Monday, November 30, 2009
Tuesday, November 24, 2009
The "Victim" Was a "Girl"
Apart from the obvious—that in both the specifics of the alleged crime and the (to date, non-existent) conduct of the prosecutor the Sacred Heart controversy has no similarities to the Duke lacrosse case—I have no comment on the specifics of the allegations at Sacred Heart. But it is striking to read some of the early press coverage. (Emphasis added throughout.)
The victim told police they got naked and assaulted her.
It’s interesting to discover that Bennett—a mere hours after the allegations first went public—had concluded that a crime had occurred, making the (unnamed) accuser “the victim.”
Daniel Tepfer, Connecticut Post:
According to police, the 18-year-old female victim, from New Jersey, was having consensual sex with Sanders in a room at SHU's Roncali dormitory across Park Avenue from the Fairfield campus when Sanders suddenly held the girl down on the bed and called two other males to join him.
Tepfer softens his discovery that a crime occurred behind the “according to police”—but since his “the 18-year-old female victim” isn’t in quotes, the summary appears to be his own. Like Bennett, he has concluded that a crime occurred, since otherwise, how could the (unnamed) accuser be a victim?
Jessica Wakeman, The Frisky.com:
Sanders allegedly held the victim down while Travers and Triner sexually assaulted her; when she screamed and struggled, Travers and Triner fled the room.
It’s unsurprising, of course, that a feminist blog would automatically conclude that the mere filing of a rape allegation means that a crime occurred, thereby making the accuser “the victim.” But what does it say about the standards of Deadspin and the CT Post that they adopted the same guilt-presuming standard?
On another front, Andrew Strickler, Newsday:
He said all three men involved had been drinking, as had the girl.
The (unnamed) “girl” and two of the (named) “men” in the case are the same age. It’s unclear if Newsday policy suggests differing ages of adulthood for males and females.
While Sanders held the girl down, police said the two other males took off their clothes and sexually assaulted her.
The CT Post doesn’t identify the 18-year-old male suspects as “boys.”
Every article I read about the allegations names the three suspects; none names the accuser. Apart from that point, some early coverage--notably that of Stephanie Rietz of the AP--was scrupulously neutral, and a model for others to follow.
Monday, November 23, 2009
From the Court
Last week featured the latest Craven filing from the Mike Nifong camp. Nifong attorney Jim Craven filed a four-page brief (which included a grand total of 14 lines in his own words) regarding the Pottawatomie case, which I have previously discussed.
Craven’s conclusion? "We suggest that if the Supreme Court rules in favor of the Iowa prosecutors/petitioners on the immunity case, such a ruling would likely apply to the defendant Michael B. Nifong in this case.” Craven’s argument in support of that conclusion? Nothing. Craven devoted not even one of his fourteen lines to offering an argument on behalf of his assertion. He also cited some amicus briefs that actually distinguished the sort of behavior exhibited by Nifong in the lacrosse case from that of the Iowa prosecutors.
To tease out Craven’s (unoffered) argument: if the Supreme Court sides with the Iowa prosecutors, then all prosecutors who decide to personally supervise the police investigation, from a point well before any decision to charge is ultimately made, should be shielded from civil suits regarding any of their misconduct—even as the police officers who they corruptly directed will not be shielded from civil suits.
The Court’s oral argument offered little to bolster Nifong’s Craven view. Only two justices, John Roberts and Samuel Alito, seemed indifferent to designing a solution that might hold the Iowa prosecutors accountable for their actions; the duo has a well-deserved reputation for taking the government’s side regarding virtually all criminal justice issues, so their pro-prosecutors position in the oral argument came as little surprise. As usual, Clarence Thomas didn’t ask any questions in the session; the other six justices appeared to have an open mind about the case.
Attorney Stephen Sanders , representing the two ethically challenged Iowa prosecutors, went out of his way to frame his claim in such a way that it would not apply to the behavior Mike Nifong exhibited in the lacrosse case. “If a prosecutor’s absolute immunity in judicial proceedings means anything,” declared Sanders, “it means that a prosecutor may not be sued because a trial has ended in a conviction. Yet that is exactly what happened in this case.” Of course, in the lacrosse case, Nifong never took his manufactured evidence to trial, so never had the opportunity to establish the immunity that Sanders feels his clients deserve.
The attorney couldn’t have been clearer on this point: “There is no disjunction between observing that a prosecutor, like a police officer, has only qualified immunity during the investigation [emphasis added] while, at the same time, insisting that that does not affect the fact that the prosecutor has absolute [immunity].” Nifong’s key misconduct—his improper public statements, his withholding of exculpatory evidence, his ordering the police to run a lineup that blatantly violated their own procedures, his decision to go ahead with the case though lacking in probable cause—all occurred “during the investigation,” or when Nifong, the elected DA, improperly assumed personal control of the police investigation.
