White-Collar Crime

Just Because Kavanaugh’s Accuser May Not Be Lying Doesn’t Mean She’s Telling the Truth

The truth is a difficult thing to pin down based on witness testimony in even the best of cases.

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(photo by Jabin Botsford/The Washington Post via Getty Images).

I suspect that Christine Blasey Ford believes what she’s saying about Brett Kavanaugh. But that doesn’t necessarily mean she’s telling the truth.

I have represented scores of students and professors in sexual misconduct cases nationwide — mostly the accused, but also some accusers. And Dr. Ford’s allegations fit a familiar pattern I’ve seen time and time again.

Two young people are at a party. They’ve both been drinking. Some sort of sexual activity happens. One of them is uncomfortable with what happens but says nothing about it at the time, not even to her closest friends.

Then, something happens. Maybe it takes a day, or a month, or even a few years — all of which I have seen. Over time, what might have been a gray and messy narrative — not uncommon when it comes to drinking adolescents — starts to take on firmer shape.

Here, that process took not a week, or a month, or a year, but 30 years. Dr. Ford had 30 years, during which time she told literally no one about this, to stew on that night. She didn’t tell her best friend. She didn’t tell a subsequent boyfriend. She didn’t even tell her husband until they wound up in couples’ counseling.

Moreover, why were they in couples’ counseling, and what might that have to do with the allegations? To be sure, it’s impolite to ask such questions. But investigations aren’t supposed to be polite; they’re supposed to be fair.

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But again, to wonder if this actually happened isn’t to say that Dr. Ford is lying about it.

To tell a lie is to tell an intentional untruth — to say something that you know is false. Nothing in her account so far, or that I suspect we will hear from her moving forward, has suggested that she is intentionally lying. I suspect that, if she ends up testifying — which it now looks like her lawyers are trying to prevent by conditioning her testimony, at least for now, on first doing an FBI investigation — she will give a genuinely impassioned account of what she believes happened that night at a party some 36 years ago.

The problem is that this will never amount to anything more than a swearing contest. There is little chance that, even if questioned by the FBI, the only other person in the room — Judge Kavanaugh’s old friend, Mark Judge — will turn on him. (Given what we’ve seen so far, I think there is little chance that the Senate Judiciary Committee will change its mind and call him to testify.) Mr. Judge (oh, that Dickensian name!) has no incentive to do that, and he must know that Judge Kavanaugh himself will never admit to doing anything.

So all of the calls for a deeper investigation into this case, while predictable kabuki, are ultimately meaningless. Any investigation, if one occurs, will likely proceed this way: Ask Judge Kavanaugh. He’ll deny it. Ask Mr. Judge. He may not talk at all, and if he does he’ll deny it. Ask Dr. Ford. She’ll say it happened.

And that’s it. (Don’t get me started about the “other witnesses” canard. If you think that anyone else might credibly remember whether Judge Kavanaugh happened to be at a certain party at an unknown house on an unknown date sometime in 1982, then I have a bridge to sell you. Or maybe Bitcoin. I don’t know what’s supposed to sound sillier in 2018.)

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Then how do you break the tie? The problem is that you just can’t — at least not fairly, on these facts.

To be sure, there are some who will say that one should always believe the victim. But that’s not how we do things in America. We don’t automatically believe anyone. There are also some who will say that Dr. Ford is just a partisan liar. But there is little valid evidence of that, either. (The fact that her lawyers are Democrats is not valid evidence. As anyone who practices law in D.C. is well aware, they are just really, really good lawyers.)

From what little we know at this point, Dr. Ford seems to genuinely believe what she’s saying.

But that doesn’t make it true. Time and again, I have seen accusers convince themselves of things that simply did not happen, especially when alcohol is involved. Maybe Judge Kavanaugh made a clumsy pass at her that night, or maybe she consented to something and then immediately came to regret it. Maybe he wasn’t even there, as he himself insists, and she’s confusing him with someone else.

But then, over the years, for whatever reason, a new narrative began to emerge in her mind. And something that was perhaps clumsy or awkward — not uncommon among teenagers who have been drinking — became something far more sinister. The fact that she has psychological training, to my mind, makes that more likely rather than less likely. She knows the language.

Memory isn’t a VCR. We form our memories both actively and passively. That may be what happened here: something awkward or uncomfortable happened that night, and Ms. Ford, over the next 36 years, turned it into something more sinister than it actually was.

If you take it as a given that it will be impossible to break the tie, what do you do with that? What would it mean to create an environment in which the nomination of a Supreme Court Justice can be derailed based on fundamentally unprovable allegations that happened 36 years ago when he was a teenager? Might that ultimately create more problems than it solves? Because even if you believe that Dr. Ford is telling the truth, or at least believes that she is, surely that wouldn’t stop someone from coming out of the woodwork and intentionally lying about a future nominee — who saw what happened to Judge Kavanaugh and saw an opening.

These are not simple cases. Sometimes people tell the truth, and sometimes they convince themselves of things that are not true. That doesn’t necessarily make them a liar; it makes them human.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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