Tuesday’s post looked at how law journals are treating—superficially, with the exception of Laurie Levenson’s work—the “Nifong effect.” To date, only one article has been published that focuses entirely on the case. Penned by Susan Kosse, an assistant professor at the University of Louisville’s Brandeis School of Law, the article (31 S. Ill. U. L. J. 243) asks, “Do race and class impact media rape narratives?”
Kosse’s basic argument: Based on what she observed of the lacrosse case, “media rape coverage leaves much to be desired.” The handling of Durham events confirms earlier studies that in “interclass rape cases, the victim is blamed more when she is from a lower class than the offender.” Also, Kosse chastises the media for expanding the “rape narrative beyond the actual night by reporting many subsequent events.”
According to Kosse, “scholars argue that the media is more sympathetic to the victim when a rape occurs between an upper middle class white woman and an African-American assailant. In contrast, if the allegation involves a rapist who is white or from a higher class, the media tends to place more blame on the lower class, minority victim.” (In fact, she supplies only one article to substantiate this assertion, although it certainly sounds plausible.)
There was, however, no rape in this case, rendering it unclear how events in Durham help us better understand “rape narratives.” Kosse does admit, repeatedly, that the Duke case might not be a good case study for her purposes. She notes that “after I completed this article, the prosecutor dismissed the rape charges against the defendants.” (She says this decision didn’t affect her thesis, since the rape charges were in place for the months that she analyzed the media.) She concedes that the political motives of Nifong—a “Caucasian”—might make the overall case “difficult to analyze and decipher.” She understands that Crystal Mangum “gave apparently conflicting stories about the number of individuals involved, the timing, and the circumstances”—though, she hastens to add, because “no trial will occur, we may never know why she offered multiple versions of the happenings of that night.” And she acknowledges that at times the media was unfair to the lacrosse players, especially in the attention devoted to Ryan McFadyen’s e-mail.
Nonetheless, Kosse concludes that the Duke case could signal an alarming “trend” in which “the media favors the rich, white defendants.” This development could impact “true victims coming forward to tell their stories.” Her evidence? In the articles that she reviewed, a “20% difference” existed “between the sympathy statements for the victim [sic, Mangum] and the offenders [sic, the lacrosse players] in the Duke coverage,” which “actually shows an increase in pro-offender [sic] statements from the ten earlier cases [from 1980 through 1986].” Kosse never explains how favorably describing the personal characteristics of the lacrosse players should be classified as “pro-offender” given that Seligmann, Finnerty, and Dave Evans were innocent.
Kosse’s sources were Newsweek, Time, Sports Illustrated, and People. “I picked,” she writes, “the magazines based on their significant national readership,” and “since the previous [1980-1986] study used magazines, I also chose magazines instead of newspapers or television coverage.”
The media industry, however, changed dramatically between 1986—when national magazines were far more influential than they are today—and 2006. In 1986, cable legal affairs programs didn’t exist; in 2006, they were ubiquitous. In 1986, the New York Times couldn’t be easily read in many parts of the country; in 2006, it’s a click away on the web. In 1986, less than half of American households even had cable TV; now ESPN, not Sports Illustrated, is the overwhelming power in sports news.
Through her selection process, Kosse managed to exclude the wildly biased Times; the guilt-presuming Nancy Grace; and ESPN, which was far more hostile to the players than was Sports Illustrated.
According to Kosse, the Duke case showed that “the media must be careful not to unwittingly advance only one side’s story.” Was she talking about the fawning coverage granted to Mike Nifong’s ethically improper pre-primary publicity crusade? No. Instead, she was describing defense attorneys, who “talked freely and often provided the media with uncontested statements questioning the credibility of the woman. The media seemed eager to report anything the defense had to say.”
Meanwhile, “the victim [sic] has only spoken to reporters once and been out of the public's eye for months. The absence of her viewpoint contrasted starkly with the defense ‘spin’ after the indictments.”
Kosse never defines what specific remarks constituted “defense ‘spin’.” The defense attorneys did say—repeatedly—that their clients were innocent, that there was no evidence of rape, and that Mangum was not credible. As the Attorney General’s investigation revealed, all of those statements were true. Can the truth be considered “defense ‘spin’”?
Kosse does admit that sharp criticisms about Nifong’s political motives existed. But she throws up her hands as to the significance of Nifong’s behavior: “How much impact, if any, this additional narrative had on the rape narrative is impossible to know. Perhaps the reporters were more willing to include pro-offender [sic] information to offset what they perceived to be extreme conduct on the part of the prosecutor in an attempt to use the case as a political opportunity to help him win reelection. Although the political implications complicated the analysis of the case and prohibited absolute findings [sic], it highlights how these factors not directly related to the alleged rape are still present and distract from the goal of finding truth and justice in rape cases.”
