O’Mara to Ford: Testify, bring abuse out of shadows
Our judicial system is bent toward protecting the accused more than the accusers. So a legitimate victim will be revictimized. Thus, the dilemma of any accuser, and today that’s what Professor Christine Blasey Ford faces.
Ford, in a confidential letter to Sen. Dianne Feinstein, alleges that she had been sexually assaulted by U.S. Supreme Court nominee Brett Kavanaugh while they were both in high school. The incident was disclosed without Ford’s consent.
The fallout from that disclosure led the Senate Judiciary Committee to ask her to testify before the committee about the allegations. With all due respect to Ford’s extraordinarily precarious and exposed position, I think she needs to comply with the Senate’s request. She has passed a polygraph, and stated she would testify. However, she and her lawyers are concerned that the timing is premature because a true investigation has not yet been undertaken.
In that regard, she is correct. Were this a law-enforcement agency’s investigation of a sexual abuse allegation, then we would expect, and demand, that the agency interview all of the witnesses, searching for witnesses to whom the event was described or disclosed prior to the recent disclosure. We would also expect law enforcement to determine whether other individuals were subject to the same type of abuse, and they would do a complete forensic interview of Ford and all other witnesses.
In a perfect world, that is what would happen. Unfortunately, not only are we in an imperfect world, but there is a timeline in place pursuant to constitutional guidelines, under which the U.S. Senate is operating while evaluating Kavanaugh in order to vote on a candidate for the U.S. Supreme Court. Ford, even as a victim of sexual misconduct or abuse, does not have an independent right to issue an edict as to how this process takes place. She can certainly refuse to testify, and then the Senate will move forward without that evidence.
What Ford cannot do under any Senate rule, criminal-procedure rule or lawenforcement rule is demand that an agency investigate as a pre-condition to her testifying.
I have represented many victims of sexual abuse, just as I have defended many people accused of sexual abuse. These are extraordinarily difficult and trying cases for all sides, particularly for the person who is victimized by the abuse. Within our system of rules, laws and procedures, that victimization cannot be a trump card for the orderly progression of the matter. If Ford was, as she stated, abused by teenager Kavanaugh, then she is about to be re-victimized by a system that by our very own Constitution protects the rights of the accused, sometimes more profoundly than the rights of the accuser.
Ford has now found herself on the edges of a system that presumes innocence until evidence is presented to undo that presumption. While the present process is not a true criminal prosecution, the same principles and rights apply. Ford has taken the enormous step and risk of relaying her traumatic encounter, and was thrust into the public forum regarding an abuse from years ago.
Ford must testify in front of the Senate Judiciary Committee. Her failure to do so will simply allow for a streamlined conclusion to this issue without it being ever properly addressed by the Senate. She will, in effect, by her refusal to comply with a certain rule of procedure, actually act in detriment to her own stated position.
Should Ford decide to testify, she will then put the information out there for all of us to see and judge for ourselves. By doing so, she will put the onus back on the committee to look further into these allegations. After all, how can the committee, after hearing what we can presume to be compelling testimony by Ford, fail or refuse to interview other witnesses, such as Mark Judge, who allegedly was at the event; Ford’s husband; and her counselors in 2012 and 2014?
Ford’s fear that since the investigation is not complete, and therefore the Senate will not have all of the information available to it before she testifies, is simply misplaced, and will have negative blowback on the process.
Professor Ford, my advice is as follows: Even under less-than-favorable circumstances, you must testify before the committee. Be completely honest and straightforward in your answers; testify with the knowledge that your truthful testimony will have impact on the committee and on the nation, who will be listening. Know that through this difficult and exposing process, you will be taking advantage of an opportunity not offered to many victims of sexual abuse: You will be given a public, national voice to inform us, and he whom you accuse, that the days are gone that sexual misconduct will be kept pushed into the shadows.