Taking On Rachel Mitchell’s “Outrageous,” “Ridiculous” and “Disingenuous” Memo Attacking Dr. Christine Blasey Ford

The latest female face of men’s misogyny is Rachel Mitchell—and feminist legal experts are calling out her attempts to undermine Dr. Christine Blasey Ford, who was the first of multiple women to now come forward with sexual assault allegations against Supreme Court nominee Brett Kavanaugh.

In a nine-page memo issued Monday by the Arizona sex crimes prosecutor brought in by Senate Republicans to cross-examine Blasey Ford during last week’s Senate Judiciary Committee hearings on Kavanaugh’s nomination, Mitchell dissects Ford’s words while totally ignoring Kavanaugh’s testimony and demeanor during the hearing. She characterizes Ford’s sexual assault allegations against Kavanaugh as “he said, she said” and concludes that no “reasonable prosecutor” would bring a case against Kavanaugh based on the evidence before the Senate Judiciary Committee.

Multiple experts have rightfully condemned her conclusions.

Women protested Kavanaugh’s nomination in the wake of Blasey Ford’s testimony in Washington, D.C. (Mobilus in Mobili / Creative Commons)

Michelle Anderson, President of Brooklyn College and an expert in sexual assault law, called the memo a “detailed picking apart of Ford’s testimony” and a “collection of immaterial points and minor inconsistencies, some of which Mitchell did not even give Ford an opportunity to clarify under oath.”

Anderson, who reminded press outlets on a media call this week that the committee “allowed very little evidence,” described Mitchell’s conclusion as “strange.” Senate Republicans also would not allow any potentially corroborating witnesses to testify, such as Mark Judge—Kavanaugh’s friend who said on his page in their high school yearbook that “certain women should be struck regularly, like gongs,” and who Ford stated was present during the assault.

Former sex crimes prosecutor Matthew Long, who trained under Mitchell at the Maricopa County Attorney’s Office in Phoenix, called the memo “absolutely disingenuous” and asserted that “Mitchell doesn’t have sufficient information to even draw these conclusions.” A “reasonable prosecutor,” he added, would conduct a full investigation—which Mitchell did not do—before making any conclusion about whether or not to prosecute a case.

Long also pointed out that Mitchell’s memo contradicts the practices of her own office. She criticizes Ford’s inability to recall with certainty the time frame of Kavanaugh’s alleged assault—but Long noted that her office “often charges cases with a very expanded timeline.” Long also declared that he “was trained by Ms. Mitchell about how trauma explicitly prevents memory from happening,” and remarked that she trained him to identify the inability to recall these details as corroborating a survivor’s story, rather than undermining it—a stark contrast to her critique of Ford’s inability to recall certain details about the circumstances of the assault. An expert who studies the effects of stress on memory, Dr. Phillip Zoladz, has also noted that forgetting details about the circumstances of a sexual assault, such as what happened after, is not unusual. “Stress enhances the storage of information that occurs around the time of the stress,” Zoladz said, “while impairing the storage of information that is temporally separated from the stress.”

Mitchell states in her memo that potential witnesses named by Ford have “either refuted her allegations or failed to corroborate them” in signed statements before the Committee—a statement which Long described as “absolute bullshit” that “wouldn’t meet any type of standard Ms. Mitchell would allow in considering their statements, but instead would have demanded they be interviewed in a full-blown interview to really flesh out these people’s motivations.”

Former New York City prosecutor Deanna Paul agrees that a reasonable prosecutor would never rely on an affidavit to refute criminal accusations without the opportunity to cross-examine the witness. “Mitchell’s role was more akin to a defense attorney than a prosecutor,” Paul remarked to The Washington Post, “and defenders are in no position to issue prosecution reports.” Paul also issued a reminder that while these types of cases are challenging to prove, “sex crimes prosecutors do it every day, often successfully.”  

Describing Mitchell’s memo as “outrageous,” former chief of the Manhattan District Attorney’s Office’s Sex Crimes Linda Fairstein agreed that a reasonable prosecutor would conduct a further investigation of Ford’s allegations against Kavanaugh before deciding not to prosecute. 

Former prosecutor and senior attorney at the National District Attorneys Association and current partner with Justice 3D Roger Canaff called the memo “a ridiculous stretch” during a press briefing, and asserted that “it seems as if Mitchell made up her mind and then looked for things in the testimony” to bolster her own pre-determined conclusion.

Many experts were also puzzled that Mitchell failed to analyze Kavanaugh’s testimony and demeanor during the hearing in the memo. Forgotten in the Republican blusterings is what is at issue here—not whether Kavanaugh should be prosecuted, but whether he is fit to sit on the Supreme Court. 

Mitchell’s behavior provides yet one more example of how the legal system so often fails survivors. Her memo is now part of a vast archive of documents, statements and policy decisions that mark the many attempts by Republican lawmakers and the Trump administration to weaken protections for women who are survivors of men’s violence—from Betsy DeVos’s rollback of Title IX protections against campus sexual assault to Republican refusal to reauthorize the Violence Against Women Act, which expired on September 30.

In the scope of the Kavanaugh hearings, Mitchell has emerged as a version of Aunt Lydia from Hulu’s The Handmaid’s Tale—a woman willing to do the dirty work of the Republican party and the Trump administration, even though her own colleagues have determined that she should know better and survivors across the country were counting on her to do better.

About

Carrie N. Baker is Professor and Director of the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the US Youth Sex Trade: Gender, Race and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015.