As the DHC findings of fact noted, “these factors” were “directly related to the alleged rape”—since without them, no indictments ever would have occurred.
Evaluating the Media
Where, according to Kosse, did the media fail?
1.) “The constant reference to the races of the people involved seemed unnecessary. The media’s highlighting the fact that she was black and the men were white insinuates that this is relevant. In one article readers were even told that the men had requested a white and Hispanic dancer but received two black women, as if this somehow was important information to know.”
Who played the “racial card” in the case? Kosse never says. It was, of course, Mangum herself (who falsely claimed that racial slurs occurred in the house) and Nifong (who highlighted the racial elements for his own purposes).
As to the race of the dancers the players requested—this issue, too, was first injected by Mangum sympathizers such as Duke professor Mark Anthony Neal, who suggested that the players had requested black dancers, deliberately. On April 13, 2006, the Group of 88 member wrote, “Regardless of what happened inside of 610 N. Buchanan Blvd, the young men were hoping to consume something that they felt that a black woman uniquely possessed. If these young men did in fact rape, sodomize, rob, and beat this young women [sic], it wasn’t simply because she was a women [sic], but because she was a black woman.”
I agree completely that the racial aspect of the case was overplayed. But given that Nifong, Mangum, and Duke activist professors were all stressing that element, it should come as little surprise that journalists did so as well, at least initially. The decision of the New York Times to continue framing the case through race and class lenses long after Mangum’s credibility had collapsed is another matter.
2.) “The media’s constant reference to the woman as a stripper and exotic dancer created a problem because it took the focus away from the violent sexual allegations of rape, and instead focused on her conduct before the alleged violation. By bombarding the public with those terms, the myth that the woman provoked or deserved to be raped was reinforced.”
As the Yaeger/Pressler book, the results of the DNA tests, and the defense’s own investigation conclusively established, referring to Mangum as an “exotic dancer” euphemistically described her actual occupation.
Kosse never says how the media should have described Mangum. It’s a quandary, she observes, “because the incident centered around her being hired to dance, and current rape shield laws prevented the reporting her name, the media had a difficult choice about what to call her.”
I know of no “current rape shield laws” that prevent the media from identifying the name of rape accusers. The North Carolina criminal statute certainly contains no such prohibition.
Kosse reasons that Mangum was especially vulnerable to stereotyping, since “she was young, pretty and from a lower class compared to that of the offenders.”
In fact, she was older than any of the accused players. And while many adjectives could be used to describe Mangum’s appearance, “pretty” is not one of them.
3.) Kosse criticizes journalists for using “considerable space in the articles to recreate the events of the party. Several articles described the events leading up to the alleged rape by publishing minute-by-minute summaries based on time-stamped photographs taken by the men.”
Yet these “minute-by-minute summaries” proved critical to the case—as the AG’s report made clear—since they proved that a rape could not have occurred. Should the press have ignored the fact that Reade Seligmann was on a videotape someplace else when Nifong said he was committing a crime?
4.) Kosse’s chief complaint about the media’s performance, however, is its unwillingness to frame all coverage to her liking. “The press,” she asserts, “receives a failing grade for not presenting the narrative in a context that promoted an understanding that rape is a societal problem and not just an individual problem [by] examining the phenomena of rapes on college campuses and specifically rapes and other violent acts by athletes. The privileged upbringings may be relevant to why the patriarchal myths still exist which is what the media should explore instead of listing the real estate particulars of the men’s parents’ homes.”
Again, a rape did not occur. And overwhelming evidence came to light very early on that at least one of the accused people was demonstrably innocent. Why the media should have used a false rape claim to present a “victims’ rights” narrative is unclear.
The pro-defense slant of these titles makes the coverage seem unbalanced and helps perpetuate the ‘woman cries rape for revenge (or money)’ narrative. Since the woman’s credibility was so much at issue in this case, perhaps these titles are perfectly appropriate as they accurately reflect the state of the case. Reporters should consider, however, if these headlines may discourage true victims from coming forward. Constant reference to the credibility of the victim may unintentionally silence women who have real claims. This of course is very tricky for reporters when faced with a possible false charges case. Since the majority of rape charges are legitimate, perhaps the safer choice is for reporters to use more neutral titles, at least in the early stages of a story as occurred in the Duke saga.
In other words, maybe this was a false claim, and maybe Nifong did indict without probable cause and then commit massive misconduct to sustain his case, and maybe the lacrosse players’ professors did advance their personal, professional, and pedagogical agendas on the backs of their own students, but . . . the media should have downplayed these issues and sacrificed the players on the altar of a “victims’ rights” agenda.
That sounds a bit like how the New York Times and the Herald-Sun approached the case.