Opinion

Fox News’ Andrew Napolitano Gets the Kavanaugh Allegations (and the Law) Very Wrong

Fox News Channel senior judicial analyst and former judge Andrew Napolitano weighed in on Wednesday about the sexual assault allegation against Supreme Court nominee Brett Kavanaugh. In the process of attempting to educate Fox News viewers, however, Napolitano made two major errors.

When asked by host Dana Perino to explain the potential FBI investigation into Christine Blasey Ford‘s accusation against Kavanaugh, Napolitano said:

This is not an investigation of whether or not Judge Kavanaugh committed a crime. There’s no allegation that he committed a crime.

That’s wrong.

The allegation is that Kavanaugh attempted to rape Ford and that he physically assaulted her in the process of attempting to commit the alleged sex crime. As Law&Crime’s Ronn Blitzer explained in a previous analysis:

The allegations appear to make out a case for attempted sexual assault, or what the Maryland statutes might call attempted sexual offense in the second degree. That law says that it’s a felony for someone to ” engage in a sexual act with another … by force, or the threat of force, without the consent of the other.” A separate statute says that even an attempt of this offense is a felony that can be punishable with up to 20 years in prison.

Former federal prosecutor Renato Mariotti made the same point in direct response to Napolitano’s mistake on Twitter. Mariotti noted, “This is false–Professor Ford alleges that Judge Kavanaugh committed attempted rape.”

But that’s not all Napolitano got wrong. Immediately after his first misstatement of fact, Napolitano offered the following misstatement of law:

The event, even if it happened exactly as she said it did, was 36 years ago–obviously the statute of limitations has expired.

That’s, of course, wrong as well. As I noted in an earlier Law&Crime analysis [italics added]:

Brett Kavanaugh graduated from Georgetown Preparatory School in 1983. That’s a relatively long time ago. So, could there still be criminal liability in store for President Donald Trump‘s second high court nominee?

If the allegations against him are true, that’s absolutely possible. In fact, a criminal investigation might even be considered plausible at this point under certain circumstances. That’s because the State of Maryland has no statute of limitations for felony sexual assault charges.

In fact, there’s never been a statute of limitations for felony sex crimes in Maryland.

Law&Crime reached out to Fox News for comment but no response was forthcoming at the time of publication.

[image via screengrab]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

This is an opinion piece. The views expressed in this article are those of just the author.

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