When asked by Justice Ruth Ginsburg whether he was envisioning a process in which police officers who manufactured evidence would receive only qualified immunity while a prosecutor who engaged in comparable conduct but didn’t try the case would receive absolute immunity, Sanders demurred. The prosecutor’s role would be same as police officer who was subject to civil suit, he reasoned,"if the prosecutor in the second case that you hypothesize had nothing to do with the later prosecution”—as occurred with Nifong in the lacrosse case.
Ginsburg summarized the Iowa prosecutor’s position: “You can have a prosecutor, who wasn’t involved in the trial, [who] would have liability.” Sanders agreed.
So Craven, it appears, is counting on the Supreme Court not only deciding in favor of the Iowa prosecutors but issuing a ruling going beyond what the attorney for the prosecutors desired. That’s possible, but unlikely.
One point in the oral argument showed just how extraordinary Nifong’s usurpation of the police role in was. Justice Stephen Breyer seemed unsympathetic to the prosecutors, but he worried about the effects of a decision allowing civil suits to go forward, lest such a ruling make prosecutors gun-shy about moving in to check out-of-control police officers. “All things being equal,” Breyer maintained, “I think it’s probably a good thing to get prosecutors involved in the questioning process” early. “That has kind of a check on police.” Breyer continued: “The concern I’d have is that the—this will discourage the prosecutors from becoming involved in the witness—witness questioning process, at least not before the police are well on the way. And that is a very negative incentive, I would think.”
Breyer, obviously, has never met Mike Nifong.
Monday, November 09, 2009
The media generally does not withhold information as a matter of official policy. But, to my knowledge, every major newspaper in the country has an official policy of not reporting the names of accusers in rape or sexual assault cases. (I’m not aware of any paper that has a policy of refusing to report the name of suspects in sexual assault cases.) Though this practice stems from good intentions (a belief that the reporting of accusers’ names will make some real victims unlikely to report the crime), the net effect subtly shades reporting in favor of the suspect’s guilt.
With that extraordinary backdrop in mind—that every newspaper already has a policy of framing coverage of sexual assault cases in such a way that suggests readers should accept the validity of the accuser’s story—comes a recent Chronicle letter from a UNC biostatistics professor named Eric Bair. Bair criticized the Chronicle for using the word “alleged” to describe events in an article detailing the filing of rape charges against a Duke police officer. “Can’t we just say,” the UNC professor mused, “‘she was raped’”?
Bair’s letter explained his reasoning. He conceded that the suspect, Officer Webster Simmons, “is innocent until proven guilty,” and that it was acceptable for the Chronicle to write that the accuser had identified Webster as her alleged attacker. And he further admitted—albeit obliquely—that the Duke campus had first-hand experience with a woman who said “she was raped” having spectacularly lied about the claim.
Nonetheless, Bair described the version of events presented by Simmons’ accuser as “the victim”—not even “alleged” victim—as entitled to belief by the media. (Why newspapers should accept as true what an accuser says about an alleged crime but not trust her identification of the alleged criminal Bair didn’t say.) The Chronicle’s using terms such as “the alleged attack,” “the alleged assault,” “the alleged rape” and “the alleged victim” could be seen as “creating an environment where all women who report a rape are presumed to be liars until they can prove otherwise.” Indeed, continued Bair, “a cynic might suggest that the editors of the Chronicle believe that the reports of rape victims are inherently unreliable.” (A non-cynic might suggest that, in the aftermath of Crystal Mangum’s fantastic lies, the Chronicle has, appropriately, decided to be neutral in reporting the specifics of allegations of rape.)
The policy, Bair concluded, could be seen as “casting doubt on the credibility of rape victims generally or discouraging other women from reporting incidents of rape.” In other words: to not discourage true rape victims from coming forward, newspapers must not only not report their names but must accept everything they say (apart, apparently, from the identity of their alleged assailant) as true.
In response to several pointed comments in the Chronicle discussion thread, Bair held his ground, suggesting that because the Chronicle doesn’t regularly use the word “alleged” to describe other crimes, it shouldn’t do so in describing sexual assault. I e-mailed Bair to ask him if his proposed standard didn’t excuse the (widely condemned) early, credible coverage of the Nifong/Mangum lies. He graciously responded, suggesting that based on his knowledge of the lacrosse case, “there was virtually no physical evidence to corroborate the woman’s [Mangum’s] claims of rape and that the entire thing was the result of a district attorney who was afraid of losing reelection of he didn’t prosecute the case.”
The issue, he continued, is a “difficult” one—balancing the public’s right to know about violent crimes versus protecting the rights of the accused. However, whatever standard a particular newspaper (or the media generally) chooses to adopt, I think it should be applied consistently . . . If the Chronicle were describing every single crime report as an ‘alleged’ incident, I wouldn’t have a major issue with the reporting. However, the fact that they only seem to be doing this in a particular report about rape suggests that the author in question or the editorial board of the Chronicle believe that reports of rape are intrinsically less credible than reports of other crimes. Given that many women are already afraid to report rape cases for fear that they will not be believed, I find that to be very troubling.”
