What experts say about 'corroboration,' a key word from the Kavanaugh hearings

PHOTO: Christine Blasey Ford testifies during the Senate Judiciary Committee hearing on the nomination of Brett M. Kavanaugh to be an associate justice of the Supreme Court of the U.S., on Capitol Hill, in Washington, D.C., Sept. 27, 2018.PlayTom Williams-Pool/Getty Images
WATCH Fate of Kavanaugh confirmation rests with FBI investigation

"No corroboration."

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That was how the Senate Judiciary Committee summarized the FBI investigation into sexual assault allegations made by Christine Blasey Ford and Deborah Ramirez against Supreme Court nominee Brett Kavanaugh Friday morning before his confirmation vote.

"Corroboration" has been the buzzword on Capitol Hill, cable news networks and Twitter feeds since Ford, Ramirez and Julie Swetnick publicly accused Kavanaugh of sexual misconduct during his high school and college years, allegations Kavanaugh has flatly denied.

PHOTO: A crest of the Federal Bureau of Investigation is pictured on Aug. 3, 2007, inside the J. Edgar Hoover FBI Building in Washington, D.C. AMandel Ngan/AFP via Getty Images
A crest of the Federal Bureau of Investigation is pictured on Aug. 3, 2007, inside the J. Edgar Hoover FBI Building in Washington, D.C.

But legal experts, sexual assault survivors, advocates and clinical psychologists say that, by and large, many people are getting it wrong when they talk about corroboration in sexual assault cases. And, they say, such errors can have real implications for survivors who are weighing whether to report their assaults.

"Women don't report because they don't think they're going to be believed and they don't have trust in the criminal justice system," Dr. Lori Haskell, a clinical psychologist who trains police on these issues, said. "If the bar is, 'We have to corroborate by somebody else being able to validate or back up this story,' then the bar is too high and women will never be able to come forward."

'A fundamental misunderstanding about sexual violence'

One out of every six women in the United States and one out of every 33 men have been victims of attempted or completed rapes in their lifetimes, according to an analysis of 2010 to 2014 Bureau of Justice Statistics by the Rape, Abuse & Incest National Network (RAINN), the nation's largest anti-sexual violence organization.

"We don't tell someone who has been robbed that unless they have security footage of the crime, they're out of luck,” Rebecca O'Connor, the vice president of public policy at RAINN, said. “Why on earth would we send such a message to victims of violent sex crime felonies?"

I was asked for any sort of proof, but the burden of proof was placed on me, there wasn't any sort of investigation conducted.

Only 23 percent of victims of rape or sexual assault reported those incidents to police in 2016, compared with 54 percent of robbery victims and 58 percent of aggravated assault victims, according to the Bureau of Justice Statistics. Often, one of the central reasons victims don't report assaults is because they fear they won't be believed or will face retaliation, and demanding "corroboration" can be a factor.

"To say that a crime has not occurred without third-party corroboration is to demonstrate a fundamental misunderstanding about crimes of sexual violence,” O'Connor added.

“Sexual assaults rarely play out in a public setting. The majority of perpetrators know their victims and it is rare to find a cloister of witnesses to incidents like the after-school sexual abuse of a student by a teacher in an empty classroom, or the assault of a woman in her own home by a boyfriend or family acquaintance."

'Valuable' but often not required

Indeed, in most jurisdictions across the country, corroboration is "valuable" but not usually a legal requirement to prosecute or convict someone of a sexual offense, according to a guide for prosecutors produced by the nonpartisan legal nonprofit AEquitas.

That reflects the nature of these crimes themselves, which is often private.

"Generally, in sexual violence cases, and this has been true throughout time, there has been a lack of traditional corroborating evidence: an eyewitness, or some sort of physical evidence, because of delay in reporting or the nature of how these cases come about," Jennifer Long, the CEO of AEquitas and a former prosecutor, told ABC News.

Finding a balance between fairness and due process is key, which can be hard in sexual assault cases where there is no traditional evidence from witnesses or physical sources, Long said.

"There's fairness due to an accused, and there's fairness due to an accuser as well," Long said. "Out of that is where all of this analysis came out to: How do you handle these cases that so often don't have traditional corroborating evidence?"

PHOTO: Judge Brett Kavanaugh testifies before the U.S. Senate Judiciary Committee on Capitol Hill in Washington, Sept. 27, 2018. Saul Loeb/Reuters
Judge Brett Kavanaugh testifies before the U.S. Senate Judiciary Committee on Capitol Hill in Washington, Sept. 27, 2018.

