Briefly, On “She Should Have Reported It!”

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Sam Wilkinson

According to a faithful reader, I'm Ordinary Times's "least thoughtful writer." So I've got that going for me, which is nice.

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  1. Avatar Mike Dwyer
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    says:

    I don’t disagree with any of the points in this post. Obviously the president is a moron and his defense is laughable. With that said though, the one question I would ask the accuser is this: “Judge Kavanaugh has been hired, promoted and selected for a number of high-profile jobs over the years and this is the first time we are hearing about this. What changed?”

    I’m not going to guess whether she is or isn’t telling the truth, but this is also not as simple as her suddenly deciding it was time to confront her attacker.Report

    • Avatar Fish in reply to Mike Dwyer
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      says:

      That’s not a compelling question for me, honestly. Think about how difficult it was to keep track of the people you went to high school with before the internet and social media. Heck, my high school probably had less than 400 people in it and I lost track of 99% of them (even people I considered friends) before the internet came along and made it easy to get back in touch with them. I wouldn’t be surprised to learn that she hadn’t heard Kavanaugh’s name until he popped up on the national stage as a nominee.

      On the other hand, perhaps she knew all about the state of his career and decided that his being offered a seat on the highest court was a compelling-enough reason to come forward. But I’m also cynical enough to recognize that her name might have come up in a net cast by Democrats looking to find dirt on Kavanaugh.Report

    • Avatar Jesse in reply to Mike Dwyer
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      says:

      Here’s the thing – I’m a politically plugged in guy. I pay way too much attention to these sorts of things, as is the case of being on this website. But, I didn’t know who Kavanaugh was until he came up on Trump’s short list.

      Kavanaugh has had plenty of well paid and important jobs in his career, but I wouldn’t call any of them particularly high profile. The truth is, a random Circuit Court judge isn’t high profile to anybody outside of actual lawyers.Report

      • Avatar Mike Dwyer in reply to Jesse
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        says:

        Social media makes it pretty easy to keep tabs on people, plus Kavanaugh still lives in roughly the same area. So, it seems like if something like this really happened, she might have kept tabs on him. With that said, I’m already engaging in more speculation than I feel comfortable with. That’s why I hope someone will ask the question to her directly.Report

        • Avatar dragonfrog in reply to Mike Dwyer
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          says:

          I suppose she might have. Personally, I think if I were a victim of serious abuse, I’d be working pretty hard on moving my life forward, away from that time, specifically avoiding actions and patterns that bring me back to thinking about my abuser. Actions and patterns like deliberately setting out to keep tabs on his present employment and residence.Report

    • Avatar bookdragon in reply to Mike Dwyer
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      says:

      Has it occurred to anyone that what happened between his last major appointment and this is the Me Too movement?

      To me it seems obvious that one very large factor is the fact the women are now actually being taken seriously rather than routinely dismissed and/or slug shamed for speaking up. Look at how many are only in the last couple years finding enough support and change in societal reaction to begin to have the courage to risk coming forward.Report

  2. Avatar George Turner
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    says:

    She not only didn’t report the attack to police, she didn’t even report it to her friends.

    I’m not sure what she could’ve charged the attacker with. According to Alan Dershowitz, what she related is not attempted rape under Maryland law, which requries an actual attempt to penetrate. First or second degree assault wouldn’t apply either, as there was no attempt to cause physical injuries. First, second, third, and fourth degree sexual assault are also out.

    Although the state bans oral sex (max sentence is 10 years), wrestling is apparently not prohibited.Report

    • Avatar Michael Cain in reply to George Turner
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      says:

      So attempting to forcibly remove someone’s clothing against their wishes is not a crime in Maryland?Report

      • Avatar George Turner in reply to Michael Cain
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        says:

        Apparently not, or at least I couldn’t find it. It might be one of those things where the police just tell you to go home.

        And of course another defense would be if the attacker says he was trying to get her to go into the pool. I’ve heard that she said she had a one piece bathing suit on underneath her outer wear. Given what she’s already related, that the attack stopped when one guy tackled the other guy off of her, and then they started laughing about it, that alone would provide reasonable doubt, casting the incident as nothing more than drunken horseplay.

        You don’t get to send people to jail for what you think they might eventually do, otherwise everyone would be in prison. The law has lines that a person has to cross to meet the standards for a particular charge, and often these are only crossed as a situation escalates.