But, of course, the burden of proof about whether a crime occurred in sexual assault differs from that of most other crimes. Take, for instance, murder: police investigate the crime only when they discover a body (or, in highly unusual cases, when they conclude that a missing person was in fact killed). Or robbery: police make a charge only after their investigation discovers that something was, in fact, robbed. Or kidnapping: police make an arrest only after their investigation produces evidence that someone was kidnapped.
With regard to sexual assault, on the other hand, North Carolina law (and that of most other states) requires no corroborating evidence: a person can be convicted of rape solely on the basis of the accuser’s testimony and in-court identification (even if the accused is, say, on a videotape more than a mile away at the time of the alleged “crime”).
Because a lower burden of proof is necessary to bring charges in a sexual assault case, the range of possible defenses is much wider. A suspect accused of murder can’t credibly claim that the victim wasn’t actually murdered. Except in highly unusual cases, a suspect in an armed robbery can’t credibly claim that the victim or institution wasn’t robbed. But in a rape case, a central line of defense can be—and often is—that no crime occurred in the first place. Bair’s standard suggests that newspapers should unequivocally declare that such a line of defense is false, by accepting as true the accuser’s claim of being attacked.
The issue is, as Bair suggests, a “difficult” one. But it is made more difficult by the media’s more general policy in rape cases of not reporting all the facts by withholding information about the accuser’s identity. Given that most sexual assault reporting already tilts toward the accuser, it’s hard to fault the Chronicle for not electing to accept, from the beginning, everything the accuser says (apart from the ID) as absolutely true.
hat tip: Anon.
Monday, November 02, 2009
News & Notes
Few journalists performed as poorly in the lacrosse case as Samiha Khanna. Virtually every statement in her N&O interview with false accuser Crystal Mangum turned out to be wrong. Khanna seemed not to have even bothered to do a basic reporting task—checking her interviewee’s name in the N&O database—which would have uncovered not only Mangum’s criminal conviction but would have proved that Mangum had lied to Khanna in claiming that she was a newcomer to the world of exotic dancing.
Perhaps most problematically, Khanna conceded that she was approaching the case through a far-left ideological prism: "I think Tim Tyson taught readers Sunday about a history not many were aware had occurred. Durham is a place of many new residents, people who may not have the institutional knowledge of the university's history in the community. We are trying to explore these notions as we follow up on the story in the coming weeks. In response to your specific question about Mr. Tyson’s piece—I haven’t seen an equivalent piece in other publications. Many people have spoken out about a history of sex crimes on college campuses, but not issues of race and gender on the Duke campus specifically. These are keys to thorough follow-up stories that we are working to document." [emphases added] Liestoppers correctly termed Khanna’s reporting on the case “irresponsible and willfully misleading.”
Khanna was downsized from the N&O in 2008 and spent nearly a year outside the journalism industry (as a “public relations specialist”). That’s no surprise: with the financial difficulties that journalism is currently experiencing, good reporters are having trouble getting jobs—to say nothing of figures such as Khanna.
Incredibly, however, she’s back working as a reporter—though at an entity where the sort of ideological bias she demonstrated in the lacrosse case is a job requirement. Khanna is now a beat reporter for The Independent, which formed a critical element of the Nifong base of “true believers.” Khanna’s brand of “journalism” is exactly what people expect from the Indy.
Jesse Jackson managed to insert himself back into case-related news last week. In an interview with the Greensboro newspaper, Jackson gave his take on the case:
“The good news is those boys’ parents paid to get the proper legal representation and get them vindicated. So often, young black youth and youth who are poor, don’t have legal protection. That’s why you have 2.3 million Americans in prison.”
That’s a very different interpretation than Jackson originally offered. First, of course, Jackson stated that his organization’s donors would pay Mangum’s college tuition, even if (as ultimately occurred) it was proved that Mangum had lied. Second, he published a column riddled with false assertions: that “this was the first time [Crystal Mangum] had been hired to dance for a party”; that “the one African American on the team wasn’t there”; that “we know that the two women were abused”; that “the Duke players are maintaining a code of silence”; that “it shouldn’t take the brutalizing of a mother of two” to “lead colleges across the country to hold searching discussions about racial and sexual stereotypes, exposing the myths that entrap so many.”
And a year after writing those words, the Rev. Jackson maintained, “I didn’t make a mistake.”
Of course he didn’t. And now he’s on the scene to preach “the good news.”
