"Not My Type"

President Trump has, yet again, been accused of sexual assault in his past.

E. Jean Carroll, a New York-based writer and longtime women’s advice columnist, accused President Trump of sexually assaulting her more than two decades ago in a dressing room of an upscale Manhattan department store.  The encounter was revealed in an excerpt of a book published Friday, June 21, 2019.  In an interview with The Washington Post on that afternoon, Carroll reiterated the allegations, saying that Trump attacked her in her dressing room at Bergdorf Goodman in late 1995 or early 1996.  She described the attack in great detail.  

She chose to reveal her story now, hoping that it “will empower women to come forward and not feel bad … I blamed myself and I was silent and I felt guilty.  I beat up myself terrible.”  Carroll is one of 16 women who have publicly accused Trump of sexual misconduct over the pasta several decades.  Most spoke out just weeks before the 2016 election after the revelation of the infamous Access Hollywood tape.

Trump for his part has of course denied the allegations, dubbing them fake news; that Carroll was “totally lying.”  “I’ll say it with great respect: Number one, she’s not my type.  Number two, it never happened.  It never happened, OK?"

There's something very telling that Trump's first dodge is to say "she's not my type."  It’s a downplaying of the crime.  It deflects by tying sexual assault to more traditional sexual relations.  The misconception that sexual assault happens because someone gets carried away by their sexual desires and/or hormones and loses control.  That the person is so captivated by attraction to the other person that they just have to have them.

While sex is undoubtedly part of sexual assault, such attraction is rarely a component part of the assault.  Sexual assault is first and foremost violence.  It’s a violent attack.  An attack based on power and control, happening because perpetrators put their desires over the other person’s.  

This is an important distinction.  Framing sexualized violence as about sex and not about violence puts the focus on the perpetrator’s narrative and not the survivor’s.  Focusing on the perpetrator’s narrative leads society to blame the victim or not hold the perpetrator accountable for their actions.  Or to be able to deny anything ever happened because the perpetrator could not possibly be attracted to the victim - to believe the perpetrator over the victim.  A part of the continued narcissism of the perpetrator that they are not the problem.  

The GOP for their part has decided to stand by Trump, choosing to believe him over Ms. Carroll.  “All I would say: We live in an environment where people can come forward.  That’s good.  But allegations like this have to be cautiously reviewed,” said Sen. Lindsey Graham with a slight eye roll.  Trump was “firm.  Unequivocal.  I have no reason not to” believe him.  

Were this one accusation against Trump, it would be one thing.  But it's part of a series of accusations against him, including one from his former wife, Ivana.  Part of the televised bragging of sexual assault as a come on technique in the Access Hollywood tape.  

The pattern of a man who thinks he can takes what he wants.

At what point do the numbers tip the scales?  At what point do the number of victims give us pause?  Do they reveal a pattern of misconduct?  Paint the picture of a serial assaulter?   At what point do his own words trap him?

Every time you think we've hit bottom, we just keep digging further down.  

How much more is going to happen over the next year and a half?

Do I really want to know the answer to that question?

A Good Person - Updated

"The Lord looks down from heaven on the sons of men to see if there are any who understand, any who seek God.  All have turned aside, they have together become corrupt; there is no one who does good, not even one."

Psalm 14:2-3

Yesterday, the Senate Judiciary Committee held its questioning of Judge Brett Kavanaugh and his accuser, Dr. Chrisine Blasey Ford.  And the day proved a study in contrasts.  The morning questioning of Dr. Ford was marked by a credible and emotional witness who described in detail the alleged assault and the effects that it has had on her life and by very measured questioning from the committee and the investigator who handled all of the Republican questions.  Dr. Ford was adamant that she was "100%" certain that Brett Kavanaugh was the person who assaulted her.

The afternoon was a much more fiery affair. Judge Kavanaugh was just as adamant in his denials, and almost defiantly so.  The questioning, at least initially, became much more of a hostile witness approach, with Kavanuagh reciprocating and treating questions from the investigator and the Republicans on the committee much more directly and appearing openly hostile to the Democratic questions.