        And of course if Ed Whelan is right, which is a fair bet given that he identified a classmate with a house near where she described, one she was photographed partying at, we’ve got the wrong set of defendants anyway.Report

      • Avatar InMD in reply to Michael Cain
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        says:

        George, it pains me to say this but you’re making people stupider. If it happened as she said it did this would fall under Maryland’s assault statute which encompasses battery (there are multiple that might apply), false imprisonment, and possibly fall under the sexual offenses (these encompass varying degrees of what might be called sexual battery but not rape which still follows a common law definition, though you might be able argue attempted rape). I’m not sure what exactly was on the books in 1982 regarding the sex offenses but, again, assuming her facts, you could be looking at at least a few misdemeanours.Report

        • Avatar George Turner in reply to InMD
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          says:

          Even had she called the police, nothing would’ve happened. As for assault, in 1993 50% of 9th graders reported being in an actual fight (with fists and everything!) Long before you’d get her “pinned” case before the judge, you’d be putting about 25% of 9th graders in prison for first or second degree assault.

          Maryland law won’t get you into sex offenses until there’s actual sex of some sort or another, with “attempted” refering to actually trying to put tab A somewhere or other. None of that happened in her case.Report

          • Avatar InMD in reply to George Turner
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            says:

            I can’t believe I’m doing this.

            Md Crim 3-203 prohibits assault in the second degree but doesn’t define it because Maryland still follows the common law (judge-made law). Assault means putting another reasonably in fear of a battery. The statute is also interpreted to encompass battery which is also a common law crime in Maryland. Battery means a beating and includes “unlawful force used against a person of another, no matter how slight.” see State v. Duckett. Epps v. State is particularly instructive where it says battery includes “kissing without consent, touching or tapping, jostling, and throwing water upon another.” ?

            False imprisonment is also a misdemeanor under Maryland common law (there is no statute but state’s attorneys will prosecute it and the courts will enforce it). False imprisonment means the unlawful confinement of another by force or threat of force, like in a bedroom.

            The leading case on all of these is Lamb v. State which you can read in its entirety here. The court goes into detail on each offense and how Maryland courts interpret them.

            Additionally actual sex or attempted sex is not required for a crime. For example see Md Crim 3 -307 which prohibits sex offenses in the third degree. Among other things, a person may not ‘engage in sexual contact with another without the consent of the other; and…threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping.’

            I don’t know when the sex offenses section was enacted and I don’t feel like digging into it. Maybe 3-307 wasn’t on the books in the early 80s but assault, battery, and false imprisonment have been crimes since Maryland was a colony. Maybe the police would’ve used their discretion not to arrest and/or maybe the state’s attorney would have used his discretion not to charge. But facts like this, assuming accuracy, would amount to criminal conduct.Report

            • Avatar George Turner in reply to InMD
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              says:

              How many hours or days was she falsely imprisoned? What? About a minute? Half the people trying to get home after a Ravens game are pinned in longer than that.

              As for assault, your liink says “The cognate noun “assailant,” moreover, designating the assaulting criminal agent, embraces with equal certainty 1) one who attempts to beat, 2) one who only threatens to beat, 3) one who actually beats, and 4) one who both attempts to beat and then beats.

              There was no beating or attempted beating.

              Further down, the court says “an intent to injure is required for an attempted battery.”

              There was no attempt to injure.

              And C), A Threatening of an Immenent Battery, requires “intent to cause a reasonable apprehension of immediate bodily harm” That was likewise absent in what Ford alleges.

              Your link goes on into detail on the two meanings of assault, and both require intent, either to cause harm or to frighten. Both those elements are absent.

              If there was actual intent, the attacker wouldn’t have let her wander off when he got distracted by yet more drunken horseplay at a high-school party.

              And of course Ford would have to prove her case beyond a reasonable doubt, without any physical evidence, and without any witnesses, and without any evidence at all. We’re just supposed to take her word for it.Report

              • Avatar Sam Wilkinson in reply to George Turner
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                says:

                @george-turner I admire your commitment to posting utterly contemptible bullshit designed specifically to minimize what victims are telling you they experienced. It speaks volumes about who you are as a human being.Report

              • Avatar pillsy in reply to George Turner
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                says:

                How many hours or days was she falsely imprisoned? What? About a minute? Half the people trying to get home after a Ravens game are pinned in longer than that.

                What the literal fuck is wrong with you?Report

              • Avatar LeeEsq in reply to pillsy
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                says:

                Political tribalism and misogyny of the highest order.Report

              • Avatar George Turner in reply to George Turner
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                says:

                Well, as an actual victim of sexual assault, and a victim of a false accusation of sexual assault (kidnapping, rape, attempted murder), it shows me that you folks don’t care one tiny bit about such things. It’s all political tribalism.

