In Harper Lee’s famous novel, To Kill a Mockingbird, which became an Academy Award winning movie, the story revolves around a married black man, Tom Robinson, who is on trial after being falsely accused of raping and beating a young white woman, Mayella Ewell, in a small Alabama town. The reader or movie viewer learns from the evidence produced at trial that the putative victim and accuser is a poor, uneducated daughter of the mean town drunk. The marks observed on her by the sheriff after the beating were on the right side of her neck, face and body, and finger marks around her neck showed they had to have come from both the right and the left hands. Her injuries were thus inflicted mainly by the left hand of someone who also grasped her by the neck with both hands at one point during the beating. No evidence is ever produced at trial that she was sexually assaulted other than her allegation, and though she claims she screamed throughout the assault, she cannot explain why none of the other children in her family heard her.
Tom Robinson’s defense lawyer, Atticus Finch, establishes in court that Tom could not have committed the crime because his entire left arm and hand are paralyzed and useless due to a prior accident. Tom also testifies on the witness stand that he has never assaulted Mayella, but that on one occasion after she asked him to do some work around her home, she attempted to seduce him. When Mayella is asked by Finch if she screamed only after she noticed that her father saw her with Tom, she does not answer. Atticus also shows the jury that Mayella’s father is left handed. When Mayella is confronted with the huge inconsistencies in her story, and questioned about whether she is trying to cover up other of her own and her father’s misdeeds by blaming a Negro for her injuries, she is unable to explain why the evidence contradicts her story.
But the problem facing Tom Robinson, his family, friends, and Atticus Finch, is that the case is being tried to an all-white jury. Finch focuses his closing argument not only on the pitiful lack of evidence, but that the evidence affirmatively demonstrates that the State’s case is built on the assumption that a southern white jury will never reject a white woman’s accusation in favor of a black man’s denial, no matter how reasonable and convincing the Negro’s own testimony might be. Atticus Finch thus doesn’t fight so much to persuade the jury that his client’s version is more reasonable, as he knows the jury knows that, but to convince them to do what is morally right, despite their culture’s history of racial bigotry. He doesn’t blame them for feeling sorry for Mayella Ewell, who he himself pities as “a victim of poverty and ignorance.” But he argues that pity for her cannot morally be extended to cost an innocent human being his life. Atticus Finch memorably exhorts the jurymen to override their own culture of racial injustice, which Mayella and her father are trying to exploit, and instead do what is morally right as Christians: “In the name of God, do your duty! In the name of God, believe Tom Robinson!”
Less than two hours later, however, the jurymen, themselves utter slaves to the dictates of the white supremacy culture that supports them, find Tom guilty of rape. The life of a Negro is a small price for them to pay to preserve their own preferred way of life, despite the small twinge of conscience they might have felt when Atticus Finch urged them to conform their verdict to God’s will.
On Mount Sinai, the Lord instructed the people of Israel, “Thou shalt not bear false witness against thy neighbor.” Exodus 20:16. This instruction became the ninth of the Ten Commandments. That was 3,500 years ago, but since that time, the rule against providing untrue testimony against one’s “neighbor,” which includes all other human beings whether you love them, hate them, or are indifferent to them, has been a prominent and hallowed feature of Judeo-Christian law and morality. It exists in other religious and legal traditions as well. The idea that you should only speak the truth about another person is such a moral imperative in our culture, that knowingly doing the opposite to get him or her in trouble is a crime, and if it’s done while under oath, it’s a felony, punishable with prison time. It’s an inherently serious offense specifically because of its capacity to harm other people.
In Tom Robinson’s fictional case, Mayella’s lies about him, and the jury’s willingness to base their verdict on obviously perjured testimony, sends an innocent man to prison as a convicted rapist. When he later tries to escape, he is shot to death. But in other instances where false witness is borne, real, nonfictional individuals, or large groups of them, can suffer harm equal to that suffered by Tom Robinson. People can die or otherwise be ruined, but more permanently, a culture of bearing false witness can make all people everywhere unsafe. The Ninth Commmandment should never be regarded as antiquated and less crucial today than it ever was, because it’s a rule that protects all of us, whether we’re experienced enough to realize it or not. False words spoken about another, especially in today’s internet society where accusations spread quickly around the entire world, can not only get someone arrested and prosecuted, but cause them to lose their employment, their property, their honestly-earned reputation and even custody of their children. Though libel and slander lawsuits are occasionally used as intimidation to scare off honest critics, actual libel or slander, which require a finding of falsehood be found present in the accusation, deserves to be visited with heavy penalties.