The entire hearing was one filled with more dramatics and theatrics surrounding the timing of disclosure and the lack of a more in depth investigation.  All in all, we got what we mostly expected.  No new information, beyond confirming that Dr. Ford has a credible allegation.  We still have a he said/she said account of the events and have possibly impugned the character of the Senate Judiciary Committee in the process.

"Too often we judge other groups by their worst examples while judging ourselves by our best intentions."

President George W Bush

One particular refrain throughout the hearing were the accusations of political maneuvering and conspiracy.

Republicans are trying to ram this through without a full investigation.  

Democrats sat on these allegations and have delayed until now just to derail the process.

Kavanaugh even included the possibility this was all a "political hit" and potentially all "revenge on behalf of the Clintons."

Everyone looks noble to their side and assumes the worst of the other, and both sides have been guilty of this.  If we take off the presumption that the opposing side is only acting in the worst possible way, it seems we have reached this point because Senator Feinstein had never planned to reveal Dr. Ford's accusations at all and did not do so until the information had already been leaked.  Contrary to what was discussed in the hearing, what leaked first was the fact that Senator Feinstein had a letter regarding some allegation.  This information very well could have come from one of the friends Dr. Ford told about the assault and the steps she had taken.  The letter itself did not leak until two days after the Intercept article.  Then Dr. Ford came forward when reporters began hounding her.

From what we have heard from Senator Feinstein, these allegations may very well have remained completely confidential and undisclosed had the information not leaked.  At this point, we do not know why Senator Feinstein took such an approach.  Perhaps she took confidential to mean that Dr. Ford did not want the allegations to come out at all.  Perhaps Senator Feinstein did not believe the allegations in the letter were credible enough at that point without further open discussion to derail the confirmation process.  We do not know enough at this point to assume and impugn motive.

Likewise, we impugn ill motive on the circus that has surrounded the scheduling of this particular hearing and the delay that resulted.  And while political motivation is possible and probable, there are many other complex factors that certainly played large factors.   Just in my office, trying to schedule a short meeting can be downright impossible.  I cannot imagine what occurs at this level.

For certain, there is plenty of blame to be thrown around regarding how this all went down.  But there is nothing gained (but political favor) by continuing to denigrate the opposite side.  There is nothing gained from calling this whole process a sham, as Senator Lindsey Graham so indicated, beyond continued division.  And because both sides took this approach, we gained very little in terms of questions to either Dr. Ford or Judge Kavanaugh, and instead came away more with the political theatrics and grandstanding.

Let me tell you what I wish I'd known
When I was young and dreamed of glory
You have no control:

Who lives
Who dies
Who tells your story

Who Lives, Who Dies, Who Tells Your Story - Hamilton

What we have seen through this whole process is a tale of two Brett Kavanaughs.  Judge Kavanaugh presents his past as one where he was the ultimate goodie-two shoes.  His testimony focused on how he was top of his class, got into Yale, into Yale Law School.  He was always working, always studying, always working out or with the athletic teams.  He documented everything meticulously.  As many people stated and as was stated throughout the hearing, he was and is a "good person."  Sure, he enjoys beer, who doesn't, but he has never been that hard of a partier.  Never blacked out or not remembered the night before.  How could such accusations about him be true?

And yet, there is also the Brett Kavanaugh of the allegations.  Now three different women have come forward and have accused Kavanaugh of some form of sexual impropriety.  Some of the allegations have been corroborated, though anonymously.  Further, there are classmates who have stated they remember Kavanaugh as a blackout drunk, a belligerent drunk, a very hard partier.   There's the Kavanaugh of his yearbook which seemed to paint a different picture of his high school days that the one Kavanaugh has been stating.  Even with the more innocent explanations, there is a picture of how Kavanaugh is at least remembered by some that does not match Kavanaugh's own story.

