Supreme Court Justice nominee Brett Kavanaugh has dug himself a hole from which he will not be easily extricated.
By “categorically” denying the allegation that he attempted to rape a fellow high school student some 36 years ago, Kavanaugh — because he is not very bright — created a semantic violation. By saying he categorically denied the allegation, he is saying that he denies this particular allegation, which opens the door to asking whether there were other occasions — other categories — during which he did attempt to rape someone.
He should have said that he “uncategorically and unequivocally” denied the allegation…but that’s not what he said, which opens the door to further investigation.
Not remembering that you tried to rape someone isn’t just selective memory. It is indicative that the event wasn’t a unique occurrence. If he had said he couldn’t remember, I wouldn’t believe him but I couldn’t disprove that statement. If he says that it never happened, let him take a polygraph and answer one question, “Did you ever force yourself onto a woman?”
(Unfortunately, if someone really doesn’t remember the event, that person could possibly pass a polygraph, if the interrogator focuses on that one occasion. Since Kavanaugh did not uncategorically deny the allegation, the door is open to ask about other occasions…and there might be other occasions that the polygraph might discover.)
The Maryland Statutes on Sexual Offenses
Under Maryland statutes now in effect, the behavior that has been alleged against Kavanaugh would have been a Second Degree Sexual Offense. It wasn’t a First Degree Rape because no sexual intercourse was achieved. It wasn’t a Second Degree Rape because, once again, it has not been alleged that penetration was achieved.
It wasn’t even a First Degree Sexual Offense because no threat or weapons were involved, but it was definitely a Second Degree Sexual Offense if the victim was drunk at the time, under 14 at the time of attack if the assailant was at least four years old than the victim. (Someone else will have to figure out whether the same laws applied in 1982 but changes in rape laws are usually retroactive, which is the whole point about changing rape laws…to extend the protection of the law to the victims.)
Note that the law makes no distinction about whether the assailant was drunk, but only whether the victim was drunk.
So, if it turns out that Christine Blasey Ford was drunk at the time of the attack (a fact not yet in evidence), then Kavanaugh is indeed on the hook for a felony violation without the shield of a statute of limitations to hide behind.
Under current Maryland law, there is NO statute of limitations for any felony rape charge. A Second Degree Sexual Offense is a felony and Kavanaugh could be on the hook for a serious prison term if the matter were pressed to its ultimate conclusion.
The Difficulty with Proving Rape
Proving rape has always been difficult when it is not associated with physical assault and injuries. Even with assault and injuries, the common defense — that the sexual intercourse was consensual — puts defendants facing rape charges in a very strong position. Even if there is DNA evidence, the consensual defense opens the door to an investigation of the victims sexual mores to provide evidence of a pattern of behavior that could substantiate the defense.
This is why so many rape cases are knocked down to assault with intent because it is much easier to prove assault with the gross physical evidence, and the lesser penalties make easier for prosecutors to sell that deal and obtain a confession-based conviction.
If rape is difficult to prove in court, even with substantiating physical evidence, attempted rape is even harder to prove because you don’t have the supporting DNA evidence.
Attempted rape is really assault with intent to do bodily harm because no rape was committed. Assault carries a much lower burden of proof than attempted rape because all you need is the physical evidence of an assault.
The simple solution would be to increase the penalties for assault to the point where it wouldn’t make sense for the defendant to plead down to assault because the penalties would be the same as the penalties for rape.
While some victims obvious want and need (and deserve) the vindication of a life-ruining conviction against the rapist who raped them, the question is whether a hard-to-get rape conviction is more of a deterrence than a much more easily obtained assault conviction, if the penalties are the same.
Of course, no legislature would ever approve this because the prisons are already overcrowded and no one (except for private, for-profit prison operators) wants to build more prisons…but more prisons aren’t the only solution. (I will leave the others to the reader’s imagination.)
Ms. Ford appears to be a credible witness against Judge Kavanaugh, at least in part because she had made the same allegation during a 2012 marital counseling session, long before anyone had ever heard of Brett Kavanaugh but that case isn’t winnable in court. There’s no physical evidence, no contemporaneous complaint, no documentation of injuries. This is a “she said, he said” case that no District Attorney would ever walk into court with.
The Court of Public Opinion
However, there’s another court where hearsay is admissible, and that’s the court of public opinion. Unfortunately, the court of public opinion in which this case will be heard is the United States Senate, where the Republican party has the thinnest of majorities with which to approve Kavanaugh’s nomination.
Unless two Republicans decide otherwise, an accused attempted rapist will soon be confirmed as a member of the Supreme Court of the United States BEFORE that case is ever adjudicated. If Christine Blasey Ford decides to pursue the matter , we might face the prospect of having a Supreme Court Justice tried and possibly convicted of Second Degree Sexual Offense in a state court.
After a long series of appeals, that case could eventually find its way to the Supreme Court of the United States, where ALL NINE of the sitting Justices would have to recuse themselves, one because he was the defendant in the matter and the other eight because of personal relationships with the defendant.
Kavanaugh cannot withdraw his nomination because to do so would increase the credibility of the complaint. He has no choice but to stick it out. We have no choice but to await the outcome to see if the Republicans will really put someone accused of attempted rape on the Supreme Court.
The Latest Word from the White House
With uncharacteristic restraint, President Trump has acknowledged that Kavanaugh’s nomination may not be approved as quick as he thought it would be. He also poo-poohed the suggestion that Kavanaugh might withdraw his name from consideration.
That’s usually the first step in the withdrawal process.