A couple of follow-up items from the comment thread regarding other experiences with the Duke fundraising arm:
I’ve had a similar experience to that of “ES Class of 1990.” For 3 years now I’ve responded to solicitations from Duke by saying that the funds I would otherwise give are “on hold” until the civil suits are resolved, because I believe the university should not be spending donor money on legal fees supporting the defense of various administrators who were not acting in the best interest of the institution and who made serious (and entirely avoidable) mistakes in judgment. This year, the student who placed the call had “talking points” about how the annual fund could not be spent on legal fees. (As if the annual fund couldn’t be spent on other things that could then free up funds from other accounts to pay legal fees!) In any event, Duke annual giving is prepared to encounter resistance from alumni who are questioning whether the institution is deserving of their largess given the current state of leadership.
The telephone exchanges I’ve had with Duke students dialing for dollars, once or twice annually, have been nearly identical to the one reported by ES Class of 1990.
Generally, the talking points for cheerful, optimistic, true blue Dukies seem to be along the line: The lacrosse affair was a long time ago, it was an unfortunate isolated incident not indicative of what’s great about our wonderful university, President Brodhead made an eloquent apology (have you seen the video?), and all that’s behind us now.
I usually ask about the status of the ongoing lawsuits, and why have several members of the Group of 88 professors been rewarded with positions of leadership and increased responsibility.
That’s where the conversations abruptly end.
Monday, October 26, 2009
In the Can
I recently received an email from DIW reader and commenter ES Class of 1990. He reports:
I got a fundraising call from a Duke Freshman this evening. This is a tried and true Duke event, in which living groups raise money for Duke and get a slice for their group or cause...I have done it myself. It is called “Dialing for Dollars.”
When I informed the polite young lady that I would not contribute to the university in any financial way until there had been an accounting of the behavior of the Gang of 88, she pointed out to me that Brodhead had in fact apologized and that the video was on YouTube. I countered that they still had not addressed the fact that several students had their rights to privacy violated and that faculty had in fact violated their own code of conduct...both events that would preclude any giving on my part until they had been sorted out in a public forum. I wished her good luck and ended the call.
It hit me later...they had a planned, “in the can” counter to the Gang of 88 argument! ”Look here, the President DID apologize, and here is the URL.” They clearly had been briefed and coached to deflect this argument to giving, knowing that it would be a sticking point with alums.
Is that amazing or what?
Indeed the news is amazing, for at least three reasons beyond the obvious: the fact Duke has an “in the can” response suggests this issue regularly comes up in fundraising pleas.
1.)These remarks represent the first acknowledgement by anyone affiliated with Duke that Brodhead’s September 2007 statement referred to the Group of 88. In his remarks, the President didn’t specifically reference the Group, but merely apologized for ill-judged and divisive comments by unnamed Duke professors.
2.) While it’s nice to know that Duke finally recognizes the Group’s statement as “ill-judged and divisive,” the acknowledgement raises the question of why Brodhead’s apology never accompanied any policy changes to deal with the problem that the Group’s statement illustrated.
In that respect, the “apology” is a little like an apology from a neighbor whose little boy regularly tosses a baseball through your window—but who does nothing to ensure that the little boy sees that he did something wrong; or to ensure that the following day, the little boy doesn’t again toss the same ball, in the same direction, and through the same window. At some point, the “apology” rings a little hollow.
3.) ES’s point about Duke not living up to its own standards is well-taken—even more so in light of a front-page story from yesterday’s Times. The article profiled a deeply troubling move by the Cook County (Ill.) State’s Attorney to subpoena records, including grades, from the student journalists in the Medill Innocence Project, a program at Northwestern’s journalism school. The interim director of the Illinois Press Association observed, “Taken to its logical conclusion, what they’re trying to do is dismantle the project."
Faced with a dubious demand from a local prosecutor that would seem to violate the federally protected rights of its students, how is Northwestern responding? The dean of the Medill School blasted the subpoena as “astonishing” and has committed the institution to vigorously contesting the prosecution’s demands in court. Such a response, of course, would be fully expected, both by parents and by the Congress that passed FERPA.
Contrast the Northwestern approach to defending students’ federally protected rights to that of Duke. When the Durham Police, working alongside the disgraced ex-DA Mike Nifong, demanded that Duke turn over FERPA-protected information regarding the lacrosse players, Duke did so willingly. Then, stunningly, the University didn’t come clean about what it had done—even after a subsequent court hearing on the request resulted in even the prosecution-friendly Judge Titus ruling that Nifong’s demand fell afoul of federal law.
Brodhead, it should be noted, never apologized for the FERPA fiasco.
Monday, October 19, 2009
Pottawatamie County & Nifong
In 1978, in Iowa’s Pottawattamie County, a retired police officer working as a security guard was murdered. Police and prosecutorial attention rapidly focused on Curtis McGhee and Terry Harrington. The two suspects were tried, convicted, and imprisoned for more than two decades.
