One of the hardest things a prosecutor has to do is to tell an assault victim who has come forward that there is not enough evidence to support proceeding to trial. It is not unusual for victims to come forward years, even decades, after an assault — and it takes real courage. But evidence can be hard to find.
The most basic thing that a victim is owed is a thorough effort to investigate the recollections and seek evidence. Knowing that we gave it a sincere effort may be the victim's only consolation. This is where the Senate has failed.
The Senate is not conducting a trial. But we are obliged to be fair and respectful to a victim. Unfortunately, anyone paying attention to the ugly Brett Kavanaugh confirmation saga sees that there has been no real investigation into credible allegations of sexual assault brought by Dr. Christine Blasey Ford.
When considering a victim’s credibility, prosecutors will look for specificity and detail in her recollections, prior consistent statements and consistency with facts that are known. These all exist for Ford. She has also evidently taken a lie detector test.
Before Anita Hill testified at the Senate in 1991, the Judiciary Committee called for an FBI investigation into her allegations against Clarence Thomas. At the time Sen. Orrin Hatch called the investigation “the very right thing to do.” This is a routine step when new relevant information about a nominee comes to light — the basics of a legitimate background investigation.
It is also a matter of courtesy and respect for women who come forward at considerable personal sacrifice. (Ford has received death threats and been forced to relocate her family after her allegations about Kavanaugh were made public).
Refusing to honor Ford’s request that the FBI reopen Kavanaugh’s background investigation, the committee’s GOP majority instead issued a “take it or leave it” ultimatum to testify without the benefit of a single outside witness or any sincere effort to obtain corroborating evidence. Ford is correct that the committee’s plan “to move forward with only two witnesses is not a fair or good faith investigation.”
Any prosecutor who has handled cases involving sexual assault knows the importance of understanding sexual violence and trauma. Yet the majority refuses to call such expert witnesses to testify.
They also refused to call the other witnesses allegedly in the house when the assault took place. And refused to subpoena Mark Judge, Kavanaugh’s friend and alleged accomplice, whom Ford places in the room during the assault.
Judge has indicated that he will not testify voluntarily. It is not hard to see why. He wrote a memoir called “Wasted: Tales of a Gen X Drunk,” chronicling his time as a teenage alcoholic, and the wild partying scene in which he and Kavanaugh participated. The book refers to a “Bart O’Kavanaugh.”
Kavanaugh and Judge’s high school yearbook pages reinforce this portrait of heavy drinking and other misbehavior. So does Judge’s disturbing quote: “Certain women should be struck regularly, like gongs.”
Since Ford went public, at least two more women have come forward corroborating Kavanaugh’s hard-partying habits, both in high school and college, and alleging further sexual misconduct. Kavanaugh told us repeatedly during his first hearing that “process protects us.” Witness testimony is at the core of any legitimate process.
Kavanaugh is the one who should be calling for an FBI investigation, and for the alleged witness in the room to testify. Instead, he has been complicit in avoiding a full and fair investigation.