activists ignore inconsistencies and omissions in the tale told by Brett Kavanaugh's accuser. Do they care about the truth?
I want to believe — need to believe — that people are not as simple-minded and generalizing as the news media have portrayed. That logic and reason still matter. That it is obvious to others that the Brett Kavanaugh versus Christine Blasey Ford construct is a terrible study for real issues with sexual violence in this country.
If this is the debate, then understand that Ford is a terrible poster child for the cause. Does the cause exist? Of course. Do terrible things happen to innocent people every day? Of course. Does engaging in a critical analysis of a claim of sexual assault mean you are an anti-woman, pro-rapist nut case? Based on today's narrative, this answer isn’t so clear.
I am perplexed. But as an American, an attorney and a woman, I am also disappointed. I have continuously heard the argument that if we don’t “believe” Ford, we somehow don’t “believe” that women are sexually assaulted or that women don't matter.
Is this seriously the argument being perpetrated in the name of women’s rights? It’s ridiculous, illogical and dismissive. And — most significant — does nothing to advance a real discussion of sexual assault. The time I have spent with victims on both sides of this issue, be it those who were sexually assaulted or falsely accused (Yes, that’s a real thing with real research supporting it!), are the times that have shaped me as a lawyer, and as a human.
I say this not as a former special victims’ prosecutor or victims’ rights attorney or even as a criminal defense attorney. I say this as a matter of common sense and logic. I understand that my perspective is different than most after a decade of analyzing sexual assault claims to determine prosecutorial merit or avenues to acquittal. But our job as attorneys isn’t really any different from what all Americans are engaged in (or should be) with Kavanaugh: an objective analysis of the facts to determine their merit and draw a reasoned conclusion.
It’s the same thing that many of those who called for an FBI investigation are hoping for. Though, as then-Sen. Joe Biden aptly pointed out in 1991, the FBI is not a magical agency that can determine the truth of decades-old allegations by collecting witness statements.
In the world of sexual assault claims, Ford's is pretty flimsy. What day, month or even year did it happen? Where? How did she get there and back? She admittedly didn’t walk several miles home, so who was driving? Did she call her parents? Speaking of her parents, why are they notably absent from any involvement in this? Do they think she’s lying? Did they abuse her themselves? Why do the witnesses Ford named claim no memory of this gathering?
I could go on, but I won’t. Is there a response to each of these items? Sure. Is it compelling? Not particularly in a legal sense. Does it mean Ford is lying? No, but does it mean that Kavanaugh is guilty? I would think not.
Sadly, though, no matter how logical or legitimate these questions are, many people will disregard them because they can’t fathom how a person would lie about sexual assault if it weren't true. As if it were that simple. As if the answers to these questions don’t matter for Ford, for Kavanaugh, for the sake of determining the truth.
Simply because someone says something happened — even if they are “100 percent" certain — it does not mean that it actually did.
In fact, research confirms that one’s confidence in one's memory is actually a poor indicator of the reliability of memory. That’s to say nothing of those who deliberately lie, exaggerate or conflate experiences for any known or unknown reason, political or personal, conscious or otherwise. Is Ford afflicted by any of these phenomena? Who’s to say? Another aspect of this case to look into.
Time presents a problem to the credibility of any delayed report. Merely delaying reporting the alleged assault does not mean it is untrue, but it certainly makes it more difficult to find corroborating evidence. But time doesn’t kill all cases. Sometimes, there are prior consistent statements from the accuser, or the accuser has a better memory. In other cases, the perpetrator might confess.
It is not offensive to discuss possibilities that exist in a case, and debate whether evidence supports the assertions under any standard of proof. We should talk about how mental health and past sexual conduct are totally excluded from this discussion, but are often factors that play into the question of an accuser’s credibility.
Do any of us know the first thing about Ford’s mental health or sexual history? Of course not, but it doesn't seem to matter for those forging ahead with her as their champion.
Extremism is the opposite of intellectual discourse. I can’t respect the absolutes that have been established in this debate: If you don't believe Ford, you don't believe victims; if you testify with apparent vulnerability, you speak only truth; if you believe in false allegations, you’re a misogynist.
It is a display of hysteria to rally around Ford — ignoring the inconsistencies and omissions in her tale — as the poster child of women’s rights.
I am disappointed in the rush to judgment. I am disappointed in the partisan nature of the debate, in the complete abandonment of civil rights when it comes to a so-called privileged, white male. It does not matter who his parents are, where he went to school, what his successes have been, how much money he has, or the office for which he has been nominated. It’s despite these things that he is entitled to the same amount of due process and respect as anyone else.
While our Constitution presumes him innocent, our nation does not.
~ Catherine Cherkasky is a veteran, former JAG/special victims prosecutor, and a criminal defense attorney who specializes in military sexual assault defense. Cherkasky is the co-owner of BestMilitaryDefense.com and founder of SueTheMilitary.com.
on September 6, 2019, 11:25 am