Sarah Holder is a staff writer at CityLab covering local policy, affordable housing, labor, and technology.
As senators demand an FBI hearing, Maryland legislators are calling for county police to investigate the Supreme Court nominee. Here’s how they could do it.
It was “horseplay,” some have claimed. It was a youthful indiscretion committed decades ago, others have said, urging forgiveness. But the attempted sexual assault California professor Christine Blasey Ford has alleged Supreme Court nominee Brett Kavanaugh committed in 1982 could have been, if proven, a crime. In a Senate Judiciary Committee vote on Friday, Jeff Flake asked for a one-week delay before the full Senate votes on Kavanaugh's confirmation, allowing time for the FBI to launch an investigation. But regardless of whether FBI action proceeds, local or state police could investigate, too.
This week, 11 representatives from Montgomery County in the Maryland House signed a letter calling on the Montgomery County Police Department to do just that. Local police could, they say, probe Blasey Ford’s claim that, at a high school house party in Montgomery County, Maryland, she was pushed into a room by Kavanaugh or his friend Mark Judge, then pinned to a bed by Kavanaugh, who attempted to remove her clothing as he lay on top of her. Judge allegedly alternated between egging Kavanaugh on and telling him to stop as he attempted to assault her. Before more could happen, Blasey Ford says, she fled the house. But she says she remains traumatized today.
On Thursday, in Blasey Ford’s sworn testimony to the Senate Judiciary Committee, she relived the incident again in detail. Kavanaugh denied the incident entirely, claiming that his handwritten 1982 calendar shows that the party in question never even happened.
Blasey Ford has not pressed charges, nor has she indicated a desire to do so: She says she’s sharing her story not to lock Kavanaugh up, but to offer the country context about his character before Congress votes on whether to confirm him to the country’s highest court. She requested an FBI investigation to corroborate her account more than a week ago. No investigation has proceeded yet.
“The letter came about because a number of my legislative colleagues were very concerned and wanted to do something,” said Ariana Kelly, who represents Montgomery County’s District 16 and was one of the 11 out of the county’s 24 representatives to sign the letter. “There was real frustration we weren’t getting an FBI investigation.”
The letter was crafted carefully, to respect Blasey Ford and other potential victims’ potential reticence to come forward themselves, says Kelly. “We request an investigation be conducted if Christine Blasey Ford or other complainants support such an investigation,” it reads.
The Montgomery County Police Department released a statement Monday saying it had not yet opened a local investigation, and that it wouldn’t do so until (or if) Ford, Ford’s lawyer, or another victim or victim’s lawyer requested it explicitly. “Typically, in a sexual assault case, the cooperation of the victim or witnesses is necessary,” the release states. “As with any criminal investigation, a determination must be made as to the jurisdiction where the alleged offense occurred and the specific details of the event to establish a potential criminal charge.”
Significantly, Ford’s particular allegation may also be barred at least in part by the state’s time limit on prosecutions. Although Maryland is one of few states without a statute of limitations on felony charges of rape and attempted rape, the incident Blasey Ford described—a crime of attempted rape between two minors (a 17-year-old boy or 15-year-old girl)—would have been a misdemeanor in 1982, though it’s a felony now. Crimes prosecuted years later are still punished according to the laws of the time: You can’t be charged for a felony without knowing you’re committing one.
Ford’s allegations could, however, lead to other felony charges that have no statutes of limitations in Maryland, including assault with the intent to rape, according to Thiru Vignarajah, Maryland’s former deputy attorney general.
And since the state representatives drafted the letter and the Montgomery County Police deflected, more victims have come forward with other allegations.
On Wednesday, Julie Swetnick, who grew up in the Washington suburbs, came forward with a statement alleging that Kavanaugh was present at parties where there were “gang rapes” and spiked alcohol to lower women’s inhibitions, and that she was raped at one of them. She, too, requested an FBI investigation of her claims.
Also on Wednesday, in the evening, Republican members of the Senate Judiciary Committee revealed they had interviewed two men who claimed that they, not Kavanaugh, assaulted Blasey Ford. “The news that broke [Wednesday] night is even more concerning to me,” said Kelly. “The Senate allegedly has two men who confessed to the alleged crime and we don’t even have their names: The police should start with them.” She and others have also encouraged the Senate to talk to the key witness, and alleged accomplice, Judge.
The mounting accusations against Kavanaugh have empowered other women to come forward with stories of sexual assaults committed in the ‘80s, and to speak frankly about their unwillingness to report incidents earlier for fear of doubt and retaliation.
To the man who assaulted me in the basement of that house decades ago:— casey mooney (@casey_connects) September 20, 2018
I learned this week that there is no statute of limitations for felony sexual assault in Montgomery County, MD.
I sincerely hope your nights will be as sleepless as mine as I consider my next steps. /end
For Ford, Swetnick, and many other women unconnected to the Kavanaugh case, the question remains: What happens when allegations first come to light decades later? And how hard is it to pursue these kinds of challenges to the full extent of the law?
For an attempted assault case in Maryland like the one Blasey Ford describes (and that two anonymous men have apparently confessed to committing, but whose accounts Blasey Ford has dismissed); or the multiple instances of gang rape that Swetnick details, the proceedings would typically begin at the local level, with the Montgomery County Police Department or the state’s attorney’s office—no matter how late the incident is reported, and no matter whether the end-goal is prosecution.