Many legal scholars trace the requirement for corroboration in sexual assault cases back to the 1600s and Sir Matthew Hale, an English jurist who wrote that "[Rape] is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent," according to an analysis by law professor Constance Backhouse published in the Western Australian Law Review.

In keeping with Hale's views that sexual assaults should be prosecuted differently than other crimes, English judges were instructed to caution juries that "it was dangerous to convict upon the uncorroborated testimony of female rape complainants," Backhouse wrote.

Historically, experts say, publicly calling for corroboration in sexual assault cases has been used to promote the idea that people -- largely women and children -- who report sexual abuse shouldn't be believed.

To say that a crime has not occurred without third-party corroboration is to demonstrate a fundamental misunderstanding about crimes of sexual violence.

"The requirement to corroborate sexual offenses comes from the rape myth that women and children lie about sexual violence,” Melanie Randall, a law professor at Western University in Ontario, said. “It came from a warning that women are liars, which is deeply problematic.

“And so, now, the echoes that we are hearing and the demand for corroboration are fueled by rape myths. That's what's so troubling about it: They're not even trying to mask these concerns, they are explicitly framed by hostility and contempt to these disclosures."

Hale's views also influenced U.S. law in the past, Long said, but have since been re-examined.

There's fairness due to an accused, and there's fairness due to an accuser as well.

"As this requirement found its way to U.S. law, there was a recognition over time of how many cases did not proceed forward precisely because of the absence of eyewitnesses or some sort of corroborating evidence," Long explained. "You had sexual assault perpetrators operating with impunity.

“We also started getting a little bit more research about how false accusations, while rare and serious, are not likely. The convergence of both of those things led to a re-examination of the law where in some jurisdictions, it's plainly stated that corroboration isn't required, and in other jurisdictions, it remains, and where it does, it's usually in particular circumstances."

Long said it's crucial for prosecutors to look at the totality of the evidence or support that exists for a victim's statement and opportunities for corroboration that have perhaps been overlooked. Sometimes, that can even come from the alleged offender's statement itself.

"Simply because there weren't eyewitnesses or physical evidence collected, there might be other very important supportive evidence that can help you all together put the case together," Long explained.

The importance of 'micro-corroborations'

Corroboration is helpful because it helps take pressure off a victim as a sole witness to an assault, according to AEquitas' guide for prosecutors. Haskell agreed.

"I don't think we should not look for corroboration, and just because someone has made an accusation, we should believe them,” Haskell said. “I believe we should look for a different kind of corroboration. We have to understand the experience of victimization better to understand what sort of things a victim would focus on during the experience.

"Women's credibility starts below zero in terms of making an accusation. So we just want to bring it to a playing field where they are believed," Haskell said.

But experts say it's also important to expand the idea of what corroboration looks like in sexual assault cases. "Micro-corroborations" can sometimes be helpful when there isn't an eyewitness, physical evidence or surveillance video, according to Haskell.

"What police are being trained to do in the States and Canada is look for micro-corroborations. There's not going to be a witness sitting there," Haskell said.

"A victim might say, 'I heard construction happening outside the room,' and police check and there was construction that day. Or 'I could smell alcohol, he had a certain type of clothing on,' and they find he did indeed have that belt."

Finding those micro-corroborations requires an understanding of how the brain encodes traumatic memories. Haskell gave the example of a victim who remembered counting 36 holes in the ceiling tiles of a room where she was being sexually assaulted. When the police went back to count the holes, there were indeed 36, "and that became a piece of corroborative evidence."

PHOTO: Christine Blasey Ford testifies during the Senate Judiciary Committee hearing on the nomination of Brett M. Kavanaugh to be an associate justice of the Supreme Court of the U.S., on Capitol Hill, in Washington, D.C., Sept. 27, 2018. Tom Williams-Pool/Getty Images
Christine Blasey Ford testifies during the Senate Judiciary Committee hearing on the nomination of Brett M. Kavanaugh to be an associate justice of the Supreme Court of the U.S., on Capitol Hill, in Washington, D.C., Sept. 27, 2018.

Trauma is encoded differently because the brain is altered by stress hormones, and that often means survivors often don't have linear, filled-in memories of all the moments leading up to or after an assault.

