Philadelphia-area experts react to Kavanaugh’s defiant defense
The Inquirer and Daily News invited four area experts to watch the hearing and offer real-time perspective.
As the nation tuned in Thursday to watch Christine Blasey Ford and Brett Kavanaugh testify before the Senate Judiciary Committee in Washington, we convened a panel of experts to watch and offer real-time perspective about the hearing.
How did the committee tackle Ford's memory lapses? What is this experience like for a trauma survivor? Or one accused of sexual assault? How credible were the two of them?
The Inquirer and Daily News invited four area experts:
Carol Tracy, executive director of the Women's Law Project
Stewart Ryan, trial lawyer at Laffey, Bucci & Kent and former Assistant Chief of the Trials Division in the Montgomery County District Attorney's Office where he prosecuted Bill Cosby
Robin Fierstein, licensed psychologist who specializes in trauma
Mary Onama, executive director of the Victim Services Agency in Montgomery County
Talk to me about the credibility of these witnesses. What are some overall takeaways there?
Ryan: One of the things I think is great about the jury system is that you have 12 people sitting in a box, looking at a witness and using nothing more than their common sense or gut to figure out whether or not someone's telling the truth. And there were a couple moments during Dr. Ford's testimony where I felt that. I think the statement about the laughing being burned in her memory. There was another moment about asking her about the "boys will be boys" and she answered the question… I don't think there was a single question that she avoided. She might not have been able to answer all the questions, but she tried. You cannot say the same for Judge Kavanaugh.
But didn’t he face tougher questioning in some ways?
Ryan: I think both were challenged. Dr. Ford was challenged on the polygraph, the fear of flying, the map. But the tone that Dr. Ford has I think echoed the tone that the prosecutor used, and the same can be said for Judge Kavanaugh, he came out guns blazing. I think the senators reacted.
Fierstein: Even if it might not come across that she might not have been challenged through the questions, she started out by having to share all about her sexual assault, which I think is one of the largest challenges out there.
What are your major takeaways? What might stick with you? What are some moments that you think will define this?
Fierstein: For me, I think just think of her reaction. I've sat with so many clients. Part of treatment is writing a trauma narrative and then reading it over and over, and there's nothing dissimilar from how they react as compared to how she reacts, knowing that there's this whole range of reactions. It was just so consistent with anything that I've ever seen in my experience, and the memory and the visceral reactions.
Ryan: I had a hope that maybe there would be some independence, and I think having observed thus far what I've seen, it's nothing more than the political theater that a lot of people expected. I think that the takeaway here is probably going to be Judge Kavanaugh's opening speech, because I think that reset the table.
Tracy: It just became very, if you'll pardon the expression, I would say it was totally testosterone-fueled.
Kavanaugh and Ford and the way that they testified is such an interesting contrast of how men and women might approach getting the attention of a room in different ways. And so I wonder if the tables were turned, what the response would have been if we saw an alleged victim coming in with the sort of anger or emotion that we saw from the accused.
Tracy: She was polite. She was deferential, didn't interrupt, asked for clarification and he was bombastic and aggressive, interrupting. And I'm not saying either is appropriate. But clearly, they're very, very different and very gendered.
Onama: And also, the professional differences also do play into that. She's in a helping profession, he's a lawyer.
Anything final thoughts?
Fierstein: He was talking about how this is going to impact people or families for decades. I think of that impact for victims. And how, much like you said, less likely they might be to speak out.
Below is a transcript of our conversation with the experts during the first 15-minute break in Kavanaugh's testimony.
Kavanaugh said during his opening that his mother’s trademark line was ‘Use your common sense, what rings true? What rings false?’ So what about you guys? What rings true and what rings false?
Ryan: I think that the emotional display was appropriate for the circumstances and to a certain extent goes to his credibility and it was a powerful speech. It wasn't challenged. So you have to wait and see what happens with that.
And I would expect someone of his caliber to give that sort of speech. I would expect other individuals who have seen their downfall to be able to give a similar speech and provide the same sort of character references. What I'm waiting to see someone challenge is: he seems to hang his hat on a couple different things.
One of them being this [Leland] Kaiser and her affidavit, and the fact that she says she does not know him and she does not remember any sort of a party that they're describing, and yet by his own testimony, he just said that he does know of her and it's certainly possible they met or came in contact with each other. You can't discount that possibility. And I think those two things are diametrically opposed.
Fierstein: One thing that stood out to me in terms of ringing false: One of the questions was, Has anyone ever told you about something that happened that you forgot? I mean, just in life we all forget things, and it's really hard for me to imagine that he remembers 100 percent of things that people have ever told him he did unrelated to drinking.
He was a little more emotional than I expected. Would you agree with that? Can you sort of compare and contrast how he came across vs. how Dr. Ford came across?
