Kavanaugh And “Sexual Assault”

A little rationality.  Seems out of place, but still.

The first step in any case is to figure out whether, assuming everything a claimant is alleging is true, it adds up to anything legally cognizable.  Not deciding that it is true.  Assuming it for purposes of analysis.

This, by the way, is something the vast majority of people seem to be incapable of.  Indeed there are times it seems to us we are the only ones, and that we would make a fine benevolent dictator.

But moving on.

In New York – and apparently Maryland also, where the 36 year old event is alleged to have occurred – there is a critical and delicate element of a sexual abuse or assault charge that no one has mentioned, so far as we can tell.  In fact it seems to have been left out of the conversation in a lot of similar contexts where it also might be a crucial determining factor, because we are instructed that we must look at the events from the victim’s point of view, whereas historically we have looked at things from the accused’s point of view.  Not that this instruction has much to recommend it, at least in the criminal context.  We just note it.

In any case, the critical and delicate element we are referring to is the accused’s purpose in whatever physical contact took place.  And that purpose has to be his own, or the other person’s, “sexual gratification”.  This is what we call the mens rea of the offense.

Now.  Let’s look at how high schoolers can sometimes behave.  Remember ever getting “pantsed” in high school?  Remember wedgies?  Remember anyone being “dared” to do this or that?

Which of these categories seems the better fit for Christine Blasey Ford’s allegations:  a “sexual assault” with the required mens rea; or boorish high school football player conduct falling in the latter category?

We think the latter is the better fit.  We admit the former is a possibility on the most expansive interpretation of the facts Ford alleges, but we do not believe in judging people guilty of criminal conduct or even charging them based on a possibility.

But let us consider something else, to address a concern that in the end is misplaced but nevertheless has some prima facie relevance:  could Ford have experienced the incident as a sexual assault?

And the answer to that is yes, certainly she could have.  And there would be nothing wrong with her feeling that way at all.  But her experiencing it as a sexual assault does not make it a sexual assault objectively based on the elements of a criminal offense.

It doesn’t add up to criminal assault simpliciter, either.  That requires an injury.

Here’s what it does add up to, at least in New York:  Harassment 2nd, which is a “violation”; that is, a non-criminal but public offense.

It also adds up to a civil assault, an intentional tort, because any unwanted, intentional touching of any kind is a civil assault.  That would apply to wedgies and “pantsing”, too, not that we’re recommending litigation over such things.  We’re just noting that such things could be litigated because they are legally cognizable.

And note that in the civil context, the focus shifts to the state of mind of the accuser, not the accused.  “Believe the victim” is perfectly appropriate in the civil context.

But people have no faith in litigating civil wrongs on their own behalf.  Seems they want the police, and through them and the criminal justice system the public, to validate their injury.  An FBI investigation, too?  That’s the “gold standard”.  We are not making this up.

Note well, please.  We performed our analysis based on the assumption that all of Ford’s allegations were true.  We do not say that they are true.  And we do not say that they are not true.  Like a court considering a case, we do not reach that question because we don’t have to reach it in order to resolve the dispute.  And we can resolve the dispute only one way:  based on the evidence, viewed in the light most favorable to the accuser, Judge Kavanaugh did not sexually assault Ms. Ford.  There is nothing for the FBI to investigate.

Throw in that this is something alleged to have happened about 36 years ago.  Throw in that we’re talking about minors at the time.

Conclusion:  someone – and probably many – in the chain of events whereby this became an embarrassing public spectacle has been extremely irresponsible.  If we are representing Ms. Ford our advice before this all blows up is:

“However traumatic you may have found this incident, it is fundamentally a civil matter and the time to do something about that is long past.  At this point bringing this accusation will bring nothing but grief to both you and the man you accuse, and your family and his, although of course the brouhaha may be of great value to political partisans.  But I advise you not to accept a ride on that tiger’s back.”

Politics ain’t beanbag, but there really should be limits.  Decency, at least.  We often don’t realize how far astray we’ve gone until long after the dust settles.  It’s unfortunate:


By the way, that’s the late Roy Cohn in some of the footage.  Cohn was notorious in many ways both good and bad, but he is noteworthy today more for his association with Donald Trump than his halcyon days with McCarthy’s HUAC





1 Comment

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One response to “Kavanaugh And “Sexual Assault”

  1. Except that there were reasons. Most women are labeled sluts and whores and not only did she start making the claims 5 years ago she first made the claim before he was even nominated. Brett also told other kids (saying he was a virgin when his own yearbook paints him as a douchebag fratboy) and by all accounts the investigation was a white wash.

    Brett’s an attempted rapist with no business on any court


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