An assault that allegedly occurred 36 years ago in Maryland could stop Supreme Court nominee Brett Kavanaugh before he makes it to the bench.
It’s the latest example of a decades-old allegation surfacing, and victims’ advocates say these cases show that statute of limitation laws should be reevaluated.
Christine Blasey Ford, now clinical psychology professor at Palo Alto University in California, alleges Kavanaugh attacked her in a high school party in the 1980s. She claims Kavanaugh pinned her down to a bed and tried to remove her clothing, putting his hand over her mouth when she tried to scream. “I thought he might inadvertently kill me,” she told the The Washington Post. She was 15 at the time. He was 17.
Kavanaugh has denied the allegations: “I categorically and unequivocally deny this allegation,” the judge said in a written statement released through the White House. “I did not do this back in high school or at any time.”
Statute of limitation laws establish the window of time to prosecute an alleged perpetrator of a crime and they vary by state. In Maryland, for example, where Kavanaugh is accused, there is no statute of limitations on cases of rape and sexual violence in criminal cases. That means the state of Maryland can file a lawsuit against the accused on behalf of the victim indefinitely after an event. In the case of a civil suit, the victim must file the case within three years of the alleged assault.
That’s not the case in every state. In Montana, a victim can’t report a sexual assault after 10 years. In Nevada, the limit is 20 years. In New Hampshire, it’s only 6 years or until the victim is 40 if they were under the age of 18 at the time of the assault. In September 2016, California eliminated the statute of limitations on all sex crimes. It previously had a 10-year limit.
The statute of limitations were created to limit wrongful charges. The assumption: As years go by, it’s more difficult to gather evidence and create a strong case surrounding an incident. But as technology and social mores change, these laws should be reconsidered, advocates say.
One of the biggest arguments for a statute of limitations is that corroborating evidence of the crime diminishes over the years: people who heard about the event will slowly forget details, or witnesses will not remember details.
In Kavanaugh’s case, the main evidence is in the form of notes from the victim’s therapist. Blasey Ford said she told no one about the episode until 2012, when she was in couples therapy with her husband. Ford provided a copy of the therapist’s notes to The Washington Post detailing the event, which she described as an assault by young men “from an elitist boys’ school” who would become “highly respected and high-ranking members of society in Washington.”
Notes from a later therapy session said she discussed a “rape attempt” that occurred when she was a teenager, The Washington Post reported.
But social media and technology is changing the nature of evidence in these cases, said Kristen Houser, spokeswoman for nonprofit the National Sexual Violence Resource Center in Pennsylvania. Recent cases of rape and sexual assault have been backed up with videos, or screenshots and recordings from Snapchat SNAP, -1.18% and Instagram FB, -1.07%
“In our technology-dependent society, that is becoming an obsolete point,” Houser said. “Whether we are communicating over text or email or through apps, we have so many records of communication. We live in a place where video surveillance can corroborate time or date or location. It’s become such a ubiquitous backdrop of our culture.”
Still, the ubiquity of social media is not a guarantee that evidence will be collected, or believed. Some victims say their social media posts have been used against them in court. Stanford student Brock Turner was sentenced to six months in jail for sexually assaulting an unconscious woman. Critics said the sentence was far too lenient.
In many cases, there will be no evidence to be found, Houser said. “Often, when we are talking about sexual assault, we are talking about things that take place in private,” she said. “Lack of corroborating evidence is often the result of strategic choices made by an assailant. They are the ones choosing a vulnerable person or isolated location with no witnesses.”
The rise of the #MeToo movement and shifting societal norms are also changing some views on statute of limitation laws, said Deborah Tuerkheimer, a former Manhattan prosecutor who teaches law and specializes in legal theory surrounding rape and domestic violence at Northwestern University.
The rise of the #MeToo movement and shifting societal norms are also changing some views on statute of limitation laws.
“In the era of #MeToo, there is more of a willingness to come forward and a hope that survivors of sexual violence won’t be treated with skepticism for reporting,” Tuerkheimer said. “A big part of this movement is that we are going to have more people coming forward because we are seeing more progress.”
In the 1980s, when Kavanaugh was accused of carrying out the attack on Blasey Ford, the anti-rape movement in the U.S. was still nascent. Assault and rape perpetrated by an acquaintance of the victim were judged to be significantly less serious than those perpetrated by a stranger, one 1982 study found. But in 88% of rape cases, the accused and accuser know each other, according to the Bureau of Justice Statistics. In the case of the attempted rape of Blasey Ford,
The New York Police Department said it saw a nearly 50% increase in rapes reported in May 2018 compared to May 2017, after the height of the #MeToo movement. Some 19.3% of those reported rapes occurred in previous years. The Department attributed the rise to campaigns, including #MeToo, encouraging more survivors to come forward.
This shift is speeding up an evolution surrounding statutes of limitations that was already in motion. Following The Boston Globe’s reporting on child abuse in the Catholic Church in 2002, some 29 states amended their prosecution deadlines to allow for victims of childhood abuse to report crimes later in life.
Whether the Kavanaugh incident inspires more women to come forward with their own allegations against other men depends largely on how it is handled, Tuerkheimer said, but as the reasons that people fear coming forward decrease, it’s important to keep the possibility of justice open.
“The way in which these moments shine a spotlight on a problem that we are reckoning with can lead to progress,” she said.
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