And this matters because we are down to he said/she said.  Because we have two people who both claim 100% certainty, though in complete opposition.  Dr. Ford's testimony has the appropriate gaps in memory that we would expect from such events.  Things that are seared into her brain, while others take reconstruction or are not remembered.  This is why eye witness testimony is one of the least reliable types of evidence.  Our memories are faulty.  They leave out details, they have gaps, people focus on different things.  If you have a group of people who all tell the exact same story down to the last detail, it is generally thought of as unbelievable, as it comes across as rehearsed and likely fabricated.

Kavanaugh has left himself no wiggle room in his testimony.  His past has to be perfect or he has planted doubt as to what he is covering up.  He has categorically denied even ever being at a party like the one Dr. Ford described.  He is placing such strong emphasis of his memory of events from 36 years ago and on his transcribed record of the time, he leaves himself no room for error.  No room for anything he may have forgotten or mis-remembered.  And because we have other accounts of a different version of Brett Kavanaugh from that time, the question of his past continues to be a specter over these allegations.  Even a simple, "yes I partied hard and have definitely been very drunk in the past, but I know I never did this" (if true) could have gone a long way to address the conflicting accounts.

The truth is likely somewhere in the middle.  Could Kavanaugh have been so drunk that he didn't remember being at such a party?  Could Ford have mis-identified her assailant?  Without further investigation, these are the type of questions that we will not have answered.

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Ultimately and unfortunately, this is likely where this process ends.  As of now, the Senate Judiciary Committee still plans to vote today to recommend Kavanaugh for the nomination.  No further investigation is planned at this time, though one has been recommended and requested by several organizations including the American Bar Association.  We are likely never going to have more information on the accusations or the underlying facts at issue.

What we can do is work on changing the world around us to help make sure we as a society are not in this situation again.

• Every 98 seconds an American is sexually assaulted.
• And every 8 minutes, that victim is a child.
• 1 in 6 women have been sexually assaulted or raped.
• 3% of men have experienced sexual assault or rape (likely higher due to under reporting).
• An average of 63,000 children a year are victims of sexual assault.
• 9 out of every 10 rape victims are female.
• 6 out of every 1,000 perpetrators will actually see prison.
• As of 1998, it is estimated that 17.7 million women have been sexually assaulted or raped.

• About 2 out of 3 sexual assaults go unreported.
• 7 out of 10 rapes are committed by someone known to the victim.

We've got to work on changing system to believe sexual assault victims when the come forward and to encourage victims to speak up and support them through the process.  Because some other statistics are even more troubling.

Of those who were assaulted and did not report, but offered a reason for not reporting:

• 13% believed the police would not do anything to help
• 13% believed it was a personal matter
• 8% believed it was not important enough to report
• 7% did not want to get the perpetrator in trouble

While the most common reason was a fear of retaliation, the reason above represent 41% that either did not believe anyone would help or did not want to trouble the perpetrator.  Because sadly, the perpetrator is most often someone they know and someone they think would be more believable than them.

Someone everyone else would think is a "good person."

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Update - As of 2:00 pm ET, the Senate Judiciary Committee voted 11-10 to advance Judge Kavanaugh's nomination to the Senate Floor.  By 3:50 pm ET, the Senate Republican agreed to a delay of no greater than one week to allow for an FBI supplemental background investigation into the allegations against Judge Kavanaugh.

Evidence, Confirmation, and Kavanaugh

The confirmation hearings and process for Judge Brett Kavanaugh have proven a very interesting lesson in the importance of evidence.

To being with the first day of his hearings began with the Democratic members of the committee moving for a delay due to issues with Judge Kavanaugh's record being produced to them.  (I'm not going to address the protesters as they are an unrelated issue).  The Democrats complained that 100,000 pages from Kavanaugh's tenure in the Bush White House had been withheld and further complained about the release of 45,000 pages the night before the hearing, a move commonly known as a "document dump."  And while the Democratic's took the histrionics a bit far, there is validity to their complaints.

