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We’re Sexual Misconduct Law Experts. The Senate’s Brett Kavanaugh Investigation Is a Hot Mess

We’re Sexual Misconduct Law Experts. The Senate’s Brett Kavanaugh Investigation Is a Hot Mess

The Senate Judiciary Committee’s position that the committee itself should vet Christine Blasey Ford’s report of past sexual assault by Supreme Court nominee Brett Kavanaugh is a straight-up boondoggle. Ford’s insistence on a thorough fact-finding process by an impartial body is spot-on.

In fact, the committee’s proposed investigative process demonstrates with jaw-dropping clarity that it does not genuinely believe that preventing sexual misconduct is a real goal worth fighting for.

Twenty years ago, the U.S. Supreme Court held that employers must demonstrate a sincere commitment to preventing sexual harassment by implementing effective processes to receive and investigate reports. The hallmark of an effective process is the prompt, thorough, and impartial handling of reports. The underlying principle is simple: The fact finder must consider all relevant evidence and make an objective finding based solely on that evidence.

But in a remarkable break from this judicial precedent, the committee proposed this week that its own members will investigate Ford’s claim, and that this “investigation” will be limited to two witnesses.

The committee’s proposal to limit the testimony to just the accused and accuser is contrary to the principle that investigations must be thorough. Because Kavanaugh has flatly denied the accusation, this is a “he said/she said” case. There is nothing unusual about that, given that sexual harassment and assault rarely occur in front of others. But what is unusual—and problematic—is the committee’s refusal to hear testimony from other witnesses who could potentially offer relevant information.

The committee’s intent to exclude potentially corroborating evidence illustrates that its proposed process is not designed to lead to factual findings. In “he said/she said” investigations such as this, factual findings necessarily turn on credibility assessments. Credibility certainly can be assessed absent corroborating evidence. Make no mistake—a complaining party’s report can be credited when the investigator finds them to be credible and when the account is sufficiently detailed and internally consistent so as to be plausible. Importantly, when the accused’s general denial is contradicted by other evidence—such as the alleged victim’s medical records and their past statements about what occurred—that denial carries little weight. Here, the committee’s proposed process conveniently excludes evidence that would contradict Kavanaugh’s claim that no assault occurred.

Indeed, the committee’s limit on the evidence it would consider means that any findings made would be based solely on committee members’ very publicly expressed biases either for or against Kavanaugh. For instance, Sen. Orrin Hatch opined that Ford may be “mistaken” or “mixed up” about what happened to her. That is a stunning insight coming from someone who was not present at the time of the event in question. The bottom line is that every committee member has some skin in the game when it comes to Kavanaugh. No one is impartial.

The committee’s assertion that it is equipped to judge the veracity of Ford’s report flies in the face of the Supreme Court’s admonition that investigations must be impartial. A fact finder’s impartiality is important for the obvious reason that the goal of an investigation is to find out what really happened. A fact finder who is predisposed to favor one side may ignore or fail to give proper weight to contrary testimony or evidence, fail to follow up on relevant leads, and reach conclusions that are inconsistent with the facts gathered.

Impartiality is also critical for a second, and less obvious, reason. When a fact finder appears to favor one side, constituents—be they voters or employees—learn that speaking up is futile, perhaps dangerous. Even the appearance that a fact finder is biased has a strong chilling effect on the willingness of others to report harassment. The simple truth is that, for regular people, the prospect of reporting sexual harassment is terrifying. The investigation process is a deep, dark unknown.

The committee’s treatment of Ford’s report is a window into how the predominantly male members believe that reports of sexual misconduct should be handled. But don’t be fooled: The committee’s 16 attorney members and 64 staff attorneys know precisely what needs to be done to thoroughly and impartially investigate Ford’s report. The committee has every resource imaginable to design a meaningful investigative process that furthers Congress’s stated intent to prevent sexual misconduct. They have simply made a calculated decision not to do so and, instead, insist on an investigative process that cannot reasonably uncover the truth.

Julie Moore and Marcie Vaughan are attorneys and HR consultants with Employment Practices Group.