Could Kavanaugh face criminal charges for alleged assault?

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Lawyers and other legal experts say there are significant hurdles to bringing criminal charges against Supreme Court nominee Brett Kavanaugh, a prospect that has been raised after Christine Blasey Ford said he sexually assaulted her 36 years ago when they were both in high school.

Ford says in 1982, Kavanaugh was drunk when he pinned her to a bed, groped her, and tried to remove her clothing. Kavanaugh denied it, but based on Ford’s description of the event, his alleged actions could be considered second-degree assault or a fourth-degree sexual offense, according to legal experts.

Those are misdemeanors under Maryland law, and the statute of limitations prohibits charges after one year. But Lisae Jordan, the executive director and counsel for the Maryland Coalition Against Sexual Assault, said the allegation could also be considered attempted second-degree rape or an attempted second-degree sexual offense, though she stressed it’s “very difficult to assess whether the actions rise to the level of an attempt given the limited facts we have.”

Both of those charges are felonies under Maryland law, and are not governed by a statute of limitations.

“The question is whether Judge Kavanaugh’s actions were a substantial step toward committing a second-degree rape or second-degree sex offense,” Jordan said. “This is a factual legal question. To be an attempt, the assailant must do more than preparation and must take a substantial step toward the criminal act.”

Randolph Rice, a Maryland criminal defense lawyer, said that to charge Kavanaugh with attempted second-degree rape or attempted second-degree sexual offense, prosecutors would “have to have something that shows he attempted to have vaginal intercourse by a threat or force.”

“I just don’t see how you get to an attempted felony,” he said. “There was no allegation of a weapon, so not first-degree rape. There was no allegation there was force or he attempted to have vaginal intercourse. That’s a stretch, I think, for any prosecutor if they looked at this case.”

Since Ford came forward with her allegation against Kavanaugh, many Senate Democrats and Ford’s own lawyers have urged the FBI to investigate her claim. Legal experts, though, say an allegation such as Ford’s would typically be investigated by local law enforcement, in this case from Montgomery County, where the alleged encounter took place.

“Everything has been allegations of state charges,” Rice said.

Rebecca Innocenti, a sergeant with the public information office of the Montgomery Police Department, said the department is not investigating the allegation involving Kavanaugh at this time.

“No report has been brought to our attention. No one has made a report to our police department,” she said.

The police department would initiate an investigation once someone makes a report, Innocenti said.

David Benowitz, a Maryland criminal defense attorney and founding partner at Price Benowitz LLP, said that if local law enforcement were to investigate the crime, the 36 years that have transpired since the alleged incident would make it tough to conduct a fact-based analysis.

“Here, you’re essentially talking about witnesses — unless there’s physical evidence we don’t know about — but assuming there’s not, witness memory fades, and it makes it very difficult,” he said. “Even if a prosecution could be brought, it makes it very difficult to mount a constitutionally adequate defense.”

Rice said if Montgomery County law enforcement were to proceed with an investigation, they would have to speak to Ford and Kavanaugh, as well as Mark Judge, who Ford said was in the room when the alleged assault occurred.

Judge, however, said he has no memory of the encounter and never saw Kavanaugh act as Ford described.

“It would be a very circumstantial case from what I’ve read so far if it fell within the period of time that would allow for charges,” Rice said.

Even if local law enforcement were to investigate the alleged sexual assault and discuss bringing charges, the decision to do so will likely hinge on whether Ford wants to file a complaint, Jordan said.

“One of the most important questions is what Dr. Ford wants to do,” she said. “A competent prosecutor would consider the wishes of the survivor in this type of case.”

So far, Ford has not publicly discussed pressing charges or any investigation beyond one from the FBI.

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