                The accused has recourse to a defense, and any defense attorney who couldn’t successfully defend this case isn’t a very good attorney. There is an unsubstantiated charge of something would be hard to establish as a crime. If Kavanaugh is guilty of assault, wouldn’t Judge be guilty of assault for tackling Kavanaugh? By the standards you want, you’d be looking at several criminal cases per average high school party.

                Obviously courts don’t use those standards or more people would be going to jail than going to college.

                And of course what you’re pursuing would’ve been a juvenile crime and already purged from his record.Report

              • Avatar Will Truman in reply to George Turner
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                says:

                George, you can contest the veracity of the accusation, or the illegality of it, but going forward not going to contest the severity. If you went through a similar trauma and approach it differently, good for you. But in order to proceed, for the sake of this conversation, you’re going to need to stipulate that the accusation here, if true, is not morally ambiguous or behavior that should be socially tolerated.Report

              • Avatar George Turner in reply to Will Truman
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                says:

                Heck, the girl who accused me told the police that I’d had her tied to a chair for three days with a rifle pointed at her head. She got a restraining order that meant I had to move from where I’d lived for two years.

                And the next time I saw her, a few weeks later, she ran right up to me, gave me a hug, said she still adored me, and apologized profusely. By the standards being demanded by Ford’s supporters, I would still be in prison for something that she just made up on the spot because she tought it was exciting.

                I’ve also been tackled and pinned by a girl who simply out wrestled me. I’ve been pinned by two girls in a hall who groped me. I didn’t like it, but I’m not going to hunt them down thirty years later and try to destroy their lives.

                People who are drinking do all kinds of very forward things. They often cross the line. But the law doesn’t assume that they’re going to cross a whole bunch more lines that they didn’t cross. Ford may have thought Kavanaugh was going to steal her car, too, but he can’t be charged with attempted auto theft because of what she thought.

                Assume the whole incident was recorded on the home security system in the house, and that the prosecutor, police, and defense attorney all have the tape. The prosecution still has to prove an assault case (attempted rape is out of the question) beyond a reasonable doubt, with the defense attorney putting on a top-notch defense. Would a jury convict?Report

              • Avatar Will Truman in reply to George Turner
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                says:

                I’m sorry if some of these things have happened to you, but we’re not going to use that to shrug off how others respond to it happening with them.

                The legal arguments are fine.Report

              • Avatar George Turner in reply to Will Truman
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                says:

                I’m just hoping people here realize that “To Kill a Mockingbird” was a warning, not a how-to book.

                If we always assume the woman was telling the truth, and demonize anyone who dares question her story, and insist on denying due process to the accused, then we have the same lynching environment that Democrats claim they’ve put behind them, using the same emotional arguments and ginning up the same outrage.

                In prior days it just got a lot of innocent men murdered by mobs.

                That’s why we step back and allow due process, as uncomfortable as it might seem to the victim.Report

              • Avatar greginak in reply to George Turner
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                says:

                Due process like having the FBI do an investigation and bring all the possible witnesses to congress even if delays a vote by a week. Maybe someone should suggest that.Report

              • Avatar pillsy in reply to greginak
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                says:

                Don’t you understand how terrible it is to, um, not rush to judgment?Report

              • Avatar Will Truman in reply to George Turner
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                says:

                Due process arguments are fine. You’ve gone beyond that. Stick to due process arguments.Report

              • Avatar pillsy in reply to Will Truman
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                says:

                Why aren’t you banning or at least suspending him?

                He’s been doing exactly the sort of DMZ thing you talked about a few weeks back for ages, and just keeps posting vile garbage.Report

              • Avatar Will Truman in reply to pillsy
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                says:

                It’s under consideration.Report

              • Avatar Mike Dwyer in reply to pillsy
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                says:

                Rather than putting all the responsibility on Will to Nerf everyone’s experience on the site, my suggestion is it that if people feel so strongly about George’s comments, be grown ups and ignore them or ignore the worst parts and respond to the points he is trying to make.Report

              • Avatar pillsy in reply to Mike Dwyer
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                says:

                And if I say that I think George should shut up and stop being a grievous fuckstick, do you agree that Will shouldn’t Nerf the site and people should just ignore it if they don’t like it?Report

              • Avatar Mike Dwyer in reply to pillsy
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                says:

                Several of the commenters have already used that kind of language in this thread and those comments are still posted. Those comments tell me just as much about the people making them as George’s do about him.Report

              • Avatar pillsy in reply to Mike Dwyer
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                says:

                Yeah let’s go back to the expectation is that Leftwards members of the site maintain the highest standards of civility while Trump supporters are free to say whatever the hell they feel like..