"When the adrenaline first hits memory, it's like the flash-bulb memory," Haskell explained. "But then what happens is the brain continues to be flooded, so memory goes from being very vividly encoded to blurred, because as it continues to be flooded, the hippocampus becomes flooded with all this adrenaline and it's no longer encoding, it's in refractory mode."

Ford, a professor who has co-authored research papers on brain science, referenced the hippocampus in her testimony before the Senate Judiciary Committee last week, telling lawmakers the alleged assault was "seared" into her memory and that "trauma-related experience is locked there, so other memories just drift."

Haskell said the fact that Ford was honest about the gaps in her memory made her more credible.

"[Ford] didn't try to put it into a vivid, chronological order, and if people understood the neuroscience, that should make sense,” Haskell said. “Memories are fragmented, those other memories wouldn't be vividly recalled. That sort of evidence doesn't prove someone has been sexually assaulted but it should boost credibility."

'The burden of proof was placed on me'

But even if corroboration isn't always required in the justice system, the court of public opinion views things differently, and often, the onus is placed on survivors to prove that assaults took place and that they are credible.

Erin Helfert Moësse, 36, knows that reality all too well. She said she was 16 years old in 1998 when a basketball coach at her private, religious high school in Houston, Texas, exposed himself to her.

The daughter of a single mother, she said she stayed several hours after school each day doing her homework until her mother could pick her up. The man worked behind the desk in the gym area, she said.

"I was behind the desk where the staff worked, and I leaned over to get something, and he pulled out his erect penis and shoved it against me. And I remember feeling so shocked and terrified. I knew it was wrong, I had no doubt in my mind that it was wrong," Helfert Moësse told ABC News. "I went home, my mother picked me up, and I came back the next day and I approached the head security guard who covered both the church and the school and I told him what happened."

PHOTO: Erin Helfert Moesse is a sexual assault survivor and advocate working on gender-based violence for an international nonprofit. Erin Helfert Moesse
Erin Helfert Moesse is a sexual assault survivor and advocate working on gender-based violence for an international nonprofit.

But instead of being concerned, Helfert Moësse said, the security guard "asked me for evidence: 'Did he write you something? How do you know that actually happened? Maybe it was something else.' It was very victim-blaming, very much putting the burden of proof on me as a 16-year-old: 'Am I not just being a little hysterical?' And then the final phrase was: 'Do you like to turn men on just to get them in trouble?' In fact, admitting that maybe he did do something wrong but that maybe it was my fault."

Helfert Moësse said nothing was done about the alleged assault.

"I was asked for any sort of proof, but the burden of proof was placed on me. There wasn't any sort of investigation conducted," Helfert Moësse said. "When I told my mother, her thought was, 'Look, if you mess this up, you're going to get kicked out of this school and it's really expensive and I really just need you to finish school.'"

PHOTO: Erin Helfert Moesse is a sexual assault survivor and advocate working on gender-based violence for an international nonprofit. Erin Helfert Moesse
Erin Helfert Moesse is a sexual assault survivor and advocate working on gender-based violence for an international nonprofit.

Helfert Moësse said she never forgot that experience. Now an advocate working on gender-based violence issues for an international nonprofit, Helfert Moësse said she has watched in pain at how the women who have accused Kavanaugh have been treated.

"Like many, I was very triggered by last week, but I also couldn't not watch it," Helfert Moësse said. "The way the president mocked her, I hear that. He sounds like everyone I ever encountered ... 'Whoa, it seems like you can't remember things:' It felt so familiar.

“I was really swirling out of control last week, as much as it pains me to admit that," she added.

The #MeToo movement, among others, has done a lot to open up conversations about sexual assault but negative media coverage of survivors can have the opposite effect, too. According to RAINN's analysis of Bureau of Justice Department Statistics, from 2005 to 2010, 20 percent of victims who said they did not report their assaults did so because they feared retaliation.

Randall, the Western University law professor, said that even though a lot of positive work has been done in recent years, the kind of public backlash that the women who have accused Kavanaugh have experienced takes a toll.

"When you have an attitude to suspicion and hostility to women's disclosures about the pervasiveness of sexual violence, it has the obvious effect of closing down the likelihood that women are going to tell," Randall said.

"It becomes a vicious circle, so it's not surprising that most survivors don't report and that itself becomes a barrier.

"It's shocking to see the level of vitriol; it kind of takes my breath away," she added. "The level of misogyny and disparagement of survivors is really discouraging. It's disheartening."