Ford vs. Kavanaugh

I know I shouldn’t write about this. I haven’t been in the USA for four years, and that was Before Trump, when everything changed over there. I’m an old white male, which implies that I know less than nothing, especially about subjects like this.

But on the other hand, I don’t have a dog in this fight. The chances of me even going back there for a visit are close to zero. And while I am not a woman, I have a wife and daughters who are always ready to explain things to me. So yes, here is what I think about Kavanaugh/Ford.

First of all, and most important, it is absolutely true that women today still deal with a huge amount of harassment, undesired advances, and sexual assault of various kinds, including rape. It is out there, it happens, and women have to think about it and be prepared to protect themselves at all times. Yes, it sometimes happens to men as well, but with nowhere near the same frequency or severity.

It is true that, even today in the #MeToo era, women are often ignored or even punished when they report inappropriate behavior to employers, or when they report assaults to police. It is also true that often they do not report it because they are embarrassed, they think it will do no good, or they think they will get into trouble or be blamed. In many (most?) cases, they are right about this.

This has to change. It seems to me that it is changing in the US, finally, with such widely publicized events like the arrest of Harvey Weinstein and the conviction of Bill Cosby. I doubt this could have happened when I was growing up. Here in Israel, a surprising number of high ranking officers in the IDF and police have lost their jobs over sexual harassment of subordinates, and a president of the country went to prison for rape. Is the everyday experience of ordinary women changing? I don’t know, but I suspect that it is, little by little.

We are, in America and Israel, undergoing a sharp cultural change, and when this happens it’s possible to overcorrect.  In order to re-balance an unbalanced system, we can make changes that have unexpected, and undesired consequences. For example, some colleges and universities instituted policies for dealing with complaints of a sexual nature that did not provide due process for an accused to challenge an accusation, and which required a low standard of proof in order to punish an accused person, often by expulsion with a notation on the student’s or faculty member’s record that the reason was a sexual offense. Clearly such a punishment would have great impact, and should not be imposed lightly. That’s true for Supreme Court nominees too.

Here is another example: one of the slogans of the #MeToo movement is “Believe Survivors.” This is in response to the fact that victimized women are often not believed. But the formulation of the slogan itself implies that anyone who makes a complaint is a “survivor,” that is, a victim. Obviously it is possible for someone to make a complaint that is deliberately or accidentally false or exaggerated, or to identify the wrong person as the perpetrator. Perhaps that slogan should be reformulated as “Listen to complaints and take them seriously.” Although it is not as catchy as “Believe Survivors,” it more accurately describes the proper action to be taken in response to a complaint of sexual assault.

The injunction to believe someone making an accusation simply because she is a woman and women are often unfairly disbelieved is wrong. It contradicts the most basic principle of justice, which is that it must be impartial, neither biased toward the weak nor the strong, the rich nor the poor, or be swayed by the race, sex, religion or other characteristics of the litigants. Once this is violated, even if it is believed to be for a good reason, then there is no justice – only favoritism, corruption, identity politics, or whatever. The right thing to do is to listen to the accusation, take it seriously, and try as hard as possible to confirm or disprove it, regardless of who is accusing whom.

It also should be obvious that if a woman making an accusation of sexual misbehavior should be believed a priori, then the burden of proof falls on accused person, who must show that the accusation is false. This violates the principle of presumption of innocence, found in all Western legal codes and the UN’s Universal Declaration of Human Rights.

As any policeman or prosecutor will tell you, the more time that elapses between the commission of a crime and its investigation, the harder it is to make a strong case. Physical evidence is lost, witnesses can’t be found, and memories fade and become distorted. The question of witnesses’ memories is extremely important. Everyone has had the experience of discussing past events with someone who was present at the time, and finding that – although you believed that you were absolutely correct about the details – your memories and the other person’s were significantly different. Sometimes one person remembers an event clearly while the other has absolutely no memory of what occurred. In one case, I was sure that I “remembered” an event at which I could not have been present; it turned out that my wife had described it to me. Memories are not reliable, even when you think they are.