                That was so awesome with notme and Art Deco and dand. Can’t wait to get back to that sort of commenting culture.Report

              • Avatar Mike Dwyer in reply to pillsy
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                says:

                Let me be more clear here: I personally have no problem with the language either side is using. Frankly, this site has never really been civil. We’re just good at hiding behind nice language and being supervised by the hall monitors. It’s really just passive aggressive theater IMO. I’m fully onboard with a everyone taking the gloves off and seeing what that looks like (I’d also love it even more if everyone had to post under their actual name, but I can’t have everything I want.)

                I believe that George is attempting to make well-reasoned points, even if a lot of people disagree with him. Everyone is also free to make assumptions about what kind of person he is based on those comments. If that also makes the liberals so mad that they can only express themselves a certain way, then let’s see that. At least it is real and so long as no one is actually making threats, you won’t see any interference from me.Report

              • Avatar Mike Dwyer in reply to Mike Dwyer
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                says:

                Just wanted to add, my comments above are from Mike Dwyer commentator, not Mike Dwyer associate editor. I’m not speaking for the site here.Report

              • Avatar Maribou in reply to Mike Dwyer
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                says:

                And speaking as maribou, commentator, I continue to think this attitude (which is hardly unique to Mike) is the number one reason why people who instead actively prefer civil conversation (which can have an infinitude of reasons other than passive-aggressivity) wander away from the site or stop commenting.

                So you end up with comment sections dominated by those who are willing to be assholes in their comments.
                Which, to be frank, you can find anywhere on the Internet.

                It takes away from what’s special about the site. Not least because writers who prefer any comment style other than brawling find somewhere else to be.Report

              • Avatar Mike Dwyer in reply to Maribou
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                says:

                I will also say I’m much more tolerant of shitty language prior to election day. The day after, I like to get back on track.Report

              • Avatar Mike Dwyer in reply to Maribou
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                says:

                Again, I think there’s a lot of passive-aggressive stuff that happens here and we pretend it’s civil discourse.Report

              • Avatar Will Truman in reply to pillsy
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                says:

                People have been. Which is more or less the same pattern we ran into with NotMe. This isn’t as sustainable just as that wasn’t, though here I am considering more options (whereas with NotMe I felt stuck).

                Hopefully soon I will have a panel to help me with these decisions, but one thing at a time.Report

              • Avatar Mike Dwyer in reply to George Turner
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                says:

                “If we always assume the woman was telling the truth, and demonize anyone who dares question her story, and insist on denying due process to the accused, then we have the same lynching environment that Democrats claim they’ve put behind them, using the same emotional arguments and ginning up the same outrage.”

                This. I think the Left has decided that men are going to have to pay reparations for a while. No assumption of innocence, no due process. You get accused, you are guilty. Paying for the sins of our fathers.Report

              • Avatar pillsy in reply to Mike Dwyer
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                says:

                Unlike the Right, which is utterly devoid of high profile commentators and officials who have decided that Ford is a malicious liar based on absolutely no evidence.Report

              • Avatar Mike Dwyer in reply to pillsy
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                says:

                If we’re talking about the assumption of innocence, I usually err on the side of the accused. With that said, bad on any conservatives that are behaving the same way. I don’t think either side’s behavior is justified as a two wrongs make a right scenario.Report

              • Avatar pillsy in reply to Mike Dwyer
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                says:

                It’s one (proper) thing to err on the side of the accused.

                It’s quite another to baselessly suggest that the accuser is a malicious liar.Report

              • Avatar Mike Dwyer in reply to pillsy
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                says:

                Sure, both are pretty douchey moves. Again, two wrongs don’t make a right. I really don’t have a dog in this fight. He’s going to get confirmed either way, and I’m really just kind of disgusted by the whole process.Report

              • Avatar rexknobus in reply to Mike Dwyer
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                says:

                It’s troublesome in these highly politicized circuses…

                Like Mr. Dwyer, in matters of presumption of innocence, I too usually err on the side of the accused. That started out to be Judge K. But now, with the steaming back-and-forth, Prof. Blasey Ford has also been accused — not just revealed to the public eye, but accused — of crimes and falsehoods. Now she gets the presumption as well. Yes, that is confusing, maybe tough to deal with. What we need is a serious body of calm, rational, intelligent minds to investigate and discuss. Hmmmmm…

                Yup. Let’s keep funding SETI.Report

              • Avatar greginak in reply to Mike Dwyer
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                says:

                No. It is very possible to question her without accusing her of lying or being a Resistance tool.

                Due process: bring all the witnesses to congress and let the FBI look into it. That is due process for a job interview.Report

              • Avatar George Turner in reply to greginak
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                says:

                She won’t allow a male lawyer to be in the room when she testifies. She won’t allow the person she’s accusing to be in the room when she testifies. She demanded that she testify after the accused (a demand that Chuck Grassley denied it would upend centuries of due-process).

