Christine Blasey Ford has accused Brett Kavanaugh of serious crimes. Let me start off by saying that if these accusations are true, then Kavanaugh should not be a Supreme Court Justice or a judge of any kind. The Senate proposes to have hearings next week in order to consider whether these allegations are true. As these hearings proceed, though, it is important to remember that they are not to determine whether Kavanaugh will be charged criminally. Multiple factors preclude a criminal prosecution here:
The lack of corroboration. It goes without saying that a criminal charge of attempted rape or sexual assault will ruin a person’s life. For this reason, most prosecutors rightfully do not bring these sorts of cases without some sort of corroboration. For example, in the Bill Cosby prosecution, there was corroboration, from Cosby’s own statements to the physical evidence to the sheer number of women who made the same claims. As of this writing, we are not aware of any corroborating evidence to support Ford’s claims. There is no physical evidence. There is no admission to any portion of Ford’s claims by Kavanaugh. There are no similar claims by other women. There is no contemporaneous complaint. Without such corroboration, it is hard to imagine that a prosecutor would bring this case.
The claims are very old. Most states have statutes of limitations for attempted rape and sexual assault. This means that prosecutors can’t prosecute for these crimes after a certain amount of time has elapsed. There are important reasons to have these limitations on prosecutions. For starters, evidence — including memory — gets stale after time. In this case, more than 30 years have passed since the alleged act took place. Therefore, Kavanaugh could not be prosecuted in many states. Maryland, the state where the alleged attack took place, does not have a limitations period for any felony sexual offense. As a practical matter though, the passage of this much time would make such a prosecution almost impossible.
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