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Brett Was a Very Bad Teenager

Vivia Chen

September 19, 2018

KAVANAUGH-CONFIRMATION-Article-201809182132-1Some of you will be disappointed and angry with me, but here it goes: I’m not sure what Brett Kavanaugh allegedly did as a 17-year-old should automatically disqualify him for the U.S. Supreme Court.

As you’ve undoubtedly heard by now, Christine Blasey Ford, a psychologist in California, has accused Kavanaugh of sexual assault when both were teenagers in the early 1980s. Reports The Washington Post:

While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.

Ford also told The Post: “I thought he might inadvertently kill me.”

The allegation of sexual assault should always be taken seriously, and there’s nothing to suggest that Ford isn’t being earnest. So, why am I not joining the chorus that’s demanding Kavanaugh’s head on a platter?

First, let me make one thing perfectly clear: His accuser should be heard—as should Kavanaugh—about what happened that summer night. And those at that party, particularly Kavanaugh’s friend Mark Judge, whom Ford also alleges participated in her attack, should testify, too.

That said, Kavanaugh’s alleged behavior needs to be evaluated in context. Not only were Kavanaugh and his friend feckless teenagers, but they were apparently drunk out of their minds. Their alleged behavior was also symptomatic of the era they grew up in and their position of privilege.

As any woman who came of age during the ’70s and ’80s can tell you, girls were expected to put up with a lot of nonsense at parties, in parked cars or darkened movie theaters. And among the preppy set, of which Kavanaugh was a member, that culture of hard drinking and male predatory behavior was normal.

Judge, who was Kavanaugh’s buddy at Georgetown Preparatory School in Maryland, wrote in his 1997 book, “Wasted: Tales of a GenX Drunk,” that “drinking was one of the major forms of recreation at Prep,” reports The Boston Globe. He also wrote about “beach week” at the end of the school year, which he described as a “week-long bacchanalia of drinking and sex, or at least attempts at sex.”

Judge’s recounting squares with what Ford’s classmates remembers about the social scene among the private schoolers in suburban Maryland. In a letter signed by more than 200 alumnae of the Holton-Arms School, which Ford attended, the women write: “Dr. Blasey Ford’s experience is all too consistent with stories we heard and lived while attending Holton. Many of us are survivors ourselves.”

I find Ford’s version of what happened to be believable. But was it attempted rape? I don’t know. As she described it, the attempt was extremely clumsy and almost slapstick (Ford said Judge “jumped on top of them, sending all three tumbling” and that both were “stumbling drunk.”)

I don’t mean to diminish the terror she must have felt, but there can be a fine line between groping and attempted rape. Indeed, how many of us have fought off an overly aggressive guy when we were in high school, college or law school? And, yes, there were times when that groping could have morphed into something much more threatening. To varying degrees, many of us have been victims of attempted rape.

Kavanaugh’s detractors hint that this incident in his youth is indicative of his darker side, that it illustrates his capacity for duplicity—that past is prologue. But I think it mainly shows he was drunk and callow. (I do agree he’s been shifty about his views on Roe v. Wade and a host of other matters, but that has nothing to do with his teenage self.)

Being drunk, of course, is no excuse for a serious crime, but it does explain behavior that might be aberrant and out of character. (For whatever it’s worth, Kavanaugh has been nothing but a gentleman and a scholar, according to women who’ve worked with him).

Which brings me to what I do find troubling about Kavanaugh: His absolute denial that any of this attack could have happened: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

I don’t know how Kavanaugh can speak with such certainty, since he seemed to be a big drinker in high school. Judge said as much in his book, remarking at one point that Kavanaugh “had passed out on his way back from a party.”

I wish Kavanaugh would fess up to that aspect of his past. He would demonstrate more courage and honesty if he admitted that he could have behaved recklessly in his youth or that he simply can’t remember some events because he was dead drunk.

To me, the bigger question isn’t whether he committed the alleged act—horrifying as it might be—but whether he is being forthright about his past.

Many of my friends disagree with my take. They say that the allegations, if credible, warrant his removal as a Supreme Court contender. Younger women, like my daughters (a teenager and young adult), think there should be zero tolerance for this kind of misbehavior in any context. In the #MeToo era, that’s hard to disagree with.

But is it fair to apply this kind of judgment on Kavanaugh retroactively? Indeed, I have a feeling that many men in positions of power are quaking in their boots for what they’ve done in their pasts. And, if we do start applying this standard, where does it end?

Before you know it, there’ll be a steady exodus of men from law firms, banks, corporations and government offices—including the Oval Office.

Come to think of it, maybe that’s not a bad thing.

Contact Vivia Chen at vchen@alm.com. On Twitter: @lawcareerist.



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Another thought, Vivia. If it took Dr. Ford some time to regard the event as a sexual assault, or even attempted rape, where did that idea come from? From a therapist? Perhaps a younger therapist? Or did the reframing of the event occur to her without anyone else's suggesting it?

Oh so rape or at the very least molestation is alright and men are simply playing their role. Seriously? Are we really normalizing such behavior? But it is all right, he must be a decent guy and we should cut him a break (from what?). Unbelievable.

This might be a good time for lawyers to use our law degrees and teach the public about the constitutional rights afforded to the accused. Like the right to confront an accuser, the statute of limitations, and innocent until proven guilty. Whether you choose to believe Ms. Ford or not, every lawyer and every self respecting Bar Association should be flatly stating without equivocation that Kavanaugh is innocent. You might also use this as a teaching moment and hearken back to other teachable moments such as the Duke Lacrosse team. The demonstrations and accusations on campus (and across the country) were no less vitriolic. And, they were all dead wrong. I also used articles like these to teach my daughters (both grown now) that "nothing good ever happens after midnight," do not over drink at a party, always travel with another person, and watch each other. We do not blame the victims and nothing excuses criminal conduct, but you also want to avoid these situations in the first place.

Thank you, Vivia! You got it right.

I'm going to call on my experience of a long-ago period in the world's history, a few years before the one at issue here. First, note that Ms. Ford says it took her a long time to frame the event as attempted rape. That makes perfect sense to me. Back in my own day in high school--attending parties in a privileged suburb with other students from private schools--boys tried to have sex. Period. If there was an event with alcohol, that was their role. What they did was playing their role. Second, in any event, Ms. Ford says someone pinned her down, covered her mouth, AND tried to disrobe her. Is this physically possible? Well, Vivia, you say it was almost slapstick, and it must have been.

Lawyers are eager to expunge the juvenile records of all sorts of miscreants. Why not at least cut this decent guy a break?

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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