                I suppose she thinks she gets special legal protections because she’s a rich elite white woman, and that people she accuses should have no right to properly defend themselves.

                Well that’s not going to fly. Other women stand and deliver in court all the time. Minority women don’t get all these special privileges. They don’t demand that the court treat them like a minor child.

                And of course there’s the long, sad tale of “recovered memory” cases and mass-panic over things like the Texas group of Satan worshipping child molesters.

                Books like “To Kill a Mockingbird” and “The Crucible” aren’t books about how stupid we were back then when we form outraged mobs seeking “justice”. They’re books about how stupid we are now when we fall into that trap. Both books apply to these hearings.Report

              • Avatar Chip Daniels in reply to George Turner
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                says:

                Be it resolved:

                All government employees have a right to promotion to lifetime tenure, unless it can be proven in a court of law that they are unfit.Report

              • Avatar Mike Schilling in reply to George Turner
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                says:

                This isn’t a recovered memory case, and you know that perfectly well. If you’re going to tell fucking lies don’t whine when you’re treated like a fucking liar.Report

              • Avatar Sam Wilkinson in reply to George Turner
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                @george-turner there’s also thousands counter examples of officials refusing to investigate, of officials siding with abusers, of officials sanctioning more abuse, all in service of protecting abusive men from consequences. At a certain point, that has to matter. Not to you obviously – you’re obviously willing to sacrifice victims so that certain men continue to enjoy consequence-free lives – but for some people are willing to acknowledge that maybe our justice system isn’t half that it’s cracked up to be.Report

              • Avatar Mike Schilling in reply to Mike Dwyer
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                says:

                The Left* on this site has been asking for an investigation and no vote until it’s complete. That is due process.

                * That is, liberal Democrats. I suppose in the Age of Trump there’s no difference between us and the Khmer Rouge.Report

              • Avatar Dark Matter in reply to Mike Schilling
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                says:

                The Left* on this site has been asking for an investigation and no vote until it’s complete. That is due process.

                The Left has had 3 months. You don’t get to complain about homework due in a week if all the details were assigned months ago.

                Speaking of investigation, the 3rd witness has come out and said she has no clue what Ford is talking about. Significantly this one is her lifelong friend and ally.

                Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.

                https://www.nationalreview.com/corner/third-named-witness-rejects-kavanaughs-accusers-allegations/

                This is looking more and more like political manipulation and less and less like a thing.Report

              • Avatar greginak in reply to Dark Matter
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                says:

                You can question her story without suggesting it’s all a political hit job. Lord knows this deal has brought out every partisan tension. But this gets at the heart of problems people see about the treatment of people who report sex crimes. You don’t have to attack her motives or suggest she would do this kind of thing just for partisanship.

                Oh and Keyser has already said she believes Ford. Which doesn’t prove anything either way.Report

              • Avatar Koz in reply to greginak
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                says:

                You can question her story without suggesting it’s all a political hit job. Lord knows this deal has brought out every partisan tension. But this gets at the heart of problems people see about the treatment of people who report sex crimes.

                This is not a sex crime or even a partisan hit job (at least as it pertains to Ford). This is an attempted revenge for a social humiliation. There may be a sexual angle involved, but it’s less important and it’s not what’s been described so far.Report

              • Avatar greginak in reply to Koz
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                says:

                social humiliation? What the heck is that supposed to be about? As Ford tells the story, it is a sex crime. You don’t have to believer her, but that is what it is.Report

              • Avatar Koz in reply to greginak
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                says:

                That’s the part she’s lying about. In fact, ever since last week at this time when her name first surfaced, it’s become more and more clear that she’s lying.

                See this.Report

              • Avatar Dark Matter in reply to greginak
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                says:

                You can question her story without suggesting it’s all a political hit job.

                It’s a mistake to ignore the politics and emotion of all of this. Kennedy’s seat means we’re in Family Court territory with two parents fighting over their kids. The politics of this is why anyone is paying attention to a case this thin. As her narrative becomes less and less likely to pass even a basic sanity test (her own witnesses can’t support her), liberal support for her position does not shrink. So this is absolutely a political hit job regardless of what happened 36 years ago.

                She is strongly motivated to spin this as nasty as possible because of Kennedy’s seat.