Tracy: I think Dr. Ford was frightened. And I think he was angry. And they have very, very different emotional reactions to it and she has nothing to gain. I think that's one of the important considerations here. She has absolutely nothing to gain here and a great deal more is at stake for him.
Onama: Another thing that struck me was when he said 'this nonsense,' almost like, that's a level of arrogance. It seems that this is kind of dismissing the whole thing.
Ryan: The talk about his daughters was appropriate, that was extremely emotional and when it came to his family it was like his whole life is being examined.
And he's a political Washington D.C. professional … so it's not surprising that he was able to deliver that sort of speech because I would imagine that's sort of the mindset that you have to have to live in a world like that and succeed.
One of the things he said the most forcefully was when he said, ‘We’re in a dangerous new place if everyone who drinks beer is presumed guilty of sexual assault.’ Knowing what you know about sexual violence and how substances are often part of that, what’s your response to that? Can we go too far in vilifying people who take part in any sort of drinking or substance use?
Tracy: I think it was completely absurd. I mean, I think that there's no equation … sexual assault is — particularly if it's by a serial perpetrator — it's very strategic, and getting someone drunk or drugged is part of that strategy, not having a couple of beers. I think saying that was completely absurd and also so dismissive.
Mary: We also know that too much alcohol creates some risk factors for the victim …
Tracy: But it doesn't make someone a rapist.
Ryan: I agree with the point that he's making about how toxic rhetoric can be. I think it was well stated. I think the real question is, while that point might be well taken in this political forum, the right way to get to the truth of what occurred is fact-finding. For example, you'll get the question from Mitchell about 'Well, how much beer is too much beer?' And he says something about the [blood-alcohol content] chart, and that was that. Is it going to be softballs from her and then grandstanding from the other side?
So much of this has been about an investigation that didn’t happen. Is that a good strategy?
Tracy: If I were in his shoes, I'd want another investigation to just totally, totally clear his name. He's saying his family is destroyed. I hope they're not destroyed, but this is going to live with him, even if he goes to the Supreme Court, because he's never had an investigation to clear his name.
Kavanaugh repeatedly pointed out that that he’s been in the public sphere for 30 years, working for Ken Starr and in the Bush White House. He makes a point these allegations didn’t come up at any point.
Onama: It is possible for a victim to not say something until it reaches a certain point in their life and maybe through their own career.
Below is a transcript of our conversation with the experts during the second 15-minute break in Ford's testimony.
Any idea where the prosecutor was going with that last line of questioning, particularly about the details of the polygraph test?
Ryan: Just based on the way that she's been asking questions, my expectation was for her to have something. Of course if she doesn't, it could be because she wants to know the answer, could be because there's some other purpose … The question might be just as important as the answer.
Tracy: My sense of it was she wants to know who paid for it.
What do we think about the questioning, particularly from the prosecutor? They’re not going to talk about the actual assault itself much beyond her opening statement. They’re really sort of avoiding coming across as grilling her.
Fierstein: And yet I feel like they're doing it. Maybe not grilling her, but I think like one thing that I was thinking of even from the beginning is: Her first question after those five things to clarify was asking if she drank any alcohol. I know I talked about rape culture, victim blaming … I just feel like there are these kind of like passive comments that she's making, that she's not grilling her and yet she doesn't feel particularly kind.
Tracy: At the same time, I think those are reasonable questions to ask, to find out what's your state of mind, flaws and memory and all of those kinds of things. And it turns out she answered very definitively. I think many of the questions are fair and the tone is taking on that cross examination.
Ryan: It's rare that there's that Perry Mason moment you get somebody to admit all the wrongdoing they've ever done. I think when you're cross examining someone you build and attack credibility around the edges, and that may be what she's doing.
What do you mean around the edges?
Ryan: You talk … about things that you know you can prove someone is telling the truth about or that they're not telling the truth about. That's of course the challenge with not having an investigation.
Do you think that that’s why she brought up the issue with the flying? For example, you know, probably a fair assessment to say, ‘OK, you have a phobia flying, but it was OK when you’re going on vacation.’ So would you suggest that the prosecutor might not actually care about whether she has a phobia of flying, but more or less goes to overall credibility?
Ryan: Yeah, that's exactly it.
Tracy: Connected to that, it's also to make it partisan. To say 'You just want to delay these hearings. That's why you came up with that phobia present.'
Ryan: That was a great moment when her attorney essentially told her not to answer the question from, I think, Sen. Grassley … and she essentially ignores advice and then she answers directly and she explained 'I just did not understand it.'
Tracy: Very authentic.
Are you surprised at all about how she’s sort of coming across and going along with that? I’m curious how she seems compared to Anita Hill for those of you who may have seen or remember that, because their demeanor seems different me.
