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Sex abuse attorneys explain what Christine Blasey Ford will face on Thursday

“Everything she says, does, did, is going to be dissected down to the finest detail.”

by Carter Sherman
Sep 25 2018, 3:15pm

Christine Blasey Ford has agreed to appear Thursday in front of the Senate Judiciary Committee to testify about her allegation that Supreme Court nominee Brett Kavanaugh sexually assaulted her at a high school party in the 1980s. And while conditions are still being set for that hearing, attorneys who represent sexual abuse victims agree: Preparing to answer questions about an alleged sexual assault is both incredibly intense and, possibly, deeply traumatizing.

Sexual abuse survivors who come forward in civil or criminal court must often get ready for cross-examinations from ferocious defense attorneys, who may be able to ask about survivors’ past psychological history, press for minute details about an event that happened years ago, and try to discredit victims when they stumble. As a woman whose words threaten to implode a Supreme Court confirmation process, Ford will probably face even sharper questioning.

“Everything she says, does, did, is going to be dissected down to the finest detail,” said Guy D’Andrea, an attorney at Laffey, Bucci & Kent LLP who’s spent years representing survivors of sexual abuse in Philadelphia. “And with the entire country, and potentially — not to be grandiose — but the world watching, that level of pressure, to a survivor of sexual assault, it’s almost unimaginable.”

Read: Watch the most outrageous questions senators asked Anita Hill in 1991

Kavanaugh has denied Ford’s allegation that he drunkenly pinned her to a bed and attempted to take her clothes off, as well as Deborah Ramirez’s accusation that Kavanaugh exposed his penis to her in college. Since the White House and Republicans have resisted calls for an FBI investigation or to include other witnesses on Thursday, as Ford has requested, senators will only be able to rely on Ford and Kavanaugh’s words to piece together what happened at that alleged party.

When D’Andrea first meets a client in a sexual abuse case, before the client retells the story of their assault, D’Andrea starts off with a simple gesture: He asks them if he can shut the door to his office. That request, he said, lets the client know that he understands how closing the door could scare an abuse victim and wants to respect their wishes. Establishing that trust with a client, letting them know you believe their story, is essential to preparing them for what will happen next: cross-examination by a lawyer who’ll act like they don’t believe a client’s story.

And that lawyer will ask the client about everything, with sometimes humiliating precision.

“‘Was that with the right hand or the left hand? Was it with all five fingers?’ And you’re like, ‘Well, I wasn’t cataloguing what hand was on my genitals,’” D’Andrea mimicked a cross-examining attorney. “They’ll just keep asking, ‘Well, how do you not know? I thought this was the most traumatic thing that ever happened to you.’”

Only one in three sexual assaults are reported, according to the Rape, Abuse & Incest National Network. That’s often because people fear being not believed, are ashamed, or blame themselves for what happened, said Steve Estey, who’s spent decades working on sex abuse cases as a founding partner of the San Diego, California-based Estey & Bomberger.

“For them to step forward with their story, it takes a lot of courage,” Estey said. “Then to get cross-examined, and be called basically a liar on it, it’s very, very difficult.”

To get clients ready, both D’Andrea and Estey said they’ll conduct mock cross-examinations of their clients. These prep sessions can last hours, if not days, D’Andrea said, time that Ford’s lawyers lack. Estey will sometimes take clients into a real courtroom in order to make the experience feel as vivid as possible.

The questions defense attorneys can ask at trial can vary across states, counties, and judges, D’Andrea said. While the United States has adopted a federal “rape shield law” that generally stops defense attorneys from introducing evidence about victims’ sexual histories, those protections can differ between jurisdictions; some states give judges more latitude to decide whether evidence involving somebody’s sexual history is relevant.

During depositions, few subjects are off-limits. For example, if a client is trying to argue that an assault impacted their mental health, a defense attorney can use that as an opportunity to delve into their psychological history.

Read: Brett Kavanaugh calls sexual assault allegations a “coordinated effort,” says he won’t withdraw

“There are many other times, unfortunately, where the defense has the right under the law to go into and to pry into areas that are only related in a collateral way to what the claim is about,” said Jeb Butler, who handles sex abuse cases through his work as a partner at the Butler Tobin law firm in Atlanta. “It can get ugly. So, sometimes a lawyer in my role is in the painful position of having to tell your client, ‘Answer the question.’”

It is unclear whether there will be any restrictions on questions from the Senate Judiciary Committee members during the Thursday hearing, as conditions for the hearing are still being set. But there are signs that it will more closely resemble a deposition than a trial.

In 1991, when Anita Hill testified that now-Supreme Court Justice Clarence Thomas sexually harassed her, then-Delaware Democratic Sen. Joe Biden declared, “It is appropriate to ask Professor Hill anything any member wishes to ask her, to plumb the depths of her credibility.”

Unlike a trial, the Thursday hearing will also lack an unbiased judge whose only goal is to ferret out the truth. Though Republicans are still mulling over whether to use an outside counsel to conduct questioning — which Ford’s lawyers say they do not want — their hand-picked attorney will face questions about impartiality.

“In a Kavanaugh-type proceeding, everyone’s got an agenda there. And I’ve seen Congress. They don’t ask questions like lawyers,” Estey said. “The defense attorney’s not allowed to get up and give a speech.”

Having witnesses who can corroborate your client’s account can be essential for a case, attorneys agree. Even if a witness didn’t see the abuse, they may be able to confirm the details surrounding the story — like, say, that the party Ford describes did indeed take place. “I don’t think the needles gonna move on either camp, because you’re just gonna have a ‘he said, she said,’” Estey said of the Thursday hearing.

Regardless of what happens this week, though, D’Andrea is hopeful that the hearing will convince other victims of sexual abuse, who fear being disbelieved and discounted, to tell their story.

“When women or children have seen other people come forward, and have the courage or the ability to sort of be a champion for sexual assault survivors’ rights, it empowers and emboldens people to say, ‘It’s not just me,’” D’Andrea said. “It almost puts a fire in people to say, ‘I can do this too. Look at this woman who had the courage to go before national television media and tell her truth.’”

Cover: Brett Kavanaugh answers questions during a FOX News interview, Monday, Sept. 24, 2018, in Washington, about allegations of sexual misconduct against the Supreme Court nominee. (AP Photo/Jacquelyn Martin)