                She’s also the cause of this total lack of data. We’ve one page of documentation that she picked. She didn’t tell anyone, she didn’t write anything down, she’s the only player involved who has any memories of it. It’s possible the drunk and scared 15 year old misunderstood just how far the very drunk 17 year olds were going to go, that she didn’t so much escape as they let her leave. It’s possible her memories are simply wrong where they’re not missing. We’re past the point where we should be expecting anything like accuracy and we can’t even rule out simple whole cloth fabrication.

                We have no way to evaluate this, but at some point absence of evidence becomes evidence of absence.

                A guy who is willing to organize a gang rape because he has the opportunity doesn’t go through life with that as his only sex crime. However other than this information-free accusation we’ve got nothing.

                Family Court is the evil red-headed step child of the court system because of the emotional voltage. There’s no way an accusation this thin would be used to determine who gets custody of the children, and it being presented this late in the game when the other side is clearly winning makes it less likely to be important, not more.

                Afaict this isn’t about what happened 36 years ago for anyone, including her. This is about preventing Trump from picking Kennedy’s replacement.Report

              • Avatar Mike Schilling in reply to Dark Matter
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                says:

                She’s telling the truth? Obviously a deep-seated conspiracy.Report

              • Avatar InMD in reply to George Turner
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                says:

                Dude. I’m not telling you he’d get life plus cancer on these allegations. I’m telling you, contra your original comment, that her story would be enough to merit an investigation and there are relevant laws. Where it went from there is anyone’s guess and since she waited to say anything until an investigation is basically impossible we’ll never know.Report

  3. Avatar Michael Drew
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    says:

    The one question I have is this.

    What is the purpose for which Prof. Blasey now wants a law enforcement (indeed FBI) investigation of this incident? Is it to gather information in anticipation of a prosecution of the person who assaulted her? Or is it because she believes that it is relevant to the question of whether Kavanaugh should be confirmed to the Supreme Court?

    If now is the moment when Prof. Blasey has decided that she wants to pursue criminal (or civil!) accountability for her assailant, then by all means she should call for an investigation. There are apparently no time limitations on sexual assault charges in Maryland.

    But if Prof. Blasey is merely seeking to cause her experience to affect whether Kavanaugh gets confirmed, then it seems to me that it is up to the body charged under the constitution with weighing that question – the U.S. Senate, which for the moment has delegated the question to its Judiciary Committee – to decide what resources should go into investigating questions relevant to the confirmation or rejection. And right now, Democrats on the committee are fighting hard for the FBI investigation Prof. Blasey wants.

    I’m not sure a lot is added by her demanding the investigation, nor am I sure she is in a correct position to do so if she is not seeking it as part of seeking prosecution or damages against her assailant.Report

    • Avatar Pinky in reply to Michael Drew
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      says:

      The individual’s capacity to initiate an FBI investigation is one of our most cherished rights. You know who doesn’t believe in that? Radical unitary-executive types.Report

      • Avatar Michael Drew in reply to Pinky
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        says:

        ?

        I mean, freedom of speech is our most cherished right, and she is obviously within that right to be asking for an investigation; I’m not saying otherwise. Beyond that I really don’t know what you are referring to. She certainly *can* ask for it; I’m just mildly questioning if it’s exactly her place to do it if she’s not seeking enforcement of a law against a perpetrator who victimized her.

        In point of fact, I don’t believe an individual has *any capacity whatsoever* to initiate an FBI investigation on his own, when it comes to it, certainly when not reporting a crime the requires law enforcement action.Report

    • Avatar Morat20 in reply to Michael Drew
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      says:

      What is the purpose for which Prof. Blasey now wants a law enforcement (indeed FBI) investigation of this incident?

      I would imagine so that there is more to it than “he said, she said”. It doesn’t take the FBI very long (a few days, tops) to run down a handful of people and ask them what they remember, and it’s certainly faster (and cheaper) than Congress subpoening them all to testify.

      So asking that the FBI simply track down a handful of people and ask them what, if anything, they remember and then submit it to Congress means there’s a neutral investigatory body that has at least collected relevant testimony and any available facts.

      And hey, it’s actually part of the FBI’s job — you know, background checks is kinda part of their thing. And they do indeed run down issues like this if they crop up.Report

      • Avatar Michael Drew in reply to Morat20
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        says:

        While I’m very fuzzy on the parameters and history of the use of the FBI for assessing the fitness of federal judicial nominees, you are right that it is clearly standard practice at least as an initial matter at this point. (People nominated to national security posts and other posts requiring security clearances, it seems to me there is a much clearer reason for.) How it got to be that way I am less clear on. Why exactly is it that it is now routine that the FBI is involved in vetting each of a presidential administration’s nominees for the federal bench is something I would be interested in finding a good, short explainer on.

