As soon as Christine Blasey Ford came forward as the woman accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her when both were in high school, it felt like we were hurtling toward something women in this country have wanted for decades: a chance to fix what had gone so horribly wrong during the disastrous Anita Hill hearings of 1991. Statements from Senate Republicans—among them Jeff Flake, Susan Collins, and Lindsey Graham—forced Senate Judiciary Committee Chairman Chuck Grassley to grant Ford a public hearing. Grassley sent invitations to both parties involved, and we waited.
Kavanaugh almost immediately expressed his willingness to participate, while also categorically denying that the event in question had ever happened. On Tuesday night, Ford’s lawyers released the letter they sent back to Grassley. It is neither a definitive acceptance or rejection of his invitation. Rather, it states that their client requests that, before she agrees to testify, her claims be investigated by the FBI. (This, as it happens, is the same move Sen. Dianne Feinstein requested last week before Ford stepped forward.) Republicans see this as nothing more than a stalling tactic. Graham tweeted on Wednesday that “an FBI investigation of a 36 year old allegation (without specific references to time or location) before Professor Ford will appear before the Judiciary Committee is not about finding the truth, but delaying the process till after the midterm elections.” Grassley has essentially affirmed that view, giving Ford a take-it-or-leave-it deadline of 10 a.m. on Friday to decide if she wants to participate in the hearing.
Given the stakes of this fight, it’s difficult to see these requests and counter-requests as anything but political maneuvering. But we should try to understand why Ford would want an independent investigation of her allegations—and what it means that it’s unlikely it will be granted.
First, it’s worthwhile to look back at the specific failures of the Hill hearings. Writing in the New York Times on Tuesday, Hill herself dispensed advice on “How to Get the Kavanaugh Hearings Right”:
Select a neutral investigative body with experience in sexual misconduct cases that will investigate the incident in question and present its findings to the committee. Outcomes in such investigations are more reliable and less likely to be perceived as tainted by partisanship. Senators must then rely on the investigators’ conclusions, along with advice from experts, to frame the questions they ask Judge Kavanaugh and Dr. Blasey. Again, the senators’ fact-finding roles must guide their behavior. The investigators’ report should frame the hearing, not politics or myths about sexual assault.
Who might this neutral investigator be? An op-ed published in the Washington Post on Wednesday made the case that local law enforcement in Maryland, where the alleged attack occurred, ought to investigate the complaint. But given that any investigation would need to coordinate with the nomination process, and given the extremely high-profile nature of the task, it seems preferable to task the country’s top law enforcement agency with the job. Indeed, Hill’s own allegations were investigated by the FBI before she was called to testify in front of the Senate Judiciary Committee. President George H. W. Bush directed the bureau to carry out that investigation in 1991, and President Donald Trump would need to do the same now. Trump, it seems, will not be making that request.
Speaking to reporters on Wednesday morning, the president justified the lack of an investigation by saying, “Well, it seems that the FBI doesn’t really do that. … They’ve investigated six times before, and it seems that they don’t do that.” We all know by this point that the president doesn’t know how the government works, so a reporter chimed in to note that the FBI could do it if the president directed it to, to which Trump replied that the senators are “doing a very good job.” Then, in a letter back to Ford’s lawyers that was released Wednesday morning, Grassley noted that the Senate has “no power to commandeer an Executive Branch agency into conducting our due diligence.” He followed that up with a letter to Democrats on the committee denying their request that the hearing be delayed until an independent investigation could be completed. Basically, this has turned into a game of sexual assault investigation hot potato, and given that the executive branch is currently led by a man who brags about assaulting women and the Senate is held by the party that’s enabled him, Ford’s request for an independent arbitrator will go unheeded.
As others have noted, it is incredible that a woman alleging sexual assault in 2018 has to fight to match the consideration Anita Hill received in 1991. Rather than course-correct for those hearings, it seems increasingly likely that this case will lower the bar. At the same time, it’s understandable to be skeptical that an independent investigation is so essential. If Kavanaugh isn’t going to be held criminally liable for his alleged actions—and he shouldn’t be—why does the FBI have to be involved? Won’t we find out the same information in a public hearing? Indeed, wouldn’t an immediate public hearing be preferable if the ultimate decision in this matter will be made by the U.S. Senate?
It is not, and the reason has nothing to do with politics. There’s a clear reason why Ford, who researches trauma as an academic, would hold on to her request for a neutral arbitrator. Survivors of sexual assault often experience trauma. As trauma therapist Betty Teng wrote in Slate in February, a traumatic experience can cause an unmooring from truth that requires substantial effort to rebuild. That is why we have the maxim “believe women,” which doesn’t mean we’re obligated to believe every single thing any woman says, but is instead a shorthand to remind us that vocalizing abuse is difficult and victims deserve to be heard when they do so.
Ford is clearly in trauma. This is, Dahlia Lithwick noted earlier this week, a fact that helps contextualize her decision not to come forward immediately. When she did choose to disclose her identity, the account Ford gave to the Washington Post was consistent with what we understand about how people process trauma. In the letter requesting the FBI investigation, Ford’s lawyers reference their desire to protect her mental health, writing that Ford is being asked to “relive this harrowing and traumatic incident” and concluding by requesting a meeting so the involved parties can “discuss reasonable steps as to how Dr. Ford can cooperate while also taking care of her own health and security.”
One of the challenges we’re all facing in the wake of #MeToo is how to balance the imperative to care for victims while still upholding our innocent-until-proven-guilty standard of criminal justice and our if-your-mother-says-she-loves-you-check-it-out standard of journalism. A commitment to fact-finding and verification is essential no matter how terrible the trauma—it is only by establishing a fair process for both the accuser and the accused that we can create a system that supports accusers and protects the rights of the accused. Our institutions, be they journalistic or jurisprudential ones, can’t be guided by the same principles that guide trauma therapists. They should, however, take our understanding of trauma into account. At the moment, they barely even attempt to do so.
Christine Blasey Ford has spoken up against an extremely powerful man who is at the center of an intensely bitter political fight. She has asked that, before she is questioned on live television by senators with inherently political interests, she be afforded the opportunity to tell her story to a neutral body that can assess it outside such a circus. She is not asking to be believed on principle. She is asking for a fair shot at neutrality. That it won’t be granted should tell you everything you need to know about how far we still have to go when it comes to adjudicating cases of sexual violence.
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