First, regarding the missing pages.  The purpose of discovery or disclosure is to lead to the discovery of admissible evidence, that is evidence that might be relevant for trial.  It is purposefully broad, as the entire goal of the discovery process is to get to the truth.  There are exceptions to what can be discovered, but by-and-large information that might be relevant will generally be made available to both parties in suit.  We do not want parties winning a suit by withholding relevant information.  By concealment.  We want the truth out, so the truth can set us free, literally and metaphorically.

The same holds true in these political proceedings.  We do not want appointments to succeed because of concealment or a lack of disclosure.  Particularly with judges, where precedence will matter and where their appointment will be a life-time one, we want the full-record available for examination and thorough debate.  We want the members of the committee to be able to review as much as possible regarding the candidate's record, to determine the most important questions that the candidate should address.  They need to be able to sort through the whole set to see if there are any surprises. If there are things that would affect their vote.  And to be able to review such materials in a sufficient amount of time before the hearing.

Second, regarding the "document dump."  "Document dump" refers to the practice of sending your opponents thousands to millions of pages of documents, sometimes of very little value, often as close to the discovery deadline as possible, to make it very difficult for the opposition to sift through the documents to find anything useful.  It can be used to bury damning or harmful documents, forcing the opposition to really have to work in order to be able to find them.

Contrary to popular opinion, it's not good practice for attorneys to engage in a "document dump."  First, modern discovery really doesn't work that way anymore.  With most documents being digitally stored (email, computer files, etc) the bounds of discovery are often set through search terms and custodian identification.  Negotiating search terms can often be one of the more tedious negotiations in the process just to ensure you capture what you want, without bringing back too much extra with it.  So even for those companies that just run the terms and produce nearly sight unseen, the set is generally more limited than it used to be in the past.  Second, missteps with discovery can lead to heavy sanctions, up to and including "death penalty sanctions," like the striking of the parties' pleadings.

We should expect better than a document dump the night before the committee hearing.  There is no reason to push this appointment through on such an accelerated time frame, other than politics. It is sad that we are at the point where such appointments are now voted on strict party lines, but it does not excuse a hurried procedure. We've seen what terrible results come from bills too large pushed through Congress with little reading.  We do not need that in our appointment process as well.

So, while the Democrats deserve no praise for their theatrics in making their objections so theatrical at the beginning of the hearing, the Republicans likewise deserve no praise for their attempts to overly expedite the process, leading to the concealment of documents.

Another interesting turn regarding the process came with the discussion of use of the "Committee Confidential" designation.  Before the third day of the hearing, Senator Cory Booker released "committee confidential" documents without the approval of the committee, so the documents could be discussed in the hearings.  Again, bad actions and histrionics by Republicans and Democrats alike.

The "committee confidential" designation is one that applies only to the committee process, here the judicial committee, and has no connection to actual designations for national security.  It has been used in the past to cover potential embarrassing or sensitive materials.  It was in the past, a designation applied by agreement of both parties in the committee.  It referred to areas both parties agreed would not be discussed.  Here, Chairman Senator Charles Grassley (R) alone designated the documents committee confidential.  And the Democrats then fought to have the designation removed, to the point of releasing the documents in direct defiance.  The issue ended up being moot, as the documents released were cleared for release very early that morning (2:00 am - 3:00 am).  I suppose no one read their email that morning.

Again, likely a battle that could have been completely avoided, had the parties been a little more patient in scheduling.

Finally, we come to the new issue that has come up through the nomination and hearing process.  Judge Kavanaugh has been accused of sexual assault (attempted rape) in the 1980s by Christine Blasey Ford, a fellow high school student in suburban Maryland at the time.  Ford alleges that Kavanaugh and a classmate, Mark Judge, both stumbling drunk at the time, corralled her into a bedroom during a gathering of teenagers, pinned her to a bed, groped her over her clothes, and attempted to remove her clothes.  When she tried to scream, she alleges Kavanaugh put her hand over her mouth and Judge turned up the stereo to muffle the sounds.

