In late September, Christine Blasey Ford testified under oath that she was “100 percent” sure that Brett Kavanaugh sexually assaulted her in 1982. Later that day, Kavanaugh responded by swearing with equal certainty that he did not. How do we square these two contradictory statements? A case of mistaken identity provides a neat resolution: It allows us to believe them both. Ford is sincere and wrong, her memory warped by trauma and the passage of time. Yes, someone did try to rape her in high school—it just wasn’t Kavanaugh, who is sincere and correct in his assertion of innocence. Indeed, this was the exact argument made by many Senate Republicans, eager to thread a needle between the two contradictory testimonies and get Kavanaugh confirmed.
It worked to whatever extent it had to, given that Kavanaugh is now a Supreme Court justice. But believers in the theory of mistaken identity should reconsider because the error they’ve made matters greatly to Ford’s story, and to how we understand and process sexual assault more broadly.
It makes no sense to take an empirically proven cause of wrongful convictions in stranger rape cases and apply it to a teenager’s attempt to force himself on a female acquaintance. Comparing these two radically different sexual attacks is the equivalent of comparing apples to sushi. The conflation of the particularized trauma experienced by sexual assault survivors also trivializes the fact that the majority of mistaken identifications happen in stranger rape cases where the assailant is black and the victim is white. Daniel Medwed, a law professor at Northeastern University and an expert on mistaken identifications, said he was “flabbergasted” when the theory was floated by credible people from across the political spectrum. “To call it hogwash is giving too much credit to hogs,” he said. “It’s just absurd.”
One of us, Jennifer, is a survivor of both an attempted sexual assault by an acquaintance in high school and a rape at knifepoint by a stranger in college. Her recollection of both events helps to highlight their difference. In the summer of 1976, when Jennifer was 14, her friend invited her to spend the weekend with her family at the beach. One afternoon, after Jennifer went upstairs to her bedroom to change her sanitary napkin, her friend’s father came in unexpectedly. He walked toward her, telling her how pretty she was and backing her into a corner. Jennifer awkwardly pulled up her jeans, pushed him away, and was able to slip under his arms to run downstairs.
Some details are lost: the color of her friend’s father’s shirt that day, the day of the week, even the name of the beach. But Jennifer can tell you this: He was white, average height, with brown hair, and his name was Jack. On a good day, he bore a passing resemblance to a well-known movie star, and he was considered to be an upstanding member of the community. Years later, he became the mayor of the town where they lived. Though the incident happened more than 40 years ago, there is no chance that she is mistaking Jack for someone else. The attempted assault left an indelible mark on Jennifer’s life in part because of the terror that came from realizing that someone she knew and trusted could hurt her.
Fast forward to the summer of 1984, when Jennifer was 22 and a college student in North Carolina. She was awakened in the middle of the night to find a stranger in her bedroom. Holding a knife to her throat, he whispered, “Shut up or I will kill you,” and then he raped her. She knew two things: that physically she could not stop what was happening, and that if she survived, she would remember every detail of his face so that the police could find him.
Jennifer did survive, managing to escape to a nearby neighbor’s house. Asked to provide a description of the perpetrator by detectives, Jennifer was able to give many details: young, African American male, light-skinned, close-cropped hair, and thin mustache. A composite sketch was made, and a man named Ronald Cotton was arrested. Jennifer identified him. She was positive it was him. Cotton was tried, found guilty, and sentenced to die in prison. But 11 years later, DNA evidence proved that he was innocent.
Jennifer and Ronald told their story in the 2009 best-selling book Picking Cotton. Since the Kavanaugh-Ford hearings, Jennifer has fielded several media requests asking her to explain, based on her own experience of misidentification, how Ford could have been wrong. But there is no comparison to be made between the two cases.
Ford’s story isn’t Jennifer’s story of rape; it’s Jennifer’s story of that afternoon at the beach, of an attempted assault by a white man she knew from her social circle. Ford had socialized with Kavanaugh in the past; his face, voice, and body were easily recognizable to her. Indeed, she had socialized with him on the day the alleged attack occurred. And both women’s stories confirm the same thing: Victims remember who it is when they know the person who is trying to violate them.
Ford even painstakingly explained, based on her own academic research, why she was certain it was Kavanaugh. But her explanation, despite being grounded in science, did not quell doubts. On Sept. 30, Kellyanne Conway told CNN’s Jake Tapper that Ford might have been “misremembering who was responsible for the assault.” Nicholas Kristof wrote in the New York Times: “Liberals should remember a basic lesson of our flawed criminal justice system: Well-meaning eyewitnesses make mistakes all the time, and memory plays terrible tricks.” On Oct. 5, prior to casting her crucial vote to confirm Kavanaugh, Republican Sen. Susan Collins stated that while it was possible that Ford was sexually assaulted that night “or at some other time,” there was simply too much doubt that her attacker was Kavanaugh to find in her favor.
That is bunk. Medwed points to several markers in the data that are associated with false identification: unconscious transference, fleeting encounters, darkness, weapon focus, cross-racial identification. “None of the hallmarks of mistaken ID are present in her account,” he said.
It’s worth lingering over cross-racial misidentification, which was a factor in Jennifer Thompson and Ronald Cotton’s case and is not unique. Instead, it is all too common for black men to be wrongfully convicted of raping white women. Black men account for only 13 percent of the population, but 59 percent of prisoners who have been exonerated for sexual assault crimes are black, according to a 2017 report by the National Registry of Exonerations. “The major cause for this huge racial disparity,” the authors wrote, “appears to be the high danger of mistaken eyewitness identification by white victims in violent crimes with black assailants.”
As Medwed enumerated, the chance that the victim will pick the wrong person increases when the crime occurs at night, the crime involves a weapon, and the attacker is outside the victim’s racial group. The likelihood of a mistaken identification grows higher still when police provide the victim with an array of mug shots and say that they have made an arrest. At that point, the victim believes that the perpetrator must be among the array of photographs—it’s just a matter of finding him. In these cases, the mind engages in “relative judgment,” with the victim choosing the photograph that most closely resembles the stranger who committed the assault.
All of these factors played a role in the violent assault and faulty identification procedures leading up to arrest and wrongful conviction in Picking Cotton. None were present on the afternoon when Jennifer had to fend off her best friend’s father in 1976—or at the small gathering at a home in suburban Maryland in 1982, where Ford says a drunken Kavanaugh (whom she saw at least in the presumably lit living room) groped her, attempted to remove her clothing, and covered her mouth when she tried to scream. Attempting to equate these two kinds of crimes—rapes by strangers of another race and attempted assaults by known men of the same race—by claiming each is equally susceptible to the error of sincere but mistaken identification is wrong. It does a disservice to all survivors of sexual assault—the victims and those who are ultimately exonerated.