Three weeks ago, I posted a piece analyzing the Brett Kavanaugh Supreme Court nomination and confirmation process. This was prior to the sexual misconduct allegations against Kavanaugh becoming public. The previous piece addressed the Republicans’ brazen and inappropriate attempt to conceal 90% of Kavanaugh’s professional documentation while attempting to rush the confirmation process. It also addressed significant professional and ethics issues that in my view should result in votes against his confirmation. Clearly the recent revelations of his personal misconduct, even being 35 years old, only serve to confirm my viewpoint.
The Senate must evaluate claims of sexual assault made by three named victims and possibly more poised to come forward with similar allegations. We live in a system of law and procedure founded in due process and fairness. While allegations, no matter how serious or credible, are not proof of the actions contained therein, the reaction must be one of initial acceptance with the goal of ensuring a legitimate opportunity for the victims to be heard, Kavanaugh to respond, and the Senators to assess the information and how it impacts their critical decision on a lifetime appointment to the Supreme Court. It may be uncomfortable, but more so absolutely necessary.
It is morally and procedurally wrong for anyone, especially Senators, to immediately dismiss these claims as politically motivated lies. If they think that, refer the entire matter to the FBI for a proper investigation. These women, along with Kavanaugh, are entitled to a fair opportunity to be heard. After a bona fide review Senators may vote their conscience. This is not a criminal trial and the standard is not proof beyond a reasonable doubt. The standard is whether each Senator, following honest assessment, finds the evidence and the witnesses compelling. If they believe the allegations, they must determine whether Kavanaugh deserves a lifetime seat on the Court as a sexual predator. If they do not believe the allegations, they must still determine whether with the information they heard, along with the previous hearings, he deserves to be confirmed considering the full range of issues.
Years of working in sexual assault prevention and litigation, both on the prosecution and on the defense sides (in separate jobs), provides me the background to understand the allegations. There is no one pattern in which all victims neatly fit. Every individual reacts in their own way to various traumatic experiences and sexual assault is no different. It is simply not dispositive that these women did not file criminal complaints at the time the incidents occurred. They may have been scared or confused. They may have unfortunately thought nobody would believe them or do anything. While it is possible these women have been influenced or encouraged to come forward now, it is equally logical, and more compelling, that seeing Kavanaugh all over TV poised to become a Supreme Court Justice has inspired them to bring these important issues to light. It may have been more efficient for the Senate to address the allegations earlier, but that in no way minimizes their importance and how critical it is to resolve them prior to a confirmation vote.
At the crux of the allegations are multiple parties in high school and college involving drunkenness and sexual activity, not all of which was consensual. As alleged, Kavanaugh was at these parties, drank excessively, strongly encouraged girls to drink until intoxicated (some claim they were drugged), targeted girls, and was involved in various ways of sexually assaulting several of them. Kavanaugh was alleged to have facilitated the gang rape of intoxicated women at various parties. He was alleged to have held one woman down, groped her, and tried to remove her clothing, all without consent and with his hand over her mouth. He was alleged to have exposed himself to another woman, forcing her to look at and touch his penis. Kavanaugh himself admitted that there were parties involving excessive alcohol, including his own drinking. He denies being involved in any sexual activity. However, he included a cryptic statement in his yearbook that implies involvement in at least some of these sexual activities.
Sexual assault has a very broad, inclusive definition, not just sexual intercourse. Groping and fondling a woman against her will is sexual assault. Forcibly trying to remove her clothing is sexual assault. Forcing her to look at or touch your own genitalia is sexual assault. Engaging in sexual intercourse without consent is obviously sexual assault. An intoxicated person cannot consent, period. If you are at a party, encouraging women to drink excessively, to the point of incapacitation, do not allow others to secret them away in a room where they are likely to engage in sexual or other inappropriate activity. You would be facilitating sexual assault.
If you are with an intoxicated person, do not engage in sexual activity of any kind or you risk the moral and legal consequences of sexual assault. Some think that where both parties were drunk, it is not fair to hold the male legally responsible because they both made bad decisions under the influence. That is simply not the law. Alcohol is not a defense to sexual assault. In fact, alcohol is more often the facilitator or weapon of sexual assault. Sexual assault is not about a bad decision or bad judgment after drinking. It is about the physical, sexual abuse of another, especially someone who lacks the capacity to defend themselves, speak for themselves, or think for themselves. Sober or drunk, nobody ever has an excuse to physically abuse another person and certainly not to engage in sexual activities with an incapacitated person. Exchange numbers, get home safely, and then have a real date.
The allegations against Kavanaugh, if true, are incredibly serious and should disqualify him from being confirmed. There are some Congressional Republicans stating that these events, even if true, occurred back in high school and college and thus should not carry much weight today. Some even went so far as to say things along the lines of boys will be boys, thus minimizing the allegations. I graduated high school and college around the same time as Kavanaugh. I certainly drank with my friends, but we did not engage in any targeting, forcible drinking, or sexual assault. More importantly, we would not have allowed any such activity by or against anyone in our presence. We weren’t special, we just knew right and wrong. The extreme behavior contained in the Kavanaugh allegations is aberrant and criminal, not the foolishness of youth.
It is imperative for the Senate to conduct a proper and professional hearing to evaluate and resolve these issues. They need it to be fair to both parties, to do their duty to the American people, and to cast an informed vote. While the allegations are serious, to this point they lack some detail and specificity that would helpful in processing the information. The hearing needs to try and fill in the gaps and tell a more complete story of Brett Kavanaugh and his “relationship” with these women. Many have questioned the utility of holding a hearing considering the extreme partisanship and that most have already made up their mind. Nevertheless, there must be a bona fide hearing due to the seriousness of the issues and importance of the position. We can only hope that despite the rhetoric, Senators do the right thing in getting out the information and voting accordingly.
The Republicans on the Senate Judiciary Committee have abdicated their responsibility in this hearing. They hired a special victim prosecutor from Arizona to conduct the questioning for them. In other words, they acknowledge their own inability to act fairly and professionally, or perhaps even unwillingness, thus have a hired gun coming in to cross examine the victim(s). They will not disclose this, but it would be extremely enlightening to know exactly what guidance they have given this lawyer and what expectations they have for her to do their “dirty work” in undermining the victims and supporting Kavanaugh. This is the level of treachery we realistically have come to expect from Republican leaders in this process. Do not be fooled, this is not an effort to efficiently elicit the relevant information in an objective, impartial manner.
Currently, they are content to allow only one victim (Dr. Ford) and Judge Kavanaugh to testify. They want to wrap it up in one day and move on to vote mere hours later. No time to process, evaluate, follow-up, or discuss. What about the other victims who have come forward? What about the witnesses who can corroborate the allegations? What about witnesses who could support Kavanaugh’s denial? This is all extremely relevant and important, yet as of now they are prepared to go without it. Their goal is to conceal as much information as possible. There is the over 90% of Kavanaugh’s work being withheld from the Committee (see previous piece) and there is evidence that at least some Republican leaders knew there were issues of this nature out there that they hoped to head off.
This explains their fervor to proceed at warp speed, hoping to complete the process before even more surfaces, thus threatening the nomination. Remember, President Trump is desperate to have a friend on the Supreme Court. It is so important that they are prepared to put a sexual predator and ethical nightmare on the Court. Kavanaugh would be a huge source of support for Trump with his confirmed beliefs about Presidential authority and immunity. This is not about appointing a conservative justice. This is about appointing a career Republican operative and believed Trump loyalist to protect the President if and when necessary as various investigations percolate up the courts. With everything we know, we cannot risk Brett Kavanaugh on the Supreme Court.