Even false compliments, praise or defense of persons who we don’t honestly believe are worthy of them can do untold damage. If I recommend a doctor to an acquaintance, knowing that said doctor has several times been guilty of malpractice, it might cost my acquaintance her life. If I vouch for the reputation of a local priest knowing said priest has pedophilic tendencies, but am willing to bear false witness rather than go against the church, I may cost many additional victims their lives, or their emotional or mental health. If a friend of mine makes allegations against someone else which I have substantial reasons to doubt are true, I can do great harm by vouching for my friend’s credibility simply because he asks me to and I don’t want to offend him. And if I’ve seen my cousin beat his wife, and she’s later found beaten to death, the worst thing I can do at my cousin’s trial for murder is testify that I saw no evidence that my cousin’s marriage wasn’t a happy one.
The moral imperative of telling the truth extends to scenarios where the accuser is not perfectly sure he or she is falsely accusing someone. You cannot defend yourself by saying, “Well, I wasn’t completely convinced that I was wrong, I just realized there was a definite possibility I was wrong, so you can’t say I was lying. I was just mistaken.” Nor could Mayella Ewell morally say, “Well, maybe I wasn’t raped, but because of Tom I got in trouble, and that made me mad, so I accused him of rape.” Nor should she have said, if a rape really had occurred, “Well, I knew it was a Negro who did it, and I knew Tom was a Negro, so I thought it was probably Tom, so that’s the name I gave to the sheriff.” Nor can a jury excuse themselves by saying, “Well, Miss Ewell may have been a little confused on some of the details, but that’s no reason to let a Negro get off Scot-free.” We can sometimes afford to be confused about our own deeds or misdeeds, but we can’t be careless about reporting things done or not done by others. If I think I remember winning the Heisman trophy way back when, I’ll only hurt myself, not my neighbor, by telling everyone I won it. But we offend God, in my opinion, when we support a factual version of some event we’re not sure really happened, in the face of much countervailing evidence, and regardless of the potential harm to another child of God. We must conform our actions to what the evidence shows, not what we wish it showed. God doesn’t excuse choosing to ignore inconvenient, countervailing evidence like Tom Robinson’s jury did. God wants truth to be the victor, regardless of which faction it happens to favor in any given case.
As the title of this essay implies, the principles discussed above apply to some important features of the current accusations against United States Supreme Court nominee Brett Kavanaugh. There are some obvious differences, of course. Both men were accused of sexually-motivated assault and battery, though Tom Robinson was accused of completing the rape, and Kavanaugh was only accused of attempting it briefly at a much younger age. Kavanaugh’s proclamation of his own innocence faces a jury of 100 senators, almost half of which are hostile to his candidacy, and have said so, because he’s conservative and they are “liberal.” Tom Robinson faced a jury of twelve racially prejudiced white jurors who opposed him because he was black and they considered Negroes inferior and not worth protecting. But in both cases, the decision makers who opposed the fictional Tom, and those who now oppose the actual Brett, have each made unmistakably clear that they seek to defeat the accused whether the sexual allegations are true or not. They consider the possibility of ruining an innocent man with false charges more desirable than failing to defeat him by finding him innocent. In bringing him down, they honestly and unabashedly don’t care whether he’s actually guilty or not. This similarity between the two stories is as egregiously evil as it is striking.
