As the Kavanaugh confirmation ploughs through to the full Senate vote, Republicans have articulated a grab-bag of arguments for dismissing Christine Blasey Ford’s sexual assault claim:
- It is a vast Clintonian left-wing conspiracy (predictable but ridiculous).
- Kavanaugh should not be judged for high school behavior (reasonable but complicated given the seriousness of the allegation and the job).
- The incident happened too long ago to be remembered (plausible but rebutted by Ford’s expert-like analysis of her memories).
- Kavanaugh is presumed innocent (arguable but this is not a criminal trial and proof, such as victim testimony, rebuts the presumption).
Until the late 20th century, sexual offense laws contained a “corroboration requirement” that a rape prosecution could not be proven solely by the word of the victim, no matter how credible. Nowhere else did criminal law presume victims to be dishonest and require independent evidence. The corroboration requirement reflected historically retrogressive and sexist views of women.
The New York Court of Appeals explained in 1939 that without the rule, “a defendant would be at the mercy of an untruthful, dishonest or vicious complainant.” In 1974, the D.C. Circuit Court of Appeals — the court Kavanaugh currently sits on — declared that the requirement is necessary because rape complainants “all too frequently” have “an urge to fantasize.”
Corroboration accompanied other archaic, and now defunct, doctrines that rape victims be “chaste” and resist “to the utmost” and that judges instruct juries that rape is particularly easy to fabricate. Over the last few decades, states have systematically eliminated the corroboration requirement by statute and case law.
Here’s how corroboration historically operated. A rape victim would make a complaint. The accused would deny, deny, deny. Often, the victim had no reason to lie and was credible. She may have told others about the rape.
Witnesses may have placed the accused at the scene of the crime. Nevertheless, courts would dismiss the rape charge unless the prosecution presented “independent” evidence such as an eye-witness testimony.
Sexual assaults generally happen outside of the presence of bystanders — although amazingly not in Ford’s allegation — making eye-witness corroboration impossible. Thus, in the bad old days, corroboration typically came in the form of serious injury. Without a black eye, there was no rape.
The requirement of corroboration is a presumption that rape victims lie. That presumption gave way to more reasonable credibility rules. One pertinent rule is that a witness can rebut a charge of recent fabrication with proof of a “prior consistent statement” that predates the motive to lie.
In this case, some have argued that Ford had a political motive to thwart Kavanaugh’s appointment. However, her 2012 and 2013 statements predate any such motive, refuting that argument.
Kavanaugh arguably has a much stronger motive to fabricate. As defense attorney, I heard prosecutors tell juries over and over that accused's lie to protect themselves. Kavanaugh seeks to rebut this motive to fabricate with the prior statements in his calendar, which, he asserts, attest that he was not at the party.
Kavanaugh supporters repeatedly characterize the statements by the three purported party attendees as “refutations” of Ford’s claims. However, these witnesses did not say, “I remember there was no party.” They said they cannot remember or, more opaquely, have “no knowledge.” In fact, Leland Keyser said she believes Ford.
At the present time, these forgetful witnesses are a wash. They do not corroborate Ford or Kavanaugh. Yet, the assumption is that only Ford’s credibility suffers from this lack of corroboration. Nobody mentions that the witnesses provide no alibi for the judge.
Republicans’ histrionic proclamations that the hearing was “hell,” “crap,” and “a national disgrace” do not change the basic issue at hand: whether Ford’s apparently honest claim that Kavanaugh committed sexual assault decades ago as a teen should affect his Supreme Court candidacy. Reasonable minds can differ.
We can debate the science of memory and the effects of trauma and passage of time. We can argue whether we should “ban the box” for Supreme Court nominees. We can talk about the level of proof of wrongdoing required for derailing a nomination. But we should never summarily declare a rape victim’s testimony to be “no proof” because it lacks “corroboration.”
Aya Gruber, J.D., is a professor of law at the University of Colorado. She teaches, researches and writes on sexual assault; her forthcoming book is “The Feminist War on Crime.”