Lets say Albert tells me he saw Victor commit a murder 30 years ago.
Victor categorically denies it.
I say to Albert: Do you have any physical evidence of this murder? (Even a dead body?)
Albert: No
I say to Albert: Do you have any other witnesses that can corroborate what you are saying?
Albert: No, in fact some of the people who I say were there say they don’t remember this.
I say to Albert: Where were you when this happened?
Albert: I was at a party.
Me: Were you drinking?
Albert: Yes.
Me: How long ago did this happen?
Albert: 30 years ago.
I don’t actually think Albert has said anything here. All he has is his statement, and he admits that he was drinking. I know drinking alters perception of reality and memory. https://pubs.niaaa.nih.gov/publications/aa63/aa63.htm
Albert has no credibility, and I’m simply going to regard his assertion as “arbitrary”. He has no credible evidence to back up this assertion. Albert’s assertion is neither true nor false. It is simply “arbitrary”. It’s like the claim: “There’s an invisible gremlin on my shoulder, but only I can see it. Now prove that I’m lying.” The onus of proof is on he, or she, who makes the assertion.
“‘Arbitrary’ means a claim put forth in the absence of evidence of any sort, perceptual or conceptual; its basis is neither direct observation nor any kind of theoretical argument. [An arbitrary idea is] a sheer assertion with no attempt to validate it or connect it to reality.” http://aynrandlexicon.com/lexicon/arbitrary.html
If your response is: “You can’t prove Albert didn’t see this murder,” then you’re essentially asking Victor to “prove a negative”. Victor says it didn’t happen. How is he supposed to present evidence of something that didn’t happen, when the person making the assertion hasn’t really presented any credible evidence for it?
Now lets say two people both make an assertion that on two separate, and unrelated, occasions, Victor committed two separate murders. They both admit they had been drinking at the time, and have no other witnesses to corroborate what they assert, nor do they have any physical evidence to back up what they assert. The fact that two people (or three, or four) make completely unrelated assertions doesn’t somehow make any one of those assertions more or less true. You cannot say “A is true because B is true,” and then turn around and say: “B is true because A is true.” I think this is an example of “Begging the Question”. https://en.wikipedia.org/wiki/Begging_the_question
If you could show that Victor had, in fact committed one murder with some independent evidence of that murder, then that probably would be some evidence that he had committed the second murder. This is because we know that someone who does an action one time will tend to act in accordance with a pattern or habit when doing the same action on another occasion. But, you’d first have to put forth some independent evidence that he committed the first murder. Simply using the unsupported assertion that Victor committed a first murder to prove that he committed a second, unrelated, murder, and, in turn, using that second, unsupported assertion of an unrelated murder to prove that he committed the first murder, is bad reasoning.
Now lets say you were accusing Victor of some sort of sex crime, like indecent exposure or attempted rape. Victor says it didn’t happen. He denies it. If a person claims that they had been drinking alcohol 30 years ago when they witnessed this incident, does that hurt their credibility as a witness? Yes. The analysis is the same. If they have no physical evidence of this, and no other witnesses to corroborate their story, then the accuser has made what can only be described as an arbitrary assertion with no credible evidence to back it up.
The fact that a second accuser comes forward and makes an accusation of a separate, unrelated sex crime, where the accuser admits she was very intoxicated, doesn’t somehow make it more or less likely that the other accusation is true. If fifty women come forward making fifty different claims of completely unrelated criminal acts on separate occasions, that doesn’t somehow make any one of those accusations any more or less true unless you can show that at least one of those accusations is true with independent evidence. (In which case you could say the one independently established assertion is proof of a habit.)
Most people will accept my reasoning on the murder, but will want to say that attempted rape is different. They will likely say that women are generally embarrassed or ashamed to report rape, and that this is evidence that a woman, on any given occasion, is telling the truth. This is the fallacy of division. https://en.wikipedia.org/wiki/Fallacy_of_division Even if 99% of the women making rape allegations are telling the truth, that doesn’t mean you can say, in any given instance, that a woman accusing a man of rape is telling the truth. We know that some percentage of women make false rape accusations. https://en.wikipedia.org/wiki/Duke_lacrosse_case So, you cannot simply assume that any particular woman, in any particular case, is telling the truth.