Tracy: Their mistreatment of Hill was so, so profound, the clear interrogation of her to the whole demeanor of the committee … and she didn't have any example to look at to be prepared for what came at her, but she remained as I recall, very, very composed throughout all of it.
That’s kind of what I was getting at. What I’ve seen of Anita Hill, she was almost more rigid than she was emotional.
Tracy: Yeah, and she's a lawyer, right, and lawyers aren't used to being on the witness stand … But this is a far more serious allegation that she has made.
Fierstein: So I've spoken to clients when they're going to court and some say I would do everything to not cry. I don't want to show any emotion … others feel unable to manage it and kind of everything in between. And I think it just shows that authenticity, she's really trying to I think hold this really big weight on her shoulders and share all of this information.
I think one of the senators had mentioned something about retraumatization. Can you talk about what you’ve seen in victims of sex crimes that you’ve worked with who have had to go to court and relive that experience? What happens during that experience?
Fierstein: It's about power and there's this loss of control. So there is that piece that can sometimes feel empowering and everything else that comes along with it, but often your sexual history like your whole background is put out there and that can be terrifying the entire time.
Tracy: I think it has a lot to do with how the person has been preparing. Certainly knowing prosecutors who have sat down with people and said you know it's going to be tough.
Ryan: Preparation is so important. You try your best to tell them what's coming. I also as a matter of course for every single trial, I have tried my best to get the person into the courtroom and sit them in the chair and ask them questions. So I think it is all about preparation.
Dr. Ford got a little choked up, particularly when I think it was Senator Blumenthal talking about how brave she is and the courage to come forward. What do you make of that?
Fierstein: I can imagine, you know, perhaps feeling a lot of things. I think a piece of that is maybe feeling heard. I think also I'd imagine that just brings up still a lot of shame of everything that's happened.
Tracy: And I would think there's also a little bit of I wish I could have done that at the time, which could be winning and we wouldn't be here now.
I was really struck when she was talking about the aftereffects of what had happened. She said she struggled even to have friendships with men that she was going to school with. Is that a common occurrence and why does trauma manifest itself in that way?
Onama: Rape victims struggle with sexual intimacy because of memories and experiences … and it can happen in so many different ways. Rape victims who have been affected in such a way that they cannot build trust. They cannot really have meaningful intimate relationships because of the flashbacks of the experience
Tracy: It's also really important to remember that it manifests itself so different in so many people. That's what we're fighting against in this work, is the sense of what that should look like. 'She should be terrified. She should report immediately. Should be crying. She should be hysterical. You know, she should have had a knife at the throat,' and knowing that some people have absolutely no effect whatsoever. Others are very emotional.
The conversation around the FBI investigation is interesting in part because, as the chairman pointed out, the FBI is not going to draw a conclusion. They’re not going to make a credibility determination. So even if there is an investigation, isn’t it still a ‘he said, she said’ situation anyway?
Ryan: No. Whether it's a document, whether it's a person coming forward, if they were called on either side, any person that is going to corroborate what their account is, that no longer is a he said, she said. The other thing is, with an investigation, you never know what you're going to come up with.
Tracy: That process, as it stands right now, is designed to make it a 'he said, she said.' This hearing is destined to turn into that.
Below is a transcript of our conversation with the experts during the first 15-minute break while Ford testified.
I have some sort of specific questions. But I’m curious if anybody has any sort of initial reactions in terms of how Dr. Ford came across and whether there any major sticking points that stick out.
Onama: The major sticking point for me was them saying — instead of using the word "confidential," the word "secret," which really points to suspicion and you're hiding something. And that in itself is the whole victim doubt that is put there. So, that person will say 'well, you know she's probably not OK in the head.' I mean, one lawyer who was a victim of sexual assault in college said that oftentimes the methods that they use is either the woman is a nut or a slut. Those are the two things that they do for defense of the person who has been accused.
Ryan: At this stage, I think there were two important things. First, being that what you said about it being a confidential statement initially and then essentially being forced to come forward. And it's critical. The way that you have to do this and put it in context because no person should be made to come forward with an allegation like that. It's not fair to do so.
I personally can't make any sort of credibility assessment but so far, I think the most powerful thing she said was, I think, in response to Senator Leahy, about her strongest memory being the laughter, because from my perspective, what she was saying in that moment was leaving aside the trauma and terror of the assault and thinking about the humiliation of having the people who are assaulting her laughing, and that is burned in her memory. And I think that is something, I don't like to use the word "classic," but you know that kind of describes when someone then leaves that moment and tried to blame themselves are asked what they've done wrong.
Robin, is that is that something that you found in working with patients who have had traumatic experiences?
