Did Brett Kavanaugh attempt to rape Christine Blasey Ford in 1982, as she testified in detail on September 27? Almost nobody has accused her of deliberately lying about the alleged attack. But the…
Did Brett Kavanaugh attempt to rape Christine Blasey Ford in 1982, as she testified in detail on September 27?
Almost nobody has accused her of deliberately lying about the alleged attack. But the only other possibility consistent with Judge Kavanaugh’s claim of innocence has received very little attention.
That is the possibility that Dr. Ford may have been misled by a sincere but false memory of something that never happened, perhaps created by her marital or individual psychotherapy.
At first blush this may seem far-fetched. But science has shown that implanted false memories are such a common phenomenon in human affairs – and have sent so many innocent people to prison — that fairness to Judge Kavanaugh requires study of relevant portions of Dr. Ford’s therapists’ notes, and perhaps testimony.
It’s too late for that to happen before the confirmation vote. But it will be a sin against the truth-finding process, and fairness, and history, if it doesn’t happen at all.
It probably won’t happen at all unless Dr. Ford decides to make enough of her therapy records public or available to neutral experts, with appropriate redactions of irrelevant and private material, to enable reasonable people to rule out the possibility that her sincere testimony was derived from a false memory arising out of therapy.
It would be understandable if Dr. Ford continues to keep her therapy records secret for reasons of privacy or for fear that Republicans would twist and distort them.
But she might also wish to do what she can to remove as much doubt as possible about the accuracy of her accusation. And roughly half the country, or more, still has doubt.
Dr. Ford has said it was in therapy that she came to understand that the alleged assault left a lasting trauma in her life. But she and her lawyers said they would release her therapy documents only if Dr. Ford was interviewed by the FBI as part of its investigation of the allegations. She was not interviewed, however.
Kavanaugh’s accuser arguably waived her therapist-patient privilege by giving or showing selected pages of notes to The Washington Post.
While her lawyers have told Judiciary Chairman Chuck Grassley that the notes contain “private, highly sensitive information” that the committee does not need, Grassley has insisted that they “are central to the credibility of Dr. Ford’s allegations.”
Elizabeth Loftus, one of the nation’s leading experts on memory, and especially on the elicitation through therapy of both true and false memories, explained (with two co-authors) in 1996 why such records are vital to the truth-finding process:
“As increasing numbers of people have had to defend themselves in criminal proceedings against sexual abuse allegations, a curious problem has emerged. Because accusers often recover memories of molestation in psychotherapy, a professional relationship that in many jurisdictions is privileged by law, the defendant is at a distinct disadvantage in refuting the charges brought against him….
“To defend successfully against these allegations, one must have access to the clinical record to evaluate the extent to which the therapy process itself may have created a complex web of unsubstantiated or unverifiable memories and beliefs about prior life events as traumatizing as sexual victimization .” (Emphasis added.)
There has been much scientific discussion about the extent to which the therapy process itself – especially if it includes hypnosis, which Dr. Ford may or may not have had – can create false memories and beliefs. And there have been notorious examples of innocent people being sent to prison based on implanted memories of sexual abuse that were later proved to be false.
More broadly, a 2004 book by David Spiegel and Herbert Spiegel stressed that “[t]here is no way of knowing whether any memory reported, via hypnosis or not, is accurate in the absence of external corroboration.” This reflects something of a scientific consensus that the apparent sincerity of any witness, including Dr. Ford, proves very little, as does the absence of any apparent strong motive to lie.
The Spiegel book stresses that “information may be implanted or imagined [and patients] may have such an intense experience that they may enhance their conviction that their memories are veridical regardless of their accuracy — the problem of ‘confident errors.’”
Dr. Ford has indicated she has always remembered the alleged attack by Kavanaugh. But her therapy records could corroborate when she first remembered it and how she came to identify Judge Kavanaugh as her attacker.
She has said that she never disclosed the alleged 1982 assault to anyone until she mentioned it during marital therapy in 2012. She has also testified that the notes of her 2012 marriage therapy and 2013 individual therapy do not name Kavanaugh. Her husband has said she named Kavanaugh to him in 2012.
That was the same year that the media were widely reporting Judge Kavanaugh as a likely Supreme Court nominee if a Republican won the presidential election.
“If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh,” Jeffrey Toobin wrote in the New Yorker on March 26,2012. He said Kavanaugh’s judicial opinions were so “startling” and “bizarre” as to make him a mortal threat to liberal causes and policies.
Some Republicans speculate that such publicity may have put Judge Kavanaugh on Dr. Ford’s mind when she was in therapy.
This speculation is no doubt inspired by partisanship. And the therapy records might refute it. Or might not. It would be nice to know.