Ford contacted the Washington Post through a tip line in July when Kavanaugh was announced on a short list, contacted her local congresswoman, Anna G. Eshoo, and sent a letter to Senator Diane Feinstein, the ranking Democrat on the Judiciary Committee.  In all methods of contact, Ford asked to remain anonymous and confidential, but wished to pass on her story and concern.  Ultimately, she decided she did not want to go public with her story due to the upheaval it would bring to her family.

Ford's story leaked in the Intercept on Wednesday, September 12, 2018, who reported on the letter that Senator Feinstein had received.  Though Senator Feinstein had the letter since July, she released a statement revealing that she kept it confidential as requested, but referred the matter to federal investigation.  By Friday, September 14, 2018, the New York times reported the letter's contents, but not the author. Ford then decided to come forward through an interview with the Washington Post on Sunday, September 16, 2018.

Kavanaugh categorically denies the allegations.  Both Kavanaugh and Ford have agreed to testify before Congress regarding the allegations.  And the senate committee will hold a public hearing on the issue.

And now we have one of the most challenging evidentiary cases affecting the nomination; what essentially boils down to the he said/she said all to common in sexual assault cases.  And the battle lines have been drawn.

Conservatives are quick to point out how and why Ford is lying.  Because it happened so long ago, because she waited so long to tell anyone, because she first gave notice anonymously, because it's only happening now that Kavanaugh is nominated for a high office.  Her liberal bias and donations are showing so she can block his nomination - she has the most to gain.

Liberals are quick to side with Ford against Kavanaugh, choosing to immediately believe the accuser.  They argue he has the most to lose; of course he would lie to protect his interests.  Or worse, could it be an episode where he was so blackout drunk he remembers nothing.  The other alleged perpetrator's book includes mention that would seem to paint Kavanaugh as a pretty hard partyer and drinker at the time.  Further, it seems odd Kavanaugh would be so quickly able to get 65 female friends from that time period to be able to write him a character recommendation.

Of course, all of those views in those two paragraphs above are speculation.  Our system of jurisprudence requires two things: we take the allegations seriously (we believe them and we investigate them fully) and that the accused is innocent until proven guilty.  The allegations are not proof.  They are the start of the process and they must be treated with appropriate weight.  We cannot just dismiss them out of hand.

To Ford's accusations, it appears she has notes from her therapist regarding the incident dating back to 2012, when she first discussed it, and there are multiple mentions from that time forward with her therapist and husband.  She further has undergone and passed a lie detector test regarding her allegations of the incident at the advice of counsel.

And we should not be surprised at any delay in a sexual assault victim coming forward.  It is much, much more common than you can imagine.  It is in fact, more surprising that she ever decided to come forward at all.  It is believed only 15.8% to 35% of all sexual assaults are ever reported.

So we have a nomination process shaping up now to be a lot more like Clarence Thomas' nomination than anyone would have expected, with major differences of course.  There the accusations spoke to Thomas' actions while in government life.  Here, the accusations go to Kavanaugh's youth.  At what point do the actions of our youth become the "foolishness of our youth?"  Though it does not seem that there was any personal atonement according to Ford, what is the proper penitence for one apparent horrible action in your youth?  And the more serious question, was it truly only the one incident or will we see more allegations come forward?

Further, the allegations against Thomas went to sexual harassment; against Kavanaugh, sexual assault.  Surely that raises the stakes and the severity, but to what degree?  If the allegations are true, it would seem he deserves some punishment from the crime, but to what ends?  What would be enough?  Does blocking him from the Court satisfy the wrong or is there more that would need to be levied?  Would charges be brought and criminal penalty?

These are the kinds of questions now before the Committee and the public.  And it's further confirmation of why these confirmation proceedings are so important.  Why they should not be rushed.  Why all evidence from the person's record of communications to the letters received by the committee members regarding the nominee should be made available and reviewable by the committee in a timely fashion.  Why the hearing that is now before the committee will be the most important hearing of the entire process.

Evidence matters.