In fact, it’s exceedingly rare for an assault to be reported in the days or even months following it: According to RAINN, 60 percent of assaults are never reported to local police at all. “States with long statutes of limitations—or states like Maryland that have no statutes of limitations for felonies—have made an affirmative decision that credible allegations should be taken seriously even when they arise years after the crime,” said Vignarajah. “And that survivors and witnesses may not come forward at the time of the attack but still deserve justice.”
Virginia, North Carolina, West Virginia, Wyoming, and Kentucky are the other states in which the time restrictions for reporting these sexual crimes have been lifted. (If DNA evidence is introduced, more than half of states make statute of limitation exceptions—but rape kits are only used if rapes are reported almost immediately, and many of the kits that are used are piling up without being analyzed). The #MeToo era has seen states extending statutes of limitations, too: Last October, Montana widened its window for reporting sexual abuse to 10 years after a victim’s 18th birthday and in November, Oklahoma lifted its statute of limitations entirely for certain cases in which a minor was raped. After Bill Cosby was accused of sexual assaults stretching back more than a decade, California extended its statute of limitations, too (the ruling does not apply retroactively). Even in states where the reporting timeline is flexible, though, sexual assault cases carry a burden of proof that’s difficult to meet even in contemporaneous sexual assault cases.
“Prosecutions of sexual assaults when a significant period of time has passed are more likely to proceed when multiple victims come forward and where there is corroboration of the allegations,” said Vignarajah. “That is helpful in any case and certainly in sexual violence prosecutions. This is why thorough investigations are so important.”
Though there have been multiple accusations raised against Kavanaugh, it’s especially difficult to speculate on the likelihood of a ruling in the hypothetical, says Lisae C. Jordan, Executive Director of the Maryland Coalition Against Sexual Assault. “Frequently they’re asking this question couched in sexual assault, but the law is much more complicated and requires much more information,” she said. “About which body parts [were touched], were there other people involved, how old the perpetrator was, how old the survivor was, what year it all happened. All of those things could be relevant.” And, she reiterates, Blasey Ford’s specific account is likely barred by Maryland’s statute of limitations for misdemeanor crimes.
But as Vignarajah wrote in an opinion column in the Washington Post, there are elements of Blasey Ford’s account that aren’t hypothetical at all, and that could be prosecuted. “Attempting a sexual assault with the aid of another person counts as attempted first-degree rape, just as restricting a victim’s breathing to stop her from shouting for help could fairly qualify as first-degree assault,” he writes. “Likewise, under Maryland law, using force to move a victim a short distance, even from one room to another, can amount to kidnapping, a crime that similarly has no limitations period.”
In a tweet thread posted on Friday night, Vignarajah added: “For those looking at Md statute of limitations (SOL), the closest thing to what we today call attempted first-degree rape was, in 1982, assault with intent to rape, which is a felony to which no SOL applies. (Not to be confused with the misdemeanor of attempt to rape.)”
Lucille Baur, a spokesperson for the department, would not say whether declining to open an investigation without a specific request by a victim was police department policy for all cases, or all sexual assault cases, or for this case in particular. “There could be circumstances that develop that change what becomes appropriate for us,” she told CityLab Thursday. “We don’t know what would be reported to us, we don’t know what crime or crimes [were committed], and different types of crimes are investigated differently.”
The representatives challenge the fact that local law enforcement needs that express request to move forward, however. “We believe local law enforcement has the authority to investigate allegations of crimes without need for a formal complaint, and we further believe third parties have standing to bring such complaints,” the letter reads.
Separately, State Senator Cheryl Kagan wrote her own letter last week requesting a state-level investigation, but Maryland Governor Larry Hogan declined to open one. After Thursday’s hearing, Hogan is calling for a delay to the confirmation, and demanding an independent investigation (but still not a state-level one) be conducted.
If local proceedings don’t move forward as the Maryland House has requested, the FBI still has the ability to reopen the case as Flake requested, with Senate Majority Leader Mitch McConnell direction and the White House’s approval. But as Senator Amy Klobuchar pointed out during Thursday’s hearing, when Anita Hill accused now-Supreme Court Justice (then-Supreme Court nominee) Clarence Thomas of sexual assault in 1991, George H. W. Bush ordered that an investigation into his conduct be reopened by the FBI. And it was.
If other claims of sexual assault are raised in the coming days in states with stricter statutes of limitations, they will be impossible to prosecute locally. These restrictions have been implemented for various reasons, says Vignarajah. “One school of thought is that time limits bring closure, they reflect a decision by the legislature that after a certain point the allegations should be left in the past,” he said. “Others say statutes of limitations are to make sure the evidence is reliable and not stale.” Different states take different approaches, but the United States Senate is not bound by any such approaches.
Still, launching a local investigation has symbolic weight, even if it doesn’t present a realistic chance of delaying Kavanaugh’s confirmation, nor a clear pathway towards prosecution. “I think our goal was to exert external pressure and to make this request and make sure it was known that there’s strong public support for some action in terms of an investigation,” said Kelly. “We hear a lot from parents of current teenagers today about the message that a lack of an investigation is sending; that for some reason this investigation doesn’t matter, that you can get away with it.”
For the teenage girls—and boys—in Montgomery County today, she says, it matters a lot.