The Brett Kavanaugh confirmation was always expected to be difficult. Mitch McConnell, for example, suggested that President Trump not nominate him because of his substantial paper trail that would theoretically take months to produce. Senate Judiciary Committee Republicans, of course, did not let that stop them from setting hearings and votes before even a majority of the papers were produced.
That, in the end, did not end up being the most problematic factor presenting challenges to Kavanaugh’s confirmation. Rather, it was allegations of sexual assault that caused the most sturm und drang over the past two or three weeks. Yesterday afternoon, after the Senate’s cloture vote and some speeches on the floor, Kavanaugh looks to go to final vote this afternoon with the final vote being 50 in favor of confirmation, and 48 opposed. I don’t think anyone expects any surprises.
Salt the Fields
The win-at-all-costs, burn-and-salt-the-fields approach to elevating Kavanaugh to the Supreme Court carries with it carries severe implications for law enforcement and respect for the judiciary. (I’m actually of the opinion that that is actually an intended side benefit of the confirmation battle.)
Put aside for a moment the fact that 2/9 of the Supreme Court will be men credibly accused of sexual assault. There were far more reasons, as I’ve been trying to argue for quite some time, to oppose the nomination. For example, he lied profligately and repeatedly to the Judiciary Committee about matters immaterial and crucial. He espoused nonsensical conspiratorial views about the political party which has garnered more votes in every election since 1992 except for 2004. He showed that he would let emotion get the better of him for political purposes. And he showed that he has no respect for a coequal branch of government.
Collateral Damage for Kavanaugh
How, exactly, is an AUSA supposed to bring charges for false statements without having the defendant argue that a Supreme Court justice lied his face off to Congress and got rewarded? How is any opinion coming from the Supreme Court attached to Kavanaugh going to be seen as anything but partisan? How many times will he be asked to recuse himself from cases because the issue before the Court involves politics and political parties, and he’s on record stating that he thinks that Democrats are the party of search and destroy?
Forcing Kavanaugh onto the Court certainly exacerbates the divisions in this country, but the distillation of his confirmation down to whether he committed sexual assault also drastically impacts the ability of prosecutors to do their jobs in prosecuting sexual assault claims because his supporters have severely undercut the most powerful tool prosecutors have: single witness self-corroboration.
Corroboration
Without going into the astonishing deficiencies of the background check conducted by the FBI this week, Republicans have been gleefully saying that there is no corroboration for Dr. Ford’s testimony that Kavanaugh sexually assaulted her.
- Jeff Flake said there was no new corroborative information in the FBI report.
- From the same source, Susan Collins said the same thing.
- The FBI report is characterized as saying that it concluded that there was no corroboration to Dr. Ford’s testimony (which is pretty hilarious since Kavanaugh made a huge show during his unhinged second hearing that the FBI doesn’t come to conclusions in its reports).
- Tom Cotton got into it tonight with someone on Twitter, saying there was no corroboration to Dr. Ford’s testimony, but I haven’t been able to find the tweet on his profile. *shrug*
There are many more instances of Republicans saying that there is no corroboration, and I’m sure there are plenty of reasonable people who would feel the same way. And indeed, for most prosecutions, at least in Texas, corroboration is required. (See e.g., Tex. Code Crim. Proc. sec. 38.075.)
Thing is, that’s not how sexual assault prosecutions work.
How These Prosecutions Work
In sexual assault prosecutions, corroboration isn’t actually required. If the assault occurred when the complainant was between 18 and 65 years of age, a conviction is supportable on the uncorroborated testimony of the complainant, so long as the complainant told somebody other than the defendant within one year of the assault. Tex. Code Crim. Proc. sec. 38.07. That one year requirement, however, does not apply when the assault occurred when the complainant was younger than 18, older than 65, or is between 18 and 65 but is somehow infirm.
So that’s the first consideration–corroboration isn’t required to prosecute someone for sexual assault.
But the second consideration is that skilled prosecutors use the complainant’s own statements to self-corroborate the complainant. Let me explain how this works.
First, a person makes an outcry to a person. In the case of a minor, it might be to a parent, or a teacher, or someone trusted. That adult then contacts law enforcement. If law enforcement is good, they won’t actually talk to the complainant, because the goal is to get the complainant to a forensic interviewer who is skilled in interview techniques that are designed to get the complainant to tell her story without having information fed to her. Then, depending on when the assault happened, the complainant might be referred for a SANE (Sexual Assault Nurse Examiner) exam, which is incredibly intrusive but also contains the taking of a statement from the complainant. The complainant may then be referred to counseling. If charges are filed, the complainant will typically interview with a prosecutor or investigator.
Self-Corroboration
During each step of the process, a record is made of the complainant’s statements. A skilled prosecutor will take those statements and weave a narrative about how they tell a story, and it will go something like this:
- The complainant tells her mother that Y person did X thing to her in Z place.
- The mother contacts law enforcement and a general statement from the mother is taken which will describe that the mother was told by the complainant that Y person did X thing to her in Z place.
- That will be used as outcry hearsay that will be used to corroborate what the complainant told her mother.
- Then she talks to the forensic interviewer. During that interview, she tells the interviewer that Y person did X thing to her in Z place.
- That corroborates what she told her mother.
- After the forensic interview, she does a SANE exam, and tells the SANE nurse that Y person did X thing to her in Z place.
- That corroborates what she told the forensic interviewer and what she told her mother.
- After the SANE exam, she gets referred to counseling, and tells the therapist that Y person did X thing to her in Z place.
- That corroborates what she told told the SANE nurse, forensic interviewer, and the mother.
- Then she interviews with an investigator, and tells the investigator that Y person did X thing to her in Z place.
- That corroborates what she told the therapist, the SANE nurse, the forensic interviewer, and the mother.
- And then she testifies at trial that person Y did X thing to her in Z place.
- And that corroborates what she told the investigator, the therapist, the SANE nurse, the forensic interviewer, and the mother.
- Then the prosecutor will introduce pictures of Z place and that will corroborate that Z place exists.
This is, of course, simplified, and there are lots of variables that go into this, but that’s the general thrust. One witness, self-corroborating. And it’s how prosecutions are made All. The. Time. (It also must be acknowledged that there are far too many situations in which charges have not been brought because law enforcement simply shrugs because, hey, it’s he-said she-said, and eh, whaddya gonna do? That’s a topic for another time, perhaps.) And defense attorneys rail against this approach and occasionally are able to get a jury to acquit.
Practical Effects of Kavanaugh’s Confirmation
But I can’t imagine that the Law and Order party really wants defense attorneys to start using Kavanaugh’s confirmation to cast doubt on cases involving a complainant who has been sexually assaulted but can only corroborate herself. It will be very tempting for a defense attorney to say “Ladies and gentlemen of the jury, the prosecutor has put on a case with no corroboration. Sure, the prosecutor says that the complainant corroborates herself, but 51 United States Senators, including your very own Senators, heard testimony from a woman arguing the same thing. And they said that that was not corroboration. In fact, they put that man on the Supreme Court! You can’t possibly convict this man on evidence that isn’t corroborated in any way!”
I guarantee it will happen, and it might even be effective. In their zeal to get this guy on the Supreme Court (people say he’s smart, but is he?), they’ve corroded institutional respect for the Court and for law enforcement. Hell, Kavanaugh can’t plausibly rule on any case that gets to the Supreme Court involving this sort of fact pattern in any way other than saying that a complainant can’t self-corroborate or else he gives up the game. Either that, or he will have to recuse.
I guess they think it’s worth corroding the legitimacy of the Supreme Court as long as they own the libs.
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