The Kavanaugh hearing needs expert testimony and an FBI investigation
© Greg Nash

The unnecessary rush to have Christine Blasey Ford testify in the Senate Judiciary Committee’s hearings on the Supreme Court nomination of Brett Kavanaugh is unfortunate, because it detracts from what should be the committee’s important goal: a credible, informed process that would educate senators and the American people alike about these allegations.

This matters now and for how Congress and this country handle sexual assault allegations in the future. As a member of the Senate Judiciary Committee and former federal prosecutors, we believe the stakes are simply too high to handle this process badly, not only for Ford, but for sexual assault victims across the country.

ADVERTISEMENT

There are a number of things the Senate Judiciary Committee and the president can do better.

First, the Judiciary Committee is refusing to gather all the facts. Ford, through her attorney, has requested an FBI investigation of her allegations, which has so far been denied. The context here is important: the FBI regularly investigates allegations brought against judicial nominees. Twenty-seven years ago, the FBI completed an investigation into professor Anita Hill’s allegations against then-nominee Clarence Thomas in a matter of days.

Second, we should also be informed by the testimony of other witnesses, such as Mark Judge, who was allegedly in the room during the assault. Professional investigators could easily identify other witnesses who knew Judge Kavanaugh and Ford at the time. The assessment of such witness testimony should be paired with expert testimony about sexual assault trauma and its effects on survivors.

The effect of trauma upon survivors of sexual abuse is complex and can seem counter-intuitive. Take for example the widespread phenomenon of delayed reporting and disclosure after a sexual assault. Uninformed reactions to a delay in reporting or even initial denials of an assault having taken place typically conclude the survivor is lying. But widely accepted research demonstrates that delayed reporting is common among survivors of sexual assault and that it is particularly common in younger victims. This last point is especially relevant to the current case since Ford was only 15 years old at the time of the alleged assault by the 17-year-old future Judge Kavanaugh. Law enforcement also recognizes the validity of this scientific research and has begun to commonly adopt trauma-informed victim interviewing in sexual assault investigations.

The use of expert testimony in both civil and criminal proceedings is commonplace and used when a judge determines that an expert is needed to aid the public’s understanding of the topic. As a prosecutor, one of the co-authors pioneered the use of expert testimony in a domestic violence case where the expert explained to the jury common behavior among survivors of domestic abuse, such as staying in a relationship or returning over and over to an abuser. Such behavior appears counterintuitive but happens every day. The judge in that case agreed that expert testimony was necessary to counter the wrongly held notion that if a survivor of domestic violence remains in an abusive relationship, then the survivor must be lying about the abuse. Similarly, the Senate Judiciary Committee often benefits from the testimony of experts. The committee could use expert testimony to guard against the uniformed and wrong-headed assumption that an adolescent girl who delays disclosing an alleged sexual assault must be lying.

The committee should hear from experts with scientific training in the effects of trauma on sexual assault survivors, as well as experts with first-hand experience advocating for and counseling survivors. The testimony of such experts would provide an informed context in which the committee could ask more meaningful questions and make more informed decisions about credibility.

Incorporating the use of expert testimony is critical to the integrity of the Kavanaugh hearings.  Without it, Senate Judiciary Committee members run the risk of asking questions and making ill-informed arguments that will not only be insensitive and demeaning to Ford, but accomplish little with respect to fairly assessing the witness’s credibility. With the use of a modern and well-accepted process and the completion of a federal investigation, the committee could hold hearings that would set forth an accurate understanding of sexual assault, so senators and the American people would be better equipped to make an informed assessment of the facts. The Senate and our country would be the better for it. 

Coons is a member of the Senate Judiciary Committee. Wu and Grohovsky are former federal prosecutors who secured the first life-without-parole sentence for a rapist in Washington, D.C.