But, it turns out, massive misconduct occurred in the case. The prosecutors never informed defense lawyers that police had another suspect in the killing. Nor did they reveal that they seem to have coached a key witness in the case to give fabricated evidence against McGhee and Harrington. When this information surfaced, in 2002, the Iowa Supreme Court vacated one conviction, and the other defendant accepted a plea bargain allowing him to go free immediately. Both McGhee and Harrington then filed suit against the police department and against the two prosecutors, Joseph Hrvol and David Richter, who had manufactured the evidence against them.
The prosecutors sought to have the lawsuit dismissed, claiming that they possessed absolute immunity for their acts. But lower courts ruled against them, and their case now goes before the Supreme Court.
The case has attracted a number of amicus briefs. Among the most persuasive: that from the libertarian Cato Institute, the ACLU, and the National Association of Criminal Defense Attorneys. Filing amicus briefs on behalf of the ethically challenged prosecutors were the Justice Department and the National District Attorneys Association. Both briefs contend that abandoning absolute civil immunity for prosecutorial behavior would make prosecutors so afraid of being sued that they won’t be able to do their jobs.
The Justice Department argues, “If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm.” Or, in the words of the NDAA brief, “The inevitable consequence of broader civil liability will be the chilling of the essential exercise of wholly constitutional efforts to prosecute criminal defendants.” The greater good dictates absolute civil immunity for prosecutors.
In her brief, Solicitor General Elena Kagan also argues for reversal of the lower-court rulings on the grounds that the Supreme Court “has never said that a prosecutor can be liable for actions at trial, simply because they relate back to earlier conduct at the investigatory stage (i.e., before probable cause is established). To do so would transform the absolute immunity of Imbler [which provides absolute immunity to prosecutors for activities “intimately associated with the judicial phase of the criminal process”] into little more than a pleading rule; plaintiffs barred under Imbler would simply draft their complaint to refer to the prosecutor's investigation and preparation of the case instead of his activity at trial.”
The DOJ/DNAA argument is quite breathtaking. As Radley Balko has argued, the Pottawattamie side of the case contends “that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.”
The Justice department and the NDAA make a second argument: namely, that other options—such as disbarment or even, in extreme instances, criminal prosecution—exist to sanction ethically challenged prosecutors. Among the examples favorably cited in the NDAA brief: the removal of Mike Nifong as Durham County District Attorney.
At first blush, and even though his termination from the legal profession was celebrated in one of these filings, the DOJ and NDAA briefs might seem like good news for Nifong, as he desperately seeks to avoid civil liability for his misconduct. In fact, however, both briefs—especially that of the Justice Department—confirm that Nifong’s behavior in the lacrosse case fell outside the bounds of any conceivable definition of appropriate prosecutorial conduct. And if even these extremely aggressive defenses of prosecutorial immunity don’t cover Nifong’s behavior, the disgraced ex-DA would seem to be in trouble.
“Prosecutors,” according to the Justice Department, “may not be held liable for fabricating evidence they introduce at trial, even though police officers who fabricate evidence may be held liable under Section 1983.” In fact, “even an unconscionable act of fabrication does not transform a prosecutor's acts at trial into a source of civil liability.”
But Nifong, of course, was supervising the police investigation before any finding of probable cause (the grand jury indictment based on admittedly false testimony from ex-Sgt. Mark Gottlieb) had occurred. In a highly unusual move, he assumed personal command of the police investigation ten days after Crystal Mangum made her initial false charges. No representative of the Durham Police Department or city government has ever provided an explanation as to why the police, in violation of custom and procedures, ceded control of their investigation to the prosecutor on March 24, 2006.
The Justice Department, in a passage that could have been tailored to describe Nifong’s behavior, conceded that “prosecutors may remain liable for any number of investigation-stage activities, as to which they enjoy only qualified immunity—for example, conducting searches and seizures that violate the Fourth Amendment.” In Nifong’s case, such behavior would be his conspiring with lab director Brian Meehan to produce an incomplete and misleading report; or ordering the police to run a third lineup, which violated their procedures and was confined to the suspects in the case.
That said, according to the Justice Department, “liability for procurement is not predicated on the simple act of fabricating the evidence; if there were no subsequent use of the evidence, there would be no liability.” But Nifong did use the fabricated evidence: the fabricated item (the lineup) provided the only specific material used against the three people that Nifong targeted.
One final item from the Justice Department brief that’s damning to Nifong. The brief maintains, “‘On facts like those alleged here, a person who bears the title prosecutor, but who ‘perform[ed] [only] the investigative functions normally performed by a detective or police officer,’ Buckley, 509 U.S. at 273, would be liable. The exemption from liability in this case, although absolute, applies only to a discrete set of individuals for a discrete set of activities.”
