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March 2019 Issue

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Could Kavanaugh Have Been Found Guilty of Sexual Assault Under California Law?

by Fay Arfa, Fay Arfa, A Law Corporation


Synopsis of the Incident 


Near the end of Justice Kavanaugh’s Senate confirmation process, Christine Blasey Ford, Ph.D.,  accused Kavanaugh of sexually assaulting her in 1982 when she was 15 years old.  They were both in high school when Ford,  Brett Kavanaugh, Mark Judge, P.J. Smyth and another boy, attended a gathering at a private home. According to Ford, “Brett and Mark were visibly drunk.”  As Ford walked up the stairs, someone pushed her into a bedroom.  Brett and Mark entered the bedroom, locked the door behind them, pushed Ford “. . . on to the bed and Brett got on top of [Ford].”  Brett began “running his hands over [her] body and grinding his hips into [her]. . . groped her and tried to take off [her clothes].” She told him to stop, but Brett and Mark laughed and seemed to have “a good time.”  Ford testified that she would never forget the details which had been “seared into her memory and have haunted [her] episodically as an adult.”1


Judge Kavanaugh claimed that although their “social circles [may have] overlapped, Judge Kavanaugh denied he ever had any “physical encounters” with Dr. Ford.  He denied he ever locked her in a bedroom, pinned her to a bed, groped her or tied to take off her clothes.”  He admitted he knew Mark Judge and admitted that he drank beer.2


Kavanaugh’s No Corroboration Defense


During the Kavanaugh Senate confirmation process, President Trump declared that the allegations of sexual misconduct against Supreme Court nominee Brett Kavanaugh are "totally uncorroborated" . . . "The harsh and unfair treatment of Judge Brett Kavanaugh is having an incredible upward impact on voters. The PEOPLE get it far better than the politicians. Most importantly, this great life cannot be ruined by mean & despicable Democrats and totally uncorroborated allegations!" he tweeted.3 

Senate Majority Leader Mitch McConnell (R-Ky.) lashed out at Democrats in a furious floor speech on Thursday about Supreme Court nominee Brett Kavanaugh's confirmation, arguing the allegations against him are "uncorroborated mud." McConnell spoke just hours after senators began reviewing a report from the FBI on the allegations, which Democrats quickly criticized as lacking breadth. “The fact is that these allegations have not been corroborated," said McConnell, who on Wednesday night filed a motion to end debate on Kavanaugh's nomination. "None of these allegations have been corroborated by the seventh FBI investigation.”4 

California Law Does Not Require Corroboration to Support An Accuser’s Allegations of Sexual Assault

In a California criminal case, an accuser’s testimony need not be corroborated.  California Criminal Jury Instructions pinpoint an accuser’s testimony and instruct jurors that the testimony of a single witness is sufficient to sustain a conviction.5  The trial judge may, upon request, instruct the jury with CALCRIM No. 1190 that a “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.”6 Both instructions have been upheld by the California courts as correct statements of the law and the instructions do not imply that the accuser’s testimony has more credibility than the accused’s testimony. 7 


In People v. Gammage (1992) 2 Cal.4th 693 the California Supreme court concluded that instructions substantially similar to CALCRIM Nos. 1190 and 301 did not "create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference."8 The Gammage court explained: "Although the two instructions overlap to some extent, each has a different  focus. [CALCRIM No. 301] focuses on how the jury should evaluate a fact . . . proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. [CALCRIM No. 1190], on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes."

"The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. . . . 'There was no singling out of the testimony of the prosecuting witness with a view of giving it undue prominence before the jury.' [Citation.] Nor do the instructions 'dilute[] the "beyond a reasonable doubt" standard.' [Citation.] The instructions in combination are no less correct, and no less fair to both sides, than either is individually."9


The Gammage court noted prior decisions explaining the special features of rape that make an instruction on corroboration proper. Gammage, 2 Cal.4th at p. 697, quoting People v. McIntyre (1981) 115 Cal.App.3d 899, 907, stated " 'The proof of the elements of [rape] often turns on a credibility contest between the accused and the accuser alone, since the act is most often committed in private [citation]. Permitting a jury to operate under the misconception corroboration is required would put the value of the victim's testimony on a level below that of the defendant's testimony, credibility aside, and that is not the law.' [Citation.],"10


