Law & the Courts

As the Gang-Rape Claims against Kavanaugh Fall Apart, Will Anyone Rethink His Approach?

Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., September 27, 2018. (Andrew Harnik/Reuters)
The rush to believe any allegation, no matter how implausible, does an injustice to the accused.

Of all the dispiriting things that have occurred since the start of the Brett Kavanaugh sexual-assault controversy, the overwhelmingly credulous and furious response to Julie Swetnick’s gang-rape claims is perhaps the most disappointing. Her claim was wildly implausible on its face, featuring her repeated attendance at parties where women were being gang-raped, personally witnessing Kavanaugh in line to rape a woman, and claims that Kavanaugh personally drugged or “spiked” the punch at these parties to facilitate rape.

These things allegedly happened in full view of many non-victim witnesses. There were allegedly multiple victims. Yet the only person to come forward was Swetnick, through none other than Michael Avenatti — lawyer for porn star Stormy Daniels. She didn’t tell her story through a reputable news outlet. She didn’t allow a team of reporters to vet her claims. She used Avenatti’s vast Twitter reach to drop an explosive sworn declaration on Twitter, the day before Kavanaugh’s Senate testimony, and the world responded exactly as Avenatti hoped it would.

All the Serious Outlets covered it. All too many of the Serious People rushed to defend its claims. The ranking Democratic member of the Senate Judiciary Committee asked Kavanaugh about it at his hearings. When I tweeted my skepticism of the claim, based on its facial implausibility, the response was furious. Blue checkmarks lined up to scold me. For example, here’s CNN’s Bill Weir:

Political comedian Brett Hamil:

Reporter Josh Moon, whose Twitter bio reads, “Making America like facts again”:

And here was Vox’s Liz Plank:

ABC’s Matthew Dowd, after tweeting, “David, come on. You’re better than this,” referred me to a 1990 Washington Post article about house parties, an article that did not reference gang rapes:

Soon enough, as I wrote yesterday, Swetnick’s story began to fall apart. The Wall Street Journal contacted “dozens of former classmates and colleagues” and couldn’t find anyone who could corroborate Swetnick’s claims. A previous employer had sued her for defamation and fraud — claiming that she made uncorroborated sexual-harassment claims against two colleagues in a “transparent effort to divert attention from her own inappropriate behavior.” And that’s but one incident among others that cast doubt abut Swetnick’s truthfulness.

Then, yesterday, she went on NBC and even further damaged her credibility. She contradicted the declaration she had released just the week before and substantially watered down the claims against Kavanaugh.

In her declaration, she said that Mark Judge and Brett Kavanaugh “spiked” the punch at parties she attended to drug women to make them vulnerable to date rape:

But here’s what she said to MSNBC yesterday:

SWETNICK: Well, I saw him giving red cups to quite a few girls during that time frame. And there was grain punch at those parties. I would not take one of those glass from Mark Kavanaugh — Brett Kavanaugh, excuse me. I saw him around the punch containers. I don’t know what he did. But I saw him by them, yes.

She also climbed down significantly from another explosive claim in her declaration, that she spotted Kavanaugh waiting in line for his turn in a gang rape:

The story she told MSNBC was, again, substantially different:

SWETNICK: Well, until what happened to me happened to me, I didn’t put two and two together. But I would see boys standing outside of rooms, congregated together. Sort of like a gauntlet. And I didn’t know what was occurring. But I would see them laughing, a lot of laughing.

REPORTER: Standing in lines outside of rooms?

SWETNICK: Not lines, but huddled by the doors, and I didn’t understand what it could be.

REPORTER: And you describe Brett Kavanaugh and his friend, Mark Judge, standing outside a door?

SWETNICK: Yes. With other boys.

REPORTER: So you’re suggesting that, in hindsight —


REPORTER: — you think he was involved in this behavior?

SWETNICK: I would say yes. It’s just too coincidental.

In the space of five days, the story changed from spiking or drugging punch to giving girls cups. It changed from standing in line to gang rape a girl to standing outside a door, laughing.

Moreover, when MSNBC tried to corroborate her story, Swetnick “provided four names of friends she says went to the parties with him. One of them says he does not recall a Julie Swetnick. Another of the friends she named is deceased. We reached out to the other two and haven’t heard back.”

While we should dismiss Swetnick’s claims as lacking credibility, we cannot allow this incident to disappear from public consciousness. The furious response to those who questioned Swetnick’s claims, and the credulousness that led even Senator Dianne Feinstein to ask about them at a Senate hearing says something disturbing about the extent to which “believe women” — combined with partisan hatred so intense that we’re willing to believe the worst about our opponents — can sometimes morph into “believe anything.”

And it’s not just “believe anything”; it’s “believe the wildest of claims while also insulting anyone who dares dissent.”

In the face of intensely emotional topics such as alleged sex crimes (or, really, any crime that violates the human body), it’s vital that we slow down, drain our response as much as we can of partisan bias, and consider not our own experience but rather the evidence in front of us. And we also have to consider that other people of good will can consider the same evidence and reach different conclusions. We can honor the pain of victims (and honor the pain of the wrongly accused) without allowing that pain or injustice to dictate conclusions about guilt or innocence in any case.

And we also have to consider carefully the definition of evidence. A think-piece about the cultural climate of the early 1980s (though interesting) isn’t evidence. John Hughes movies aren’t evidence. Articles about parties written years after the allegations that don’t mention date rape aren’t evidence. The most harrowing of personal experiences — though valuable and courageous to share — aren’t evidence.

We cannot take leave of our senses. We have to realize that just as there is a human being of immense worth and value who is making a claim that she was horribly wronged, there is a human being of immense worth and value who is the target of that accusation. We must do due diligence, for the sake of the accuser and the accused.

Last Wednesday, a man — a father and husband — was publicly accused of gang rape. The claim was implausible when it was made, and it has dramatically diminished in credibility since. Now, no reasonable person should believe Swetnick’s claims. Our times are too polarized to expect any apologies, but can’t at least some of us — especially those of us blessed with a voice and a platform — pledge not to “believe anything” when a person’s family, career, and good name are on the line?


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