The New York Post
By Linda Fairstein
October 5, 0218
Mitch McConnell and a cohort of fellow Republican senators announced their plans to vote to confirm Brett Kavanaugh for a seat on the Supreme Court despite the compelling statement of Christine Blasey Ford, calling her testimony an “uncorroborated” accusation.
As a former sex crimes prosecutor, the use of that inappropriate term is particularly offensive to me, representing archaic legal views that were in place in America for more than a century and which prevented the overwhelming number of victims of sexual assault from ever being allowed their day in court.
What was the basis for the need to “corroborate” a rape victim’s word, when no other crime in the Penal Law imposed such an absurd requirement on accusers? It was the legacy of a British jurist — Sir Matthew Hale, Lord Chief Justice of the King’s Bench in the 17th century — who wrote an opinion which held that the testimony of a woman reporting rape must be examined with more caution than in any other category of offense.
In 1970, two years before I came to the practice of law and joined the office of the New York County District Attorney, more than 1,000 men were arrested for sexual assault in the five boroughs of this city, yet only 18 of them were tried and convicted.
Even the most honest among the accusers — think of your daughters or mothers or sisters or friends — were denied access to the courtroom because their cases lacked the three elements of corroboration, codified in our laws: identification of the attacker, in this a crime that is rarely witnessed by anyone; the sexual nature of the attack, long before we had evidence-collection kits and the science of DNA; and proof of the force that had been used, making severe injury a “good” thing for a rape victim to experience if she wanted her case to go to trial.
I met these women every day of the week. My colleagues and I, and the great women and men of the NYPD investigated these cases. Then we read the law of this state to each accuser who had been courageous enough to come forward to seek justice, apologized for the fundamental unfairness of the legislation, and told them that it prevented us from taking their cases to trial, no matter how much we believed them.
We weren’t losing verdicts before juries, we simply weren’t allowed to give rape victims a chance to enter the courtroom.
That changed in the mid-1970s, in every state in this country that still had the ancient rule embedded in its laws. It was recognized then — as now, still — that sexual assault is the most underreported crime in the Penal Law. Every prosecutor knew that a victim of robbery or assault or car theft didn’t need an eyewitness to testify at a trial. We handled homicides, too, that could proceed to conviction on circumstantial evidence alone, without any person who had observed the fatal act.
For at least four decades, the rise of Special Victims Units in police departments and prosecutor’s offices everywhere has insured a better opportunity for survivors to be met by experienced professionals who are trained to look for evidence that supports their claims. But the law is clear — the word of a woman is legally sufficient, with no other evidence required, to take her accuser to trial. That doesn’t mean the people will secure a conviction, but it does mean the “corroboration” rule is bogus.
Paramount in assessing a claim is the credibility of the accuser herself — and few of us have heard any witness more credible than Ford. Before the Judiciary Committee and the viewing public, she was candid. She has never wavered in her description of the attack. She named people who were present at the gathering — people who were part of Kavanaugh’s social circle that summer, which is not something she would otherwise have known. Key details of her account, including her inclusion of a third person during the attack itself, are consistent with prior statements made years earlier to her therapists.
These are not exterior “corroboration” as McConnell means it, but to any prosecutor honestly assessing the strength of a victim’s claim, they are powerful indicators of believability.
Whether any of the other witnesses Ford mentioned as present at the “gathering” remember it or not is irrelevant. Since they had no knowledge of what occurred at the top of the staircase — either as witnesses to the sexual assault or reports from Ford herself — the evening would have had no special meaning for any of them. It makes no sense at all that she would have made her outcry to friends of her assailant.
Sir Matthew Hale was quoted frequently in legal opinions about rape until the 1970s when we took the step to eliminate his centuries-old view of the value of the word of a woman. The only legal opinion I could find him cited in since rape reform legislation passed in this country was a 1993 decision in England: Regina vs. Kingston. The court affirmed a conviction in that case, relying on the wisdom of Hale, in ruling that drunkenness is not a defense to a crime of intent. Perhaps that fact would be of more use to the senators as they prepare to vote.