash5309103
Jasper527879
Jefferson509297
Ripley498686
Adams479775
Daviess4653114
Scott438473
Greene423596
Wells422588
Clay421360
White417364
Decatur4152102
Fayette405787
Jennings385961
Posey375844
Washington356150
LaGrange356078
Randolph343499
Spencer338743
Fountain333860
Sullivan327852
Starke315570
Owen313970
Fulton309167
Orange292663
Jay283445
Franklin265143
Perry264852
Rush260832
Carroll260633
Vermillion257254
Parke230426
Pike228443
Tipton227259
Blackford191841
Pulaski183157
Crawford159023
Newton156848
Benton150217
Brown145747
Martin138019
Switzerland134811
Warren120816
Union107016
Ohio84213
Unassigned0540

COVID-19 Important links and resources

As the spread of COVID-19, or as it's more commonly known as the coronavirus continues, this page will serve as your one-stop for the resources you need to stay informed and to keep you and your family safe. CLICK HERE

Closings related to the prevention of the COVID-19 can be found on our Closings page.

Community Events