Applying these principles to the case of Judge Kavanaugh, we have two women who admit that they were drinking when each of these incidents happened. I base my understanding of the situation on two news articles, that I recommend you read:
First alleged incident: http://www.waxahachietx.com/zz/news/20180916/kavanaugh-accuser-speaks-out-on-sexual-assault-claim
Second alleged incident: https://www.businessinsider.com/brett-kavanaugh-sexual-assault-yale-deborah-ramirez-2018-9
As far as I can tell, neither of these women has found any independent witnesses to corroborate what they’ve said. Neither of them has any evidence other than their assertion that they witnessed this, and they have less credibility in my mind than Judge Kavanaugh, because they both admit they had been drinking when these incidents allegedly occurred, while Kavanaugh says it didn’t happen. I say “credibility in my mind” because I don’t know either these women or Judge Kavanaugh personally, so I only have the information contained in news articles on which to assess credibility.
The third accuser has prepared an affidavit. https://www.cbsnews.com/news/kavanaugh-accuser-michael-avenatti-reveals-julie-swetnick-today-2018-09-26/
She was careful to never say whether or not she had been drinking alcohol at the parties where she allegedly saw Judge Kavanaugh assault and gang rape women. The question of alcohol consumption is highly relevant for determining her credibility as a witness, and the fact that she was at a “party environment” suggests to me that she probably was drinking alcohol. If she had NOT been drinking, then it would make sense to put that in her affidavit, because it would make her much more credible.
If she were subject to cross-examination, the FIRST question I’d ask her is whether she had been drinking alcohol when she witnessed these things, and how much? That goes directly to her credibility given the memory impairing effects of alcohol.
Additionally, she states in line 14 of her affidavit that “I am aware of other witnesses that can attest to the truthfulness of each of the statements above.” But, she doesn’t say WHO those people are. Why not? It would instantly make her story more credible if she gave names of other witnesses who could corroborate what she’s saying. The fact that she doesn’t do so makes her story very suspicious.
The fact that she was willing to sign an affidavit, and it is therefore “sworn”, doesn’t make it more credible. Since the affidavit is not being used for any lawsuit or for any legal proceeding, I doubt she could be prosecuted for perjury, if it were shown she was lying. If anything in the affidavit was shown to be a lie, none of the lies would be considered “material”. For instance, someone could sign an affidavit saying “I swear that the sky is red,” and then post it on the Internet, but I don’t think that would make them guilty of perjury because the statement “the sky is red”, while a lie, isn’t material to anything from a legal standpoint. (There is no lawsuit where the color of the sky is an issue.)
Given the fact that she doesn’t say if she was drinking alcohol when she witnessed these things, and given the fact that she claims there were other witnesses, but didn’t name them, I regard her entire affidavit as suspect. Any reasonable person who wasn’t lying would know that others would want to know these things and would state them in the affidavit.
She has yet to give an interview. This is also very suspicious and makes what she is saying suspect. It appears that she isn’t willing to let reporters ask her any of the basic questions that are raised from reading her affidavit. Although, I’ve heard, she will give an interview on Sunday for a pay cable channel. (This also sounds strange to me.) At any rate, I hope she is asked some of these basic questions.
These are the three accusers that have come out to date. I find none of them to be credible based on the news stories I’ve seen. I am not saying they are lying. I’m saying they have not presented any credible evidence for what they are saying. I therefore regard their statements as “arbitrary” -having no evidence to back them up. Before I’m prepared to treat a man as a criminal in my personal or professional life, and denounce him and avoid him, I need some level of actual evidence to demonstrate that what the speaker is saying is true.
The other issue in my mind is: Does any of this matter?. All of these incidents of alleged rape or attempted rape are well outside the statute of limitations for prosecution. The only way this matters is in Judge Kavanaugh’s advise and consent process by the Senate. Senators can hold hearings on the issue, but where do they draw the line? Do they have to have a hearing on every outlandish accusation made by any person about a nominated Federal Judge before they can perform their advise and consent role? What if someone claimed Judge Kavanaugh was an alien sent here to take over the world? Should an obvious nut be allowed to testify? Senators have to assess credibility of potential witnesses based on news reports like the ones I’ve cited. Then they have to come up with some standard of “probable cause” on who to have as a witness, and I think, based on that, no reasonable Senator could even regard these women as credible enough to testify at a hearing.
