We’re Sexual Misconduct Law Experts. The Senate’s Brett Kavanaugh Investigation Is A Hot Mess


#1

In a previous post, I linked to an article titled “Kavanaugh’s Senate hearing is not a trial. The standard is not ‘reasonable doubt’.”

The crux of the article was to distinguish the purpose of the hearing (to determine whether Kavanaugh is suited to be on the Supreme Court) from that of a criminal trial (to render a verdict as to whether the accused is guilty). Since the hearing is essentially an extensive job interview, the standard of evidence used for weighing the allegations against Kavanaugh does not have to be as high or imitative of a criminal trial proceeding.

Many people are concerned that this gives too much leeway to the women who are making the allegations against him.

Enter the above article. Bear in mind it was published about a week ago and so will not reflect recent updates to the unfolding scandal, but nevertheless there is a portion of the article which I think is very worthy of note.

The committee’s proposal to limit the testimony to just the accused and accuser is contrary to the principle that investigations must be thorough. Because Kavanaugh has flatly denied the accusation, this is a “he said/she said” case. There is nothing unusual about that, given that sexual harassment and assault rarely occur in front of others. But what is unusual—and problematic—is the committee’s refusal to hear testimony from other witnesses who could potentially offer relevant information.

The committee’s intent to exclude potentially corroborating evidence illustrates that its proposed process is not designed to lead to factual findings. In “he said/she said” investigations such as this, factual findings necessarily turn on credibility assessments. Credibility certainly can be assessed absent corroborating evidence. Make no mistake—a complaining party’s report can be credited when the investigator finds them to be credible and when the account is sufficiently detailed and internally consistent so as to be plausible. Importantly, when the accused’s general denial is contradicted by other evidence—such as the alleged victim’s medical records and their past statements about what occurred—that denial carries little weight. Here, the committee’s proposed process conveniently excludes evidence that would contradict Kavanaugh’s claim that no assault occurred.

Presumably the authors are speaking from the perspective of a court of law. So if this is permitted in a court of law (which is more rigourous) as acceptable in the determination of guilt, how much more so open to this should the committee hearing be?


#2

Thanks. Great article that should help clarify the situation.


#3

However, they are now dealing with criminal accusations and since they accuser did not file criminal charges the confirmation process is a de facto legal hearing.


#4

Testimony that someone told someone something at a certain time is not evidence the alleged event occurred.


#5

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