In July of 2018, after Kavanaugh’s nomination to the high court, but several weeks before the confirmation hearings in the United States Senate were scheduled to begin, Christine Blasey Ford, a California resident, wrote a letter to Senate Judiciary Committee member Diane Feinstein in which she claimed that Supreme Court nominee Brett Kavanaugh had attempted to rape her at a party one night in the early 1980s. She claimed to remember the identities of five of the four boys and two girls present at the tiny party, but couldn’t remember who hosted it, or where it was held, or when, except that it was during summertime. She likewise didn’t remember how she got there, or how she got home. Specifically, she says Kavanaugh (but not she) was drunk, and that in the presence of another drunk boy, he pinned her down on a bed, held his hand over her mouth to prevent her from screaming, groped her, rubbed his body against hers, tried to pull off her clothes, and only stopped because his friend fell on top of him and knocked him off the bed. She alleges she then ran into a bathroom and locked the door. The two boys then left and went down the stairs, and she then ran down the stairs and out of the house unimpeded. She has also announced that she has passed a polygraph test administered by an anonymous former FBI polygrapher. However, as Ford’s attorney knows, but the public may not know, such polygraph results are not admissible in state or federal courts in this country, absent an agreement by both the proffering party and the party against whom they are proffered, because they are deemed too unreliable. Pathological liars can pass them with ease, since lying causes no measurable physiological response in their bodies. Otherwise, those whose heartbeat is affected by the polygrapher asking them if they’re being truthful about their claims– i.e., those who have a strong enough conscience–are susceptible to lie detection. Low intelligence subjects can pass them by not understanding the questions. Mentally unstable persons can pass them as well, because even if their statements are untrue, they can’t properly distinguish what’s real and what’s imagined and don’t know that they’re wrong. Individuals can also purposely skew the results by taking certain drugs or altering their sleep patterns prior to testing. And finally, truth tellers can fail them because they’re so nervous about being wrongly perceived to be lying that their physiological response then erroneously suggests deception. I say this as a former 30-year criminal prosecutor whose job required training in polygraph tests, evaluation of the questions used in many proffered polygraphs, and the occasional interviewing of polygraphers.
Kavanaugh has been interviewed on live television and has said that not only are the allegations not true, but that he was not at the party Ford is describing. He has never even witnessed anything like Ford is describing, and in fact, he was a virgin throughout high school and for several years thereafter. He has already released a written statement unequivocally and categorically denying the allegations, and has said he looks forward to reading that statement to the Senate under oath. As of this date, no woman has come forth to counter his claim that the first time he had sex was several years after high school.
If these were all the relevant facts of this matter, it would be difficult to form a strong opinion as to whose version is reliable. It would be comparable to Tom Robinson’s jury only hearing Mayella’s allegation and Tom’s separate version of the facts, with nothing to corroborate either one. The jury would have no reason to disbelieve Tom, other than a racist desire to do so, but would also have no reason to disbelieve Mayella. But as was the case in To Kill a Mockingbird, there are already many important pieces of uncontested evidence which favor Kavanaugh’s denial over Ford’s accusation. Later today, September 28, 2018, both Ford and Kavanaugh are scheduled to testify before Senate Judiciary Committee, and more evidence may be adduced which alters the current ledger of significant evidentiary facts.
The facts which weigh heavily against Ford and in favor of Kavanaugh are these:
- The four people Ford says she remembers being at the party not only don’t corroborate Ford’s memory of any such party in any way, but the one most likely to corroborate it, Ford’s own girlfriend and fellow feminist opposed to Kavanaugh’s confirmation, says she remembers no such party and doesn’t know Brett Kavanaugh. This fact is devastating to Ford’s credibility. It is the equivalent of what would have been the inference if in the fictional story, Mayella Ewell’s sister had testified that her dad caught Mayella trying to seduce the black man and beat her up as punishment, then instructed her to lie to cover up his involvement.
- Ford claims she never discussed or reported what she thinks was an attempted rape until 30 years later. While it isn’t uncommon for victims to fail to report experiences of sexual victimization experienced as teenagers, 30-year reporting delays certainly aren’t proof of veracity, either, especially when the claimant says she forgot the whole thing happened. Almost none of the reasons many such experiences are kept secret are present here. First of all, the overwhelming majority of experiences teenagers of both sexes tend to keep secret involve actual sexual intercourse, anal intercourse, cunnilingus or fellatio. Aside from those cases where nothing is reported because the claimed experience didn’t actually occur, victims keep quiet usually because they’re afraid of reprisals by the perpetrators or their associates, or of the loss of dignity they will feel by having to discuss the details of what occurred and their own degree of willing participation. They also may fear they won’t be believed and will suffer even more demeaning treatment by those who seek to impeach them. Some teenagers don’t reveal what they’ve endured because they truly don’t recognize how serious or damaging the perpetrator’s behavior is; some of them are actually used to such behavior because of the dangerous environment they’ve grown up in. Some teenagers aren’t traumatized at all by over-the-clothes groping and rubbing, or having their clothes tugged at, while others, having experienced similar acts or even actual rapes, hide their well-remembered experiences because it’s too emotionally traumatic to relive them. But none of those reasons for secrecy have been claimed thus far by Christine Blasey Ford. She has not claimed that her life suffered for the 30 years after the event in any way that could be linked to what she claimed occurred.