The mechanism of human memory is very complicated; neuroscientists have developed numerous different models of how it works. One thing that is certain is that it is not like cinematography where a “film” of an event is created that accurately reflects the experience and can be played back in the future with no changes. First of all, the initial recording is affected by the person’s physical and emotional state at the time of the event, and the aspects of the experience that most captured the person’s attention. Second, the memory is processed and rationalized when it is saved in long-term memory. Choices are made, not necessarily consciously, if there are elements of the experience that don’t seem to fit. Third, long-term memories are recalled from time to time, sometimes just by the subject and sometimes when the subject tells someone else about it. Each time this happens there can be changes in detail or emphasis which modify the version of the memory that will be recalled the next time. The more time that passes, the more changes can occur.

For this reason, in a criminal trial the testimony of a witness, especially if the event happened long ago, needs to be corroborated, either by other witnesses or physical evidence. If the stakes are high – someone’s freedom, or their career – the uncorroborated testimony of a single witness is usually not enough to convict.

Another factor that is important in evaluating the testimony of a witness is whether the witness is disinterested. Does the witness stand to gain or lose financially or in some other way from his or her testimony? There doesn’t need to be a deliberate intent to mislead; people naturally tend to believe things that will provide them with benefits, either financial or – more to the point in this case – ideological.

Before continuing more specifically about the Kavanaugh/Ford affair, let me dispose of the objection that Kavanaugh’s confirmation hearing isn’t a trial, it is, in the words of Roger Cohen, “just a job interview,” and needn’t observe niceties like the presumption of innocence. It is by all means a trial, even if it is an informal one held in a committee room and not in a court of law. It is a trial in the medieval sense, in which accusations are made, and the accused must defend himself or suffer the consequences. In this case, Kavanaugh’s reputation, his credibility, and his personal honor – not just as a jurist, but as a man – is in peril, as is his future in his profession. It isn’t as though he were applying for a job at some law firm and if they don’t like him he can go somewhere else. Because so much is at stake, it is imperative that the basic principles of impartiality and presumption of innocence must be observed.

Ford claims that Kavanaugh committed an act which, if it happened as described, would constitute serious sexual assault. There is no one who can testify that they witnessed the event except three people who were in the room; two of them say that they do not recall anything like it, and one (Ford) says that it happened as she described it. There is no physical evidence, and no one who even heard Ford talk about it until she discussed it in a counseling session in 2012. In other words, one witness with no corroborating evidence.

The alleged incident happened thirty-six years ago. Most of those who saw her testify [video] believe that something traumatic happened to her at a party (although she doesn’t remember where or precisely when). But what precisely happened? Everyone involved had been consuming alcohol. There is teenage horseplay (in which girls often participate) that doesn’t rise to the level of assault. Yes, what she described was definitely assault, but what if the actual event was something less than that, and over the years the severity of what she “remembered” was amplified?

She had many opportunities to “rewrite” this memory over thirty-six years, and it may have changed. She claims that she was absolutely sure that it was Kavanaugh, but she didn’t tell anyone until 2012. There have been numerous cases of misidentification that have sent people to prison or even to their deaths. Is a misidentification possible in this case? I think it is.

There is another thing to take into account. Ford is not disinterested in the outcome of this hearing. She is an anti-Trump Democrat. Could this have had some effect on her recollections? Perhaps over the years as she observed the progress of Kavanaugh’s career she developed an obsession about this man that she believed had traumatized her when they were teenagers? It’s possible.

I am not accusing her of making up the story and certainly not of deliberately doing it for ideological reasons. I am saying that there is a reasonable possibility that she could be mistaken, and there are psychological mechanisms that could explain it.  But the consequences of this for Kavanaugh are so great that the presumption of innocence should apply. He should not be severely punished based on one witness’s uncorroborated testimony about an event thirty-six years ago.

Kavanaugh has suffered greatly through this process and it seems to me that even if he is confirmed, his credibility and reputation have suffered a serious blow. Certainly if you ask anyone old enough to remember the Clarence Thomas confirmation hearings what they think of Thomas, they will mention Anita Hill. In a larger sense, this latest “high-tech lynching,” to borrow Thomas’ words, was not as much about Christine Ford or Brett Kavanaugh. It was about getting Donald Trump, and paying the Republicans back for freezing the nomination of Merritt Garland.

But by far the most important reason for this circus is the massive elephant in the room: not Ford vs. Kavanaugh; rather, Roe vs. Wade.