By William Wiley, October 9, 2018

The Ford-Kavanaugh Senate hearings had much of our country focused on the concept of evidence and proof. In last week’s FELTG News Flash, we wrote about the problem the Senate has because it is arguing about “proof” without having a definition of what level of proof is relevant. Is there proof that Kavanaugh, who was confirmed and sworn in over the weekend, tried to sexually assault Dr. Ford 35 years ago? How much evidence is necessary for one to conclude that the claim has been proven? Consideration of the nomination to be a Justice on the Supreme Court is effectively a job interview. Do we need any proof at all relative to serious claims of prior sexual misconduct?

We eliminated a couple of options relative to the degree of proof that makes sense in a case like this. Although there are good arguments to the contrary, and although there are those who call for “concrete” evidence and others who call for no evidence at all, we concluded that the best standard to use in cases like this is the standard used throughout most of government regarding personnel matters: preponderant evidence. A preponderance of the evidence is reached when a fact finder concludes that it is more likely than not that a claim is true; e.g., that the facts claimed “probably happened.” Those old scales of justice are just barely tipping in the direction of believing the allegations.

When explaining her vote to confirm last Friday, Senator Collins stated that the standard of proof she was using was whether it was “more likely than not” that Dr. Ford’s claim regarding the sexual assault was correct. Which leaves us with deciding who is more likely to be the more truthful about what happened at that teenage drinking party 35 years ago. Did a drunken Nominee Kavanaugh attempt a sexual assault as Dr. Ford now claims at the 100% certainty level? Or, as Judge Kavanaugh asserted forcibly and with absolute certainly in the hearing, is the correct answer that he did not do it?

In other words, which of the two possible scenarios adopted by Senator Collins and several other Senators is more likely to be correct?

1. Kavanaugh sexually assaulted Ford at that high school party and is lying about it now so that he can be appointed to the Supreme Court (or is forgetful).
2. Someone other than Kavanaugh sexually assaulted Ford that night and she mistaken as to who her attacker was.

Many “experts” and Senators argue that we cannot conclude that the attack happened because there is no evidence beyond Dr. Ford’s claim. Well, that’s not exactly accurate. There indeed is evidence beyond the claims of Dr. Ford. It might be fair to say that the evidence does not amount to proof if one is using a higher standard of proof than preponderance. However, if we are using the widely accepted standard of preponderant evidence, MSPB gave us a tool over 30 years ago to assess the evidence in a he-said/she-said situation such as this one. Based on the case in which the Board defined this truth-telling instrument, that tool is known as the Hillen Factors.

You see, in civil service law, it is somewhat common to have two witnesses testify to two diametrically opposed sets of facts. This is especially true in claims of sexual misconduct. Many such situations involve a he-said/she-said conflict in testimony, simply because most acts of sexual misconduct occur in private, involving only two witnesses. If the Board were to require corroborating evidence in each of those claims, many perpetrators would go unpunished for lack of “concrete” evidence that the misconduct occurred. Appreciating the unfairness of such a situation, and acknowledging that the “probably” proof standard was appreciably lower than the standard needed to throw somebody in jail for a crime, the Board laid out the Hillen Factors as a guide to its judges as to how to assess evidence, and as an instrument for parties to an appeal to use to prove their claims.

Now, you get to be a US Senator (or Fox/CNN talking head, if you see that as a better job). Consider each significant Hillen Factor below relevant to what you know about each witness. Answer the questions, fill in the blanks, and then you can decide who’s telling the truth:

Hillen Factor
Kavanaugh
Ford
Reputation for honesty
Has lied previously?
Has lied previously?
Bias or lack thereof
Reason to lie?
Reason to lie?
Inherent improbability
Statements reasonable?
Statements reasonable?
Demeanor
Calm and straightforward?
Calm and straightforward?

It is fair to say that there is not a lot of evidence to support either witness. However, using the preponderance of evidence standard, there does not need to be a lot of evidence for there to be proof. There just needs to be a little bit more one way or the other, enough to slightly tip the scales of justice.

You get to be the judge. Decide where the Hillen analysis takes you. You and I might reach a different conclusion, but we cannot say that there is no evidence. There are always the Hillen Factors to help us get there. Without them, victims of one-on-one attacks will never receive justice. Wiley@FELTG.com

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