        Beyond that, exactly when, outside of federal judicial confirmation hearings and national security posts, and on whose instantiation, it is the FBI’s job to run down issues “like this,” I am also not clear on. By no means am I arguing that it would be inappropriate that they would be engaged in it, whenever the correct process for causing them to do so is completed.

        I am just saying that to the extent Ms Balsey’s has any authority above whatever we each as citizens have to opine that there should be an FBI investigation, it must stem from the fact of her victimization allegedly by Judge Kavanaugh, but that such a request, again to be deemed to have higher status than what you or I might make, would need to come in the form of an actual report of a crime, potentially to seek law enforcement action against the accused. If she is seeking the investigation only as it related to Kavanaugh’s fitness for the bench, then it seems to me it is primarily the Committee’s prerogative to decide whether in their view an FBI investigation is needed, and if I am not mistaken, ultimately the Department of Justice’s, and perhaps ultimately the White House’s, job to decide whether one will ultimately be ordered. Any of us can as citizens say that her case should be investigated by the FBI pursuant to the question of Kavanaugh’s nomination (but not possible criminal prosecution), and she can as well, but she does so in the same capacity that any of the rest of su do in that case – unless she is also doing it as the victim of a crime seeking a law enforcement response.Report

        • Avatar Morat20 in reply to Michael Drew
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          says:

          While I’m very fuzzy on the parameters and history of the use of the FBI for assessing the fitness of federal judicial nominees, you are right that it is clearly standard practice at least as an initial matter at this point.

          Well, the FBI is involved in standard government background checks for anyone. Political appointees can’t technically fail a background check (it’s up to the Senate to decide whether they can have the job, or the WH directly if it’s not a position that requires confirmation), they still do them so the Senate or WH has that information, and they’ll certainly do them if asked.

          As to your last paragraph: Yes, Ford can only ask the government to do it — actually doing it requires the WH to do so. Which they, strangely, don’t want to do — even though they’re very, very certain would of course totally clear Kavanaugh and only take a few days.

          Effectively, it’s a specific background check, which — since it’s not the standard used for all government employees — requires someone to authorize it.Report

      • Avatar Dark Matter in reply to Morat20
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        says:

        I would imagine so that there is more to it than “he said, she said”. It doesn’t take the FBI very long (a few days, tops) to run down a handful of people and ask them what they remember…

        The media chased down that twitter gal and her claims even quicker.

        My assumption is they’re also chasing down basically everyone they can.Report

        • Avatar Morat20 in reply to Dark Matter
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          says:

          Yes, but to be blunt, people are less likely to lie to the FBI, the FBI has considerably more resources, and the FBI is likely to be considered far more impartial, especially if all they’re doing is effectively taking a dozen witness statements under the rubric of “You know lying to us is a crime, right?Report

          • Avatar Mike Dwyer in reply to Morat20
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            says:

            I have recently been listening to the Stranglers broadcast which is about the Boston Strangler murders in the 1960s. About 4 years ago they finally had enough DNA evidence to link DeSalvo to one of the 13 murders he originally confessed to. As I have been following the case via the podcasts, they keep making the same points about how unreliable witnesses are. Also how unreliable confessions are (one comment from a police detective is that they make police departments ‘lazy’). Even with DNA, the first time they tried testing in the DeSalvo case, it came back negative. It was only after technological improvements and finding an additional source of DNA in the physical evidence were they finally able to make a match.

            All.of this is to say that yes, maybe a high schooler assaulted a girl at a party, so he should be disqualified from certain jobs with political repurcussions (?) but we will NEVER prove this and it’s he said/she said. The sheer number of people who are lining up to say they believe her based on…I have no idea…is further proof this whole thing is theater. So yeah, let’s continue to debate the merits of a case we really know nothing about, and never really will, because sure that seems productive.Report

            • Avatar greginak in reply to Mike Dwyer
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              says:

              I wish people knew more about how unreliable eyewitness testimony can be. The strong law enforcement people would not like how that plays in many many cases. However it is different situation when a person is talking about someone they know. That is different from eyewitness testimony involving all unknown people. Identifying one of a dozen random people is different from saying it was Phil, that guy i’ve met before.Report

            • Avatar Morat20 in reply to Mike Dwyer
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              says:

              I don’t think I could pick a random stranger I saw briefly out of a lineup.

              Pretty sure I could pick out a someone I knew.

              I’d worry about my reliability at recognizing a face I saw from 15 or 20 feet away, in uncertain lighting. I’d not worry about recognizing my friend when he was five inches away.

              So yeah — eyewitness seeing a stranger at 10 or 15 feet away in bad lighting? I can see how that can be quite unreliable. But seeing someone you know a foot away? That’s…a different story.