The passage unveils a bizarre DOJ claim that prosecutors must have absolute immunity as soon as they introduce their manufactured or improperly obtained evidence at trial. If, however, someone else handles the case, the initial prosecutor would be civilly liable. As no trial ever occurred in the lacrosse case, Nifong would seem to be additionally vulnerable.
In short, for Nifong, even superficially good news turns out to be bad.
Saturday, October 17, 2009
Academic Free Speech
In 2006, even as the police had barely begun their investigation, Duke University President Richard Brodhead lent the prestige of his office to faculty members' prosecution and conviction in the court of public opinion of three members of the Duke lacrosse team falsely accused of gang raping an African-American exotic dancer. It turned out they were being pursued by a rogue prosecutor. To be sure, it was only a vocal minority at Duke who led the public rush to judgment. But the vast majority of the faculty stood idly by, never rising to defend the presumption of innocence and the requirements of fair process. Perhaps Duke faculty members did not realize or perhaps they did not care that these formal and fundamental protections against the abuse of power belong among the conditions essential to the lively exchange of ideas at the heart of liberal education.
Monday, October 12, 2009
More from the Group
While Wahneema Lubiano—she who wrote, without any citation, that “many whites . . . might not ever be persuaded by appeals to reason, to what we ‘know’ and agree to be ‘truth’—that all men/women were created equal, for example”—is busy tending to all Duke undergraduates through her position as a departmental director of undergraduate education, three other Group members made news last week.
Duke’s Ariel Dorfman is a professor who:
- publicly asserted that something “happened” to Crystal Mangum, based solely on the version of events presented by the disgraced Mike Nifong
- publicly thanked protesters who had presumed the guilt of students at his own institution;
- committed himself to “turning up the volume” regardless of “what the police say or the court decides”;
- and, after the version of events about which he had expressed such public certainty turned out to be false, signed onto another statement in which he adamantly refused to apologize for his rush to judgment.
To give Dorfman the benefit of the doubt, perhaps it might be said that the Duke professor is a fanatical “anti-rape” activist, someone who believes that whenever a woman claims rape, the accusation must be treated as true; and that those targeted by such accusations must be punished to the fullest extent of the law, regardless of the evidence.
Such views, of course, would contradict the academy’s traditional support for due process—but, as we all learned in the lacrosse case, such views are in short supply among many Duke humanities and social sciences departments.
Even assuming the above, however, what explanation exists for the below screenshot, from the “Free Roman Polanski” petition?
So, to sum up: Dorfman believes that Polanski—a man who pled guilty to sexual misconduct with a minor, in an event in which his victim (and, given the guilty plea, she can be called a “victim”) claimed that Polanski had drugged her and then pursued her throughout the house; and a man who then fled the country before his sentencing hearing—should be freed; and he also believes that it was appropriate to thank guilt-presuming protesters in a case involving his own students, a case in which the claims against his students turned out to be false.
The guilty should go free and the innocent should be punished. That sounds a lot like the judicial philosophy of the Pinochet regime in Chile, against which Prof. Dorfman once wrote so eloquently.
Then there is the case of Group member Michael Hardt, whose latest publication was subjected to a blistering review from City Journal editor Brian Anderson.
Here’s the description Anderson provided of Hardt’s co-author, Antonio Negri: “Three decades ago, the Italian government believed that he was the secret intellectual leader of the leftist terrorists called the Red Brigades and that he was the architect of the group’s 1978 kidnapping and murder of Christian Democratic Party leader Aldo Moro. Unable to build a sufficient case to try Mr. Negri for murder—he has always denied the allegation—Italian authorities convicted him of ‘armed insurrection against the state.’ Facing 30 years in the slammer, Mr. Negri scooted to France, where he remained, a philosopher in exile, until 1997, when he returned to Italy to serve the remainder of a reduced sentence. He is a left-wing guru whose field work has occurred far from the faculty lounge.”
As for the book itself, here’s some more from Anderson:
For the revolution to succeed, three supposedly corrupt forms of the common must be destroyed. Some of the harshest language in “Commonwealth” targets the family: Mom, dad and the kids might not know it, but they are part of a “pathetic” institution, a “machine” that “grinds down and crushes the common” with “the blindest egoism.” Messrs. Hardt and Negri cry: “Down with the family!” The two other killers of the world’s spirit: the corporation and the nation. When the multitude seizes “control of the means of production and reproduction,” we’re promised, the evil trio will wind up on Marx’s ash heap of history.
The authors warn the rulers of the capitalist world that if they want to survive a little longer, they need to enact reforms, including global citizenship, a right to income for everyone and participatory democracy. But Messrs. Hardt and Negri don’t think that their warning will be heeded. Revolution will erupt—and soon. It could be violent, a prospect that does not seem to trouble them: “What is the best weapon against the ruling powers—guns, peaceful street demonstrations, exodus, media campaigns, labor strikes, transgressing gender norms, silence, irony, or many others—depends on the situation.” Pirates, the rioting Muslim banlieusards of Paris and the Black Panthers all are praised in Commonwealth as heroes of disruption.