" 'Although . . . there may be less likelihood today . . . that a jury would mistakenly believe the law required a rape victim's testimony be corroborated, there remains the very strong likelihood that a rape victim who survived the attack without "benefit" of corroborating physical injuries or who delayed in reporting the offense would find her testimony the subject of vigorous attack in cross-examination and in defense argument simply because of this absence of corroborating evidence.' "11


Gammage concluded CALJIC No. 10.60 [now CALCRIM No. 1190] "continues to perform an important role. Although the 'historical imbalance between victim and accused in sexual assault prosecutions' has been partially redressed in recent years [citation], there remains a continuing vitality in instructing juries that there is no legal requirement of corroboration. Further, even if we were to assume, which we do not, that all juries are aware of the no-corroboration requirement, or would glean it from [CALCRIM No. 301] itself, no harm is done in reminding juries of the rule. The jury is instructed that the prosecution must prove its case beyond a reasonable doubt. This places a heavy burden of persuasion on a complaining witness whose testimony is uncorroborated. [CALCRIM No. 1190] does not affect this instruction but . . . when all the instructions are given, 'a balance is struck which protects the rights of both the defendant and the complaining witness.' "12 Noting that "trials of sex crimes, which often are a credibility contest between the accused and the accuser, have 'special features which make such an instruction on lack of corroboration most proper,' " the court held it proper "for the trial court to give [CALCRIM No. 1190] in addition to [CALCRIM No. 301] in cases involving sex offenses."13 

So, could Justice Kavanaugh have been found guilty under California Law based on the uncorroborated testimony of Dr. Ford?  


By Fay Arfa, Attorney at Law

CA Bar Certified Specialist Criminal Law

CA Bar Certified Specialist Appellate Law

NBTA Certified - Criminal Trial Advocacy

Past President - Century City Bar Assn.

10100 Santa Monica Blvd., #300

Los Angeles, CA 90067

Tel: (310) 841-6805 

Fax: (310) 841-0817

info@bestdefender.com www.bestdefender.com


1. Written testimony of Dr. Christine Blasey Ford, United States Senate Judiciary Committee, September 26, 2018. https://www.judiciary.senate.gov/imo/media/doc/09-27-18%20Ford%20Testimony.pdf

2.Monday, Sept. 17, 2019 U.S. Senate Committee on the Judiciary, Washing, D.C.  https://www.judiciary.senate.gov/press/rep/releases/judiciary-committee-releases-transcripts-of-kavanaugh-interviews

3.POLITICO By MATTHEW CHOI 10/04/2018 08:50 AM EDT Updated 10/04/2018 10:47 AM EDT https://www.politico.com/story/2018/10/04/trump-kavanaugh-allegations-fbi-868730

4.BY JORDAIN CARNEY - 10/04/18 12:29 PM EDT https://thehill.com/blogs/floor-action/senate/409911-mcconnell-lashed-out-at-uncorroborated-mud-thrown-at-kavanaugh

5.People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884–885;

6.People v. Poggi (1988) 45 Cal.3d 306, 326. 

7.People v. Gammage (1992) 2 Cal.4th 693, 700–702  [resolving split of authority on whether the two instructions can be given together].)

8.  Gammage, at p. 701.

9. Gammage, at p. 701.

10.Gammage, at p. 699, quoting People v. Blassingill (1988) 199 Cal.App.3d 1413, 1422.

11. Gammage, at pp. 699-700; see also People v. Hollis (1991) 235 Cal.App.3d 1521, 1525-1526 [“We are keenly aware that the issue is merely one aspect of the larger problem of balancing a criminal defendant's right to a fair trial with a rape victim's right to testify against her assailant without being subjected to unnecessarily intrusive or suggestive means of testing her credibility. Fortunately, victims now have greater protection from such harassment than they had in the past. [Citations]”].)

12. Gammage, at p. 701

13. Gammage, at p. 701

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Fay Arfa practices criminal law exclusively. She is certified as a Specialist in Criminal Law and Appellate Law by the California State Bar, Board of Legal Specialization. The National Board of Trial Advocacy awarded her a Certification in Criminal Trial Advocacy. She is a past President of the Century City Bar Association, currently serves on the Century City Bar Board of Governors and served as Criminal Law Chair (1998-2012).

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