              Comparing apples to oranges, so you can wave away a rape claim with “Well, it could be anyone, how can we know?”.

              Indeed. Why bother with courts, trials, or anything like that? Goodness, how can we know anything?.Report

              • Avatar Mike Dwyer in reply to Morat20
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                says:

                It’s not just about picking the right person out of a lineup. It’s also about remembering the facts correctly. I would hate to be pressed to remember specific details about a fight I got in when I was in high school. Who swung first? Did I punch him in the nuts? What was said before the fight? Who freakin knows? That’s where physical evidence is much, much better. I trust signs far more than I trust someone’s memory, there are subjective opinion about events, or what we define as assault today versus 30 years ago.Report

              • Avatar Morat20 in reply to Mike Dwyer
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                says:

                So, just to be clear, after admitting (at least by shifting the subject to “Who can be really sure what happened” from “Who can be really sure it was that guy”) that “Yeah, okay, maybe eyewitness identification of someone you know right up in your face is a bit more reliable than I indicated” you pivoted to:

                1. Equating it to a fist fight in terms of “memorability”.
                2. Talking about how it’s hard to remember who hit first, or who was provoking who, in your analogy.
                3. And “man, we define assault so differently these days”.

                Applied to rape we get:

                1. “Look, it was just a little attempted rape. No big deal,
                2. Maybe she was asking for it, maybe she was dressed provocatively or something. Maybe she got cold fee. Maybe a little regret from being such a tease. Maybe he was provoked? Who knows, right?
                3.Plus, it was more okay to like try to rape people back then. Guys didn’t know better. So it’s pretty cool, we really shouldn’t hold that bit of attempted rape against him.

                You started with “Well eyewitnesses aren’t reliable”, and when pointed out that “Recognizing people you already know five inches away” is totally different, you segue into straight up rape apologetics hidden by a really shitty metaphor equating attempted rape to a schoolyard fight.

                WTF, dude.Report

              • Avatar Mike Dwyer in reply to Morat20
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                says:

                1. “Look, it was just a little attempted rape. No big deal,
                2. Maybe she was asking for it, maybe she was dressed provocatively or something. Maybe she got cold fee. Maybe a little regret from being such a tease. Maybe he was provoked? Who knows, right?

                No – that’s a conversation you had with yourself apparently. The point I was making is that memories are faulty, especially when people have been drinking, or any number of other factors. Vox has a really good summation of what is known so far. These items are applicable here:

                – Ford admits that there are key details about the incident that she does not remember.

                – She believes the incident took place when she was 15, in the early 1980s — but she’s not clear on the exact ownership and location of the house. She also says that everyone at the party had at least one beer, but notes that Kavanaugh and a classmate named Mark Judge had been drinking more heavily.

                There were also three people in the room and the other guy says nothing happened. So again, this will come down to a he-said/she-said. Both sides have lots of women lined up defending them. All the parties involved were minors and drinking. By her own admission there was no rape, and nothing reported, so there is no physical evidence. So I have to ask, where do you think this is actually going to go?

                And yes, I would compare it to a fight. I’ve been jumped before with no warning. I can remember some details vividly and others are very unclear. That’s the way traumatic experiences work. We’re dealing with a ton of uncertainty here but because of POLITICS everyone is wading into the conversation. It’s ridiculous. The Left is being played by Feinstein. The Right is being played by claiming assumed innocence when they don’t offer it themselves in other cases. Seriously, everyone in this process is a jackass, myself included for participating in the very speculation I am complaining about. But hey, Sam’s posts do bring out the best in all of us…right?Report

              • Avatar Zac Black in reply to Mike Dwyer
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                says:

                Mike Dwyer But hey, Sam’s posts do bring out the best in all of us…right?

                They’re certainly revealing.Report

              • Avatar Mike Dwyer in reply to Zac Black
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                says:

                I’m fairly sure Sam intends most of his posts to be litmus tests for the commentariat, so in that sense, you are correct.Report

  4. Avatar dragonfrog
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    says:

    If I were to attribute 4-dimensional chess to Trump, I would say that he’s using his reliable ranting old man trick to distract us from something that really should disqualify Kavanaugh from the supreme court even if you disbelieve Ford’s accusation: Kavanaugh very probably colluded with Whelan to dox his innocent high school compatriot, endangering the man’s livelihood, relationships, for all he knew or cared his access to his own children.

    Trump’s already got a lock on the presidency – he can use that secure position to cover other grifters as they make their dash for positions of high power.

    Now, this is Trump we’re talking about, so it’s probable he put as much thought into this tweet as I put into farting in my sleep…Report

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