Assault allegation against Trump court pick Kavanaugh: how strong is it?

Supreme Court nominee Brett Kavanaugh, alongside Senator Chuck Grassley, attends a confirmation hearing in the US Senate on Capitol Hill (AFP Photo/SAUL LOEB)
Charlotte PLANTIVE

Washington (AFP) - University professor Christine Blasey Ford has accused President Donald Trump's US Supreme Court nominee Brett Kavanaugh of sexually assaulting her at a party 36 years ago. A questions now is, does her charge have legal weight?

The answer is hardly clear-cut.

- Could the charge be prosecuted? -

Blasey Ford says the incident took place around 1982 at a house party with teens from elite all-boys and all-girls schools in the wealthy Bethesda, Maryland suburb of Washington. She says that a drunken Kavanaugh held her down on a bed and tried to tear her clothes off as another boy watched, but that she fought him off and escaped. Kavanaugh, today an appeals court judge, denies the charge.

Blasey Ford has not filed criminal charges with police, but if she did, the case would be investigated in Maryland, where there is no statute of limitation on felony sexual assault crimes.

Yet, without a solid file of evidence, prosecutors might balk at taking the case. That would leave an accuser the alternative of filing a civil suit against the attacker.

So far Blasey Ford's lawyers have only requested that the FBI follow up the accusations as part of their official background investigation of Kavanaugh's suitability for becoming a Supreme Court judge. That would involve the FBI interviewing witnesses, but only forwarding their findings -- and not a verdict -- to the White House for its use.

- Decades-old incident -

The long time it took for Blasey Ford to come forward also makes a case tough. She said that at the time of the alleged assault, when she was only 15, she feared her parents finding out she was at a party where there was alcohol.

But she was traumatized, and it took her 30 years before she told anyone, confiding first to her psychiatrist.

She told Senator Dianne Feinstein of California in July after Kavanaugh appeared on Trump's shortlist for the Supreme Court, but she insisted on not being identified, fearing retaliation.

"From a defense perspective, we are always skeptical of adults who wait for a long period of time to make serious accusations," said Tom Pavlinic, an attorney in Annapolis, Maryland who defends clients against sex crime charges.

Today, however, the #MeToo movement against sexual harassment and assault has tipped public opinion in favor of women who come forward years after an incident.

According to the Department of Justice, out of an estimated 325,000 rapes and sexual assaults in 2016, only about 23 percent of the victims make police reports.

"The political climate is to be more forgiving to people waiting" to reveal their experience, Pavlinic said.

- Trauma and memory -

Pavlinic points out that when the incident allegedly took place, there was no SnapChat or Facebook, no cell phones or email -- so no contemporaneous evidence.

That leaves the case rooted in one person's memory against the other's -- and Blasey Ford does not recall all the details of the incident.

"The problem is, Dr Ford can't remember when it was, where it was, or how it came to be," senior Republican Senator John Cornyn said Tuesday.

Lisae Jordan, executive director of the Maryland Coalition against Sexual Assault, said it is not unusual for victims to remember only some details.

"Memories can be affected by time, but also by trauma," she told AFP.

"This is a natural part of the brain's trauma response."

But that does not mean a case has to founder on lack of evidence.

"I stand to believe there is no such thing as a 'he said-she said' case," former Manhattan prosecutor Linda Fairstein told the Washington Post.

"As a prosecutor, it's your job to break down every minute of the encounter, so that details on one side push the facts over the edge."

- 'Youthful indiscretions' -

Some argue that a supposed mistake by a teenager should not disqualify them against a long ensuing record of good behavior, as Kavanaugh apparently has.

However, Blasey Ford's supporters say her allegation, if true, would say something about Kavanaugh's character.

"With respect to the Supreme Court, you're dealing with an elite position which is a privilege to be confirmed for. And arguably, the standards are much higher," former federal judge Nancy Gertner told the New York Times.

Pavlinic added that if Kavanaugh is lying about the incident, "the cover-up is worse than the crime."