Moreover, Brett Kavanaugh at 17 years old was neither well known, powerful, or intimidating to anyone, and Ford hasn’t alleged otherwise. Both she and Kavanaugh attended separate single-gender private schools funded by well-to-do parents. They didn’t belong to a common group of friends. Ford was never threatened by anyone with any warning not to divulge what had happened to her. She couldn’t reasonably feel much shame over what had transpired, because she doesn’t admit to having even been drinking, much less consenting to the unwelcome behavior. Even if she might have gotten in trouble with her parents for attending a party where alcohol was being imbibed, as she has alleged, this reason wouldn’t inhibit her from revealing the incident once she became an adult. Without these reasons to keep the matter secret, it is hard to explain why it went forgotten and unmentioned for 30 years.
- The alleged event was divulged in a setting wherein Ford was receiving marriage counseling. Those seeking counseling for marital problems are highly motivated to justify their difficulties. They want to provide plausible explanations for their behavior, but if the true reasons are ones they don’t want to divulge (e.g., “I’ve resented having been expected to cook meals all these years after coming home from work”; “I’m having an affair with someone else but don’t want a divorce”; “I’ve had an abortion I never told you about”; “I’ve had a drug problem that I haven’t divulged”; “I’m not sexually attracted to you but don’t want to say so”; “I’m attracted to those of my own sex but don’t want a divorce”), it’s much easier to say some unnamed prominent person in Washington tried to rape them at a party when they were 15, and even though you have a husband, a doctorate degree in psychology, a job and two children now, you never recovered. How can such an explanation be disproven? It can easily be supplemented later, and it won’t be hard to name a perpetrator after a little research through yearbooks. The only problem with this explanation is that one wonders why Ford withheld it from her husband before the counseling session became necessary, since it constituted virtually nothing to be ashamed of.
- The explanation that Ford remembers five of the six people there, but doesn’t remember that sixth person whose house it was, and who happens to be the second most crucial witness in verifying that such a party took place, and when and where it happened, isn’t credible. More credible is the inference that she DOES know perfectly well the sixth person’s identity, and where he lived, but can avoid his rebuttal of her story by simply not naming him. If she keeps him secret, he won’t come forward and say, “That may have happened to you, but I wasn’t there and it didn’t happen at my house,” or “Part of that happened but it wasn’t Brett who did it; he wasn’t there, but you would remember it better if you weren’t so drunk yourself that night. You don’t remember how you got home because you were passed out.” Her forgetfulness would be more credible if her memory weren’t so precise on all the details that condemn Kavanaugh, or if there weren’t such a small number of people to remember, or if these experiences were too common in her life to keep them all straight, or if she admitted that she, too, had been drinking. To forget the identity of the second most important person capable of corroborating her story appears more than just suspicious, especially after her girlfriend, the first most important potential corroborator who Ford claims was present, says she remembers no such party and doesn’t know Kavanaugh.
- Ford’s claim that she doesn’t remember how she got to the party, or how she got home, is extremely suspicious and implausible. This is NOT normal for people who allege they were fearful for their lives and desperate to escape. In all my years of prosecuting rape and attempted rape cases, and screening them for prosecution, I have never heard of someone forgetting how they got away from the place where they narrowly escaped being raped or killed. If there is one thing they DO remember well, it’s how they successfully escaped this one-time-only, unprecedented peril. They have to either go home by the same means they used to arrive, or they have to know why that’s not possible and devise a different, desperate method of getting to safety. It is the most important decision they make in such a situation, and it’s never the part they can’t remember.
