The Volokh Conspiracy

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Why it Will be Difficult to Assess Ford's Credibility

|The Volokh Conspiracy |

Ford acknowledges she didn't tell anyone in any detail about Kavanaugh's alleged sexual assault and attempted rape until thirty-two years after the incident. Under the best of circumstances, a thirty-two year time gap before an allegation surfaces would raise questions about the accuracy and completeness of complainant's memory. But this isn't the best of of circumstances. For one thing, everyone else who Ford claims was at the relevant party, including a lifelong friend of hers, has denied any knowledge of the party, much less the specific incident. For another, Ford doesn't remember the day, place, or even exact year of the incident.

That isn't necessarily fatal to her credibility, though it is obviously difficult for Kavanaugh to rebut an allegation that contains no verifiable details.

But there is another signficiant problem with assessing credibility in this case. In the absence of eyewitnesses or other corroborating evidence, I would want to know a lot more about this, from the original Washington Post news story reporting the allegations: "Years later, after going through psychotherapy, Ford said, she came to understand the incident as a trauma with lasting impact on her life. … She also said that in the longer term, it contributed to anxiety and post-traumatic stress disorder symptoms with which she has struggled."

This raises many questions. What did she originally tell her therapist? Who was her therapist? Is her therapist known as a cautious clinician, or someone who believes in recovered memories, or what? What modalities of treatment did her therapist use? In particular, did she use hypnosis to either help Ford recover the memories, to render them less traumatic, or otherwise? When was Ford diagnosed with anxiety and post-traumatic stress disorder? What other trauma(s), if any, led her to suffer from PTSD?

For example, the use of hypnosis in particular would render the details of any subsequent memories suspect. On the other hand, if she had described the incident in great detail without prompting, that would be a point in favor, though obviously not conclusive given the 30-plus year time gap.

If this were actual litigation, say Ford suing Kavanaugh for the incident, all of this information would be discoverable. The Senate does not appear inclined to subpoena the relevant records, assumedly for the obvious reason that this would be seen as an invasion of her privacy, perhaps an attack on her mental stability, and so on. It would just be bad politics. I'm pretty confident that Ford's lawyers won't turn these records over voluntarily. But without knowing in more detail how Ford came to see an incident that she had not confided to anyone about for thirty years as a significant trauma that she had previously not recognized as such, I don't know how anyone could begin to accurately assess the credibility of her allegations.

I've seen the following argument made over and over on social media: "I was sexually assaulted thirty year ago, and never told anyone. Dr. Ford claims she was sexually assaulted over thirty years ago, and never told anyone. Therefore, we should accept Dr. Ford's claims as true." This is not a logically sound argument. A more limited argument is logically sound: "I was sexually assaulted over thirty years ago, and I never told anyone. Therefore, the fact that someone didn't tell anyone for thirty years about a sexual assault doesn't mean that she is lying or imaging it."