Fierstein: Yeah, absolutely. That's one of the things that really stood out to me as well. I just think so much of that shame that we really often hear about and you know, literally can watch. There were times and he's talking details that you could watch her, you know, kind of bow her head and just see — though maybe her face continued to look composed — could see that just to talk about it and bring it up and literally watch her shame response happen. I think that is absolutely a strong piece.
I very much agree with everything you said and kind of even how they started out talking [about] how she had so much time, she could have spoken about this. She chose not to bring it forward, like just starting with that victim shaming, victim blaming, kind of reinforcing that rape culture.
I’m kind of interested in this idea of it was a case of mistaken identity. And her response, when she said it’s “basic memory functions” and then went on to describe the science behind that. No. 1, I’m curious, was that accurate? And No. 2, how do you think that plays and how does that make her come across?
Fierstein: Traumatic memories [are] more kind of coupled with emotions, and that area of the brain and we might have memory for every single excruciating detail of what happened in the trauma or perhaps you don't have anything because you've dissociated, or there might be kind of certain pieces that stand out to you, and that could be details of the trauma that could be sights, smells, sounds.
I was also really struck as she described the layout of the living room just how like that was so encoded in the brain.
Tracy: I remain incredibly offended [that] these men … that their bias is so great that they know they can't ask a respectful question … That to me is extraordinary. It's quite clear [Arizona prosecutor Rachel Mitchell] is being very clear and sensitive and chronological, but there's no reason that a Republican man can't ask a question …
I thought that the whole process she's gone through, because she's had this monkey on her back, what she called being 'haunted episodically,' that she wanted someone to know about it … [But] it seems to me that she really, really wants to confront what happened there because she can't get rid of it.
Fierstein: Who would want to be there? It's such a humiliating and terrifying experience when it happened. And that doesn't go away. PTSD is a type of anxiety, and anxiety is maintained by avoidance, and often that happens — we avoid because it feels terrible, whatever we're avoiding whether it's a traumatic memory or heights. It's just too distressing …. I thought of that so much as I know she talked about claustrophobia.
Ryan: I can appreciate supplying her professional knowledge to the situation, but I bet if anybody went on Twitter right now, there are people saying that she's using her professional background in order to try and build her credibility.
I do want to talk a little bit more about memory. She has such clear memories of the sound of the men going down the stairs and when the music was turned up and things like that, but doesn’t remember necessarily where this took place, and there are some other details that she doesn’t remember clearly. What can you say about how memory associated with traumatic experiences works in that way?
Onama: I think traumatic experiences create an environment in which the victim has to kind of protect their psyche. Therefore certain experiences become more vivid, like for example the hand over her mouth. I'm sure if somebody even tried to do that to her now, it would just trigger that memory. So that is one way that trauma gets put it in the memory.
Fierstein: I think there's so many different reactions during a trauma … We often talk about the fight-or-flight response is very much about survival, but really what often happens in trauma is a freeze response where we're just completely paralyzed and overwhelmed by everything.
And you know, so often you might hear about someone who was being raped or attempted rape of any kind of assault and that someone might say 'well why didn't you run, or why didn't you use this weapon?' All very victim blaming. The reality is our bodies just shut down, and sometimes that's what we need to get through the trauma and actually when our bodies are in you know this freeze response.
Tracy: I once worked with a rape victim in Philadelphia, a horrendous serial event, and she escaped from him. She was in one place. She remembered being assaulted there and the next thing she knew, she was on a highway flagging down someone and could not remember how she got from one place to another.
And you know she was in significant therapy trying to see if that traumatic amnesia, because sometimes it does come back in flashbacks.
Ryan: There are significant concerns about process … but something like that, not remembering how you got home is something that I saw frequently, and I think if there's someone who doesn't understand the science behind it, you would say, 'Well, how could you not remember how you got home?' Whereas if you brought someone educated in that field to help, that makes a huge difference.
I do want to talk about the sort of process. This isn’t like being under direct examination, because we’re having a chronological recounting of events mixed in with five minutes of sort of big picture questions coming from the Democrats. What sort of impact does that have on a witness, just sort of jumping back and forth between minor details and sort of bigger picture?
Ryan: Just to go back to my experience … just talking to someone to get them comfortable … I don't think it can be understated, that aspect of just trying to build a little rapport. And I appreciate what the prosecutor started with, just wanting to get sort of a baseline for easier statements and make sure they're accurate, but I think the way to start something like that is to just have a conversation.
But, and I'm not criticizing, it doesn't seem like the process is allowing her to be that … it's disruptive.
You said a conversation. What do you mean by that?
Ryan: When I speak to people, I'm trying very hard for us to not jump right into what occurred. I literally just ask people about their background, telling them about my background … I think that's a tremendous way to start speaking to a survivor.