- Kavanaugh’s yet-undisputed claim that he had sex for the first time several years after high school is one he’d be unlikely to make if he knew some woman out there knew otherwise. The fact that he made that claim makes two conclusions likely: First, he knew the claim was true, and no one would dispute it. Second, it was extremely unlikely that a someone who remained a virgin for many years after high school would be trying to rape girls when he was 17. This is especially true in Kavanaugh’s case. Someone who has the self-discipline that he possessed then to be class valedictorian, a successful athlete, active in his church, active in service projects and a virgin for so many years isn’t likely to have an uncontrolled weakness for trying to rape girls, which could land him in prison for life. If he did have such a weakness, his weakness would be far more well-known than his accomplishments. But no one corroborates this weakness. Similarly, Tom Robinson was a well known married Negro in his small Alabama town, and many people were familiar with him. No one had ever known him to try to attempt romance with white women or other black women prior to Mayella’s accusation. How hard would it have been to hide such a propensity from everyone in a small segregated southern town? Was it probable Mayella was right, and everyone else was wrong, or vice versa?
- The number of people who have come forward to testify of Kavanaugh’s sterling character, especially toward women, cannot be ignored, no matter how convenient it may be to do so for his Senate accusers. This has strong evidentiary value. Most of these ardent Kavanaugh supporters have been women, and many of them have been liberal women who support liberal court nominees. They have been his law clerks, his fellow judges, his fellow employees, law professors and students, friends from church and volunteer organizations, and a host of people whom he grew up with. They have rushed to his defense unsolicited. They are unanimous in attesting to his goodness, his consideration for others, his efforts to promote women’s and minorities’ opportunities for advancement within his profession, and to fulfill the measure of his role as judge in the most honorable way possible. Does all that weigh less than an accusation from a woman whose own life and credibility have been scrutinized not at all? Is scrutiny unnecessary if she’s female and belongs to the accusing senators’ own political tribe? Do Kavanaugh’s opponents believe only Kavanaugh should be asked tough, frank questions, if the objective is to find the truth? Should only the accused be grilled, but Ford spared any questions about the last 36 years of her life?
In our efforts to evaluate the evidence, should Ford’s improbable-sounding and unanimously uncorroborated version of what Kavanaugh allegedly did for one minute when was 17, which was affirmatively discredited by her longtime girlfriend, as well as by Kavanaugh, override what we know Kavanaugh has done for the last 36 years? Or should it boil down to simpler questions: Is Brett Kavanaugh conservative or not? If he is, why does it matter if Ford’s story is accurate or not? Why do we care if Tom really did rape Mayella? He’s a Negro, ain’t he?
After I wrote this essay, a letter from Christine Blasey Ford’s ex-boyfriend, Brian Merrick was received by the Senate Judiciary Committee. In it, Merrick said he bore Ford no ill will, and wasn’t trying to suggest she didn’t believe her allegations against Kavanaugh, but refuted these key elements of Ford’s Senate testimony. Specifically, he said–
–Though Merrick was Ford’s boyfriend for six years during the 1990s, during that time he never heard her mention anyone having attempted a sexual assault of her, nor did she ever mention Brett Kavanaugh.
–Ford never demonstrated any fear of flying, having flown around the Hawaiian islands with him in a small airplane with a propeller (and on jets on numerous other occasions for vacations , as airline records later independently confirmed).
–Ford also had no fear of small enclosed spaces, and Merrick had personally helped her select a California apartment of 500 square feet and only one door which she subsequently lived in.
–Ford had instructed her best friend, Monica McLean, how to prepare for a polygraph test, explaining how they work, what questions are asked, and other information drawn from her experience as a psychologist.
–Merrick broke up with Ford after her found out she’d been cheating on him. He then took her name off his credit card account, but found out she continued to use his credit card until he confronted her about it. She initially denied using his credit card, but confessed she had when he threatened to have her investigated by credit card company investigators.
The above contents of the letter were divulged after the Kavanaugh confirmation hearings had concluded. Most people following the hearing never became aware of them. The New York Times, no friend of Kavanaugh’s, reported on Merrick’s letter, however, in an October 3, 2018 article by Peter Baker, entitled, “Christine Blasey Ford’s Credibility Under New Attack by Senate Republicans.” Brett Kavanaugh was confirmed by a vote of 50-48 to the Supreme Court. Joe Manchin of West Virginia was the only Senate Democrat who voted for him.