Anderson’s devastating summary: “Messrs. Hardt and Negri make little effort to build arguments in support of their wild assertions and predictions. They write as if ignorant of the 20th century and of much else, including economics and social science.”
Finally: the case of Cathy Davidson. All who followed the lacrosse case closely know that . . . memory problems . . . bedeviled Prof. Davidson in 2006 and 2007. After all, this is the same professor who preposterously claimed that in the week between March 29, 2006 and April 5, 2006, Duke students "felt demeaned by racist and sexist remarks swirling around in the media and on the campus quad in the aftermath of what happened on March 13 in the lacrosse house. The insults, at that time, were rampant. It was as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women."
In fact, during that week, Mike Nifong dominated the airwaves, virtually no one was defending the lacrosse players (much less doing so through "pernicious stereotypes about African-Americans," activists flooded the Duke campus with "wanted" posters of the lacrosse players, and Richard Brodhead made time to meet with African-American students who demanded recognition of the lacrosse players as guilty of a "hate crime" even as he refused to meet with the lacrosse players' parents or lawyers.
Now, Emory professor Mark Bauerlein has revealed that Prof. Davidson's . . . memory problems . . . predated her experience in the lacrosse case. Bauerlein notes that, in Davidson's 2004 apologia for the overwhelming political imbalance among the Duke faculty, "Either as a department member or a member of the APT [appointments, promotions, and tenure] committee, I've not encountered any Duke faculty member being harassed or discriminated against because he or she is conservative."
Yet Bauerlein has uncovered a letter from Davidson that contradicts her firm 2004 assertion. In an extraordinarily high-profile event from the pre-Keohane/Chafe Duke, then-English professor Stanley Fish (chairman of the department of which Davidson was a member) demanded that Duke not appoint any member of the National Association of Scholars to an APT or distinguished professor position. As Bauerlein noted, "Obviously, Fish's request marked a patent act of discrimination on ideological grounds."
Anyone who heard her 2004 statement might have assumed that Davidson was unaware of Fish's request. Yet Bauerlein has uncovered a letter from Davidson in the Fish Papers, in which she praised Fish's performance as chair. She also noted, "Although I do not agree with the tactics that he (reportedly) suggested with respect to the NAS debate, I also do not at all see him speaking for me in this matter and find it curious that, in the name of free speech, his voicing of his views is being condemned." (In other words: Fish wanted to exclude professors from appointments committees because of their political or pedagogical beliefs--and yet he was the victim in the affair.)
In any event, it appears that sometime between the early 1990s and her 2004 remarks, Prof. Davidson . . . forgot . . . about Prof. Fish's efforts to harass or discriminate against Duke faculty members "because he or she is conservative."
Given her recurring . . . memory problems . . . perhaps it is better that Prof. Davidson no longer does her own grading, and has ceded that basic professional responsibility to the students in her class.
Professors Dorfman, Hardt, and Davidson, it’s worth reiterating, are among the Group of 88's most prestigious scholars.
Wednesday, October 07, 2009
A Treat for Duke Students
An ability to deal with all students, regardless of race, ethnicity, gender, or belief systems, would seem to be a minimum requirement for the position. For instance, a professor who believed that “many blacks . . . might not ever be persuaded by appeals to reason, to what we ‘know’ and agree to be ‘truth’—that all men/women were created equal, for example,” would be a problematic choice for deputy.
The current director of undergraduate studies of the Duke African-American Studies Department is none other than . . . Wahneema Lubiano, she of the opinion that “many whites . . . might not ever be persuaded by appeals to reason, to what we ‘know’ and agree to be ‘truth’—that all men/women were created equal, for example.”
Well, of course, students treated unfairly could always appeal to the department's fair-minded chair--J. Lorand Matory, the sponsor of the anti-Summers resolution at Harvard.
Monday, October 05, 2009
Updates, Including Bob Steel's Latest
If I were looking for the identity of someone least likely to be named trustee for a major hospital, former Duke BOT chairman Bob Steel would be high on the list. Leaving aside Steel's ill-fated performance at Wachovia, Duke under Steel's leadership paid out millions of dollars in settlements and legal fees from lawsuits stimulated, in large part, by the dubious conduct at Duke University Hospital.
And yet, as Dr. Roy Poses reports at the fine blog Health Care Renewal, the Hospital for Special Surgery has just appointed none other than . . . Bob Steel . . . as its newest trustee.
Poses concludes, correctly if sadly, "Mr Steel's unlikely career trajectory shows how once someone becomes a member of the superclass, the new power elite that spans business, government, and academics, that person is likely to continue to wield power no matter how poor his or her track-record, to the detriment of nearly everyone else."
