Letter to the Editor: Belief, Proof and a Plea for Mutual Understanding

If the past several years have shown us anything, it’s that the only viable path back to civil discourse and functional politics involves at least entertaining the possibility that those with whom we disagree are acting in good faith.

In her recent post on the Supreme Court confirmation hearings, Prof. Rebecca Hamilton offered several theories for why Republican members of the Senate Judiciary Committee profess to find Dr. Christine Blasey Ford credible while remaining unconvinced that a teenage Judge Brett Kavanaugh sexually assaulted her. All involve varying levels of cynicism, manipulation, and/or duplicity: (1) Republicans say they believe her but are lying; (2) they believe her but cannot bring themselves to concede “their guy” could do such a thing; and (3) they know he did it but “just do not care.”

There is one glaring omission on this list of possible rationales: that one need not disbelieve or discredit the victim in order to steadfastly maintain that it contravenes every conceivable principle of fair play in a society governed by the rule of law (irrespective of the specific adjudicatory setting or applicable burden of proof) to brand the accused a predatory monster based on alleged conduct committed nearly four decades ago, as a minor, that remains relatively unfixed in time and place, lacking in key details, unsupported by independent evidence, and uncorroborated by named witnesses.

Criticism of politicians and public officials is of course healthy, welcome and expected, but any attempt at a fair-minded critique of Sen. Lindsay Graham’s (R-S.C.) role in the current confirmation proceedings cannot discount or overlook his experience as a military defense counsel. Indeed, it would be very difficult to find a uniformed defense attorney from any of the service branches who has not represented clients both justly and unjustly accused of sexual assault, and seen first-hand the toll taken by the latter, up to and including suicide. This is not equating being falsely accused of sexual assault with the unrivalled horror of being sexually assaulted. It is merely acknowledging that the latter can itself be harrowing and that Graham may have seen it first-hand as a military lawyer. If we ever hope to break free of the current cycle of divisiveness, this potentially genuine explanation for Graham’s position merits at least passing consideration.

Mental health professionals can absolutely provide important insight into why victims of sexual trauma delay or decline to come forward, along with understandable gaps in their memory of events. This does not, however, relieve fact-finders of their obligation to make equitable judgments about the accused based on the state of the evidence, both present and lacking.

It is, ultimately, insufficient in nearly any decisional forum to conclude that the accuser’s identification of the accused is unassailable because it is “indelible in the hippocampus.” The accused needs some factual bearings to have any chance of rebutting the allegations. It is simply impossible to provide an alibi for alleged misconduct that occurred sometime before the accused’s friend was seen bagging groceries at Safeway, no matter how assiduously one annotates and keeps calendars. Ideally the ongoing supplemental investigation will fill in some informational gaps, but anyone hoping for a eureka moment is likely to find then-Sen. Joe Biden’s (D-Del.) long-ago assessment of the probative value of FBI reports in confirmation debates to be depressingly prescient.

Yes, testimony is evidence, but that’s not the point. You can be denied a benefit, determined liable, or even found guilty based on testimony alone, but the question is a more practical one: As to a specific allegation, when if ever are the conflicting, disputed, uncorroborated, incomplete, and decades-old recollections of a single individual sufficient as the sole basis for a ruling or decision in any proceeding designed to either actually afford or vaguely approximate some semblance of due process?

I have no idea what evidentiary standard is implicated by constitutional advice and consent. As a frame of reference, the lowest burden of proof I am aware of is that applied by the Department of Veterans Affairs (VA) in service-connecting veterans’ illnesses and injuries to establish eligibility for benefits. VA rating officers are instructed to consider all relevant medical and lay evidence under “a broad and liberal interpretation.”

To find that the veteran’s condition is connected to military service, courts have established a three-part test. Claimants must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.

If a veteran sought VA health and disability benefits in 2018 for presently diagnosed post-traumatic stress disorder (PTSD) related to a trauma incurred while on active duty in 1982, but provided no evidence of the trauma other than a convincing personal narrative and medical records from 2012 through present, I do not believe the VA could or would grant service-connection even under its broad and liberal standard. Based on my experience, the VA would likely deny the claim and ask for extrinsic evidence, such as contemporaneous records documenting the traumatic incident (e.g., police reports, emergency department visits, medals or awards for combat engagements, performance reports describing what the service member did).

In the case of personal trauma (including military sexual trauma) that was never officially reported or recorded, the VA could look next for any sources of evidence indicating “behavioral changes around the time of, and after, the incident(s).” Included among the VA list of “markers of trauma” in proximity to the claimed stressor are increased truancy, panic attacks, medication changes, substance abuse, relationship breakups, steep performance drop-offs, etc. Absent either direct evidence or contemporaneous “markers” of in-service trauma, the veteran would have satisfied the first prong of the aforementioned judicial test, but not the second or third.

In his book The Black Swan, author Nassim Taleb discusses two groups who, by necessity, must learn to be comfortable with uncertainty. The first is military leaders, given the Prussian aphorism that no plan survives contact with the enemy. The second is physicians, who owe their patients the standard of care, not a warranty for cure. There is a reason why clinicians use the term “no evidence of disease,” as opposed to “evidence of no disease.” The latter is a proposition that cannot be proven.

By any measure of justice, demanding “evidence of no assault” cannot be the standard applied. It presupposes an impossibility. The best we can do as a society committed to some notion of fairness is to ask whether there is adequate evidence of assault to support the accuser’s claims – this quest can be imperfect, maddening, and allow some bad actors to avoid what we consider their just deserts. But it reflects what Sen. Jeff Flake (R-Ariz.) implored his colleagues to acknowledge: that “there is likely to be as much doubt as certainty” in this process.

Here is what we know, and roughly what we are likely to know even after the FBI completes it supplemental investigation:

– The victim provided heart-wrenching and riveting testimony professing “one hundred percent” certainty that the accused assaulted her, along with her closest (but still vague) approximation of when and where the assault happened, while conceding no memory of how she got to and from the scene.

– The accused provided vehement and riveting testimony denying the allegation, producing non-dispositive extrinsic evidence that he was extraordinarily diligent about documenting his whereabouts during the wide timeframe in which the assault allegedly occurred.

– Mark Judge, the co-accused / male witness #1, stated that he has no recollection of any such event.

– Male witness #2 stated that he has no knowledge of any such event.

– Female witness #1 stated that she has no recollection of any such event, does not know the accused, but believes the victim’s account.

– The social scene for popular students in single-gender private high schools in the affluent Washington, D.C., suburbs in the early 1980s was fueled by alcohol and debauchery. There are indications that the Yale undergraduate experience for partygoers in the early-to-mid 1980s may have been more of the same.

As it pertains to the specific allegation of sexual assault in the summer of 1982, whether the aforementioned facts (barring new revelations) are sufficient to deem a District of Columbia Circuit Court judge morally unfit for elevation to the Supreme Court is up to a handful of undecided senators. Presuming good faith among those with different points of view, especially on emotionally charged issues, is up to all of us.

Lt. Col. Charles Kels is a judge advocate (JAG) in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.

Photo by Drew Angerer/Getty Images

 

About the Author(s)

Charles Kels

A lieutenant colonel in the U.S. Air Force and formerly served in the Office of the General Counsel of the U.S. Department of Homeland Security. His views do not reflect those of the Air Force or Department of Defense.