Over the past few years, we all have learned just how intensely some in the higher education community believe—indeed, given their ideology, have to believe—that sexual assault is widespread on today’s college campuses.
Sometimes, these figures follow the approach of the “clarifying” faculty in the lacrosse case, simply issuing public statements declaring that sexual assault is “prevalent” on the Duke campus even though the university’s own figures indicated that 0.1 percent of Duke females had been victims of sexual assault. (And, of course, the “clarifying” faculty did everything they could to downplay the rape of someone like former Duke student Katie Rouse, since that attack didn’t fit into their worldview.)
At other times, these figures follow the approach of the Duke women’s center, and champion new judicial procedures that will tilt the judicial playing field blatantly in the accuser’s favor, apparently from a belief that as women don’t lie about being raped, those women who claim to have been raped should be ensured of a conviction.
And then there’s the case of Jennifer Beeman, the former director of the Campus Violence Prevention Program at University of California-Davis. The number of rapes that have occurred at Davis didn’t fit Beeman’s ideological preconceptions. So in 2005, 2006, and 2007, she simply inflated the figures. And the Sacramento Bee discovered that Beeman was doing it for some time—and used her made-up figures as the basis for which to apply for federal grants.
Incredibly, when Beeman’s 2005-7 inflated figures were first brought to the University’s attention, Davis’ response was to suggest that her made-up figures were proof of her having created a “nationally recognized … model program for its outreach efforts and services for survivors.”
Only in academia.
The Durham Police Department is again under fire, and, as in the lacrosse case, again seems to believe that its own rules and regulations do not apply to its officers.
The North Carolina SBI is investigating a scandal regarding the Police Department billing the city for excessive overtime.
Will the usual suspects blame the inquiry on wealthy outsiders?
I supported AG Roy Cooper’s decision not to prosecute false accuser Crystal Mangum, largely because there’s no way he could have gotten a conviction. Magnum could have claimed that she was psychologically unable to tell the truth (and had 1000 pages of files to back her up); or she could have claimed that as the city’s police force and county’s “minister of justice” believed her, that should qualify as reasonable doubt to beat charges of her filing a false police report.
It’s much harder, on the other hand, to support the decision of Nassau County DA Kathleen Rice not to prosecute the Hofstra case false accuser, Danmell Ndonye.
In this respect, I agree completely with Newsday’s editorial board, which noted, “Rice justifies her decision not to prosecute because it would have a ‘chilling effect,’ making actual victims fearful to come forward. That concern is misplaced. Historically, police and prosecutors have been hostile to women who made rape charges, but the consensus now in law enforcement is that these cases should be fully and aggressively prosecuted. For legitimate claims to be taken seriously, however, society must also know that phony ones will be punished. That’s what will make the voice of every true victim even stronger. Instead, Rice’s resolution risks creating the perception that there isn't much downside to making up a story that could have sent someone to jail for 25 years.”
Hat tips: M.S., D.P.
Monday, September 28, 2009
More from Yale & Hofstra
Writing at cbsnews.com, legal analyst Andrew Cohen expressed concern about the legal impact of the massive publicity in the Yale murder case. Taking note of the breathless reporting from “anonymous” sources, Cohen noted that “it’s no wonder that [defendant Raymond] Clark’s attorneys now are talking about opening a legal ethics case into the way prosecutors and the police have trampled upon Clark’s fair trial rights, and his constitutionally-protected presumption of innocence.”
Cohen is absolutely correct in his concern. Of course, what Clark has encountered paled in comparison to what the falsely accused Duke students received. The New Haven district attorney didn’t (to my knowledge) give 50-70 interviews to the local, state, and national reporters—as the disbarred Mike Nifong did. Clark’s mugshot didn’t appear on the cover of Newsweek (and with a headline prominently featuring the word “lies”)—as Reade Seligmann’s and Collin Finnerty’s did. And, of course, a crime actually occurred in the New Haven case—whereas Duke featured only constantly shifting and mutually contradictory allegations of a crime.
Given that the publicity orchestrated by Nifong and almost gleefully amplified by the media was even more intense than what Clark has been subjected to, some might assume that Cohen was, at the least, equally outspoken in his criticism of how the Duke case publicity trampled upon the players’ fair trial rights, and their constitutionally protected presumption of innocence.
Cohen was outspoken in the Duke case, of course, but concerns with due process or “legal ethics” did not figure high in the commentator’s analysis.
Indeed, in a late June 2006 washingtonpost.com column, Cohen preposterously claimed that the media had rushed to the “defense” of the Duke defendants. (So that was why two editors of the Times apologized for their biased coverage!) Ignoring that Newsweek cover, most of the first few weeks of the case, and everything published in the Times or broadcast on Nancy Grace, Cohen maintained “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” He demanded for Mike Nifong and Nifong’s Durham supporters “the privilege of seeing the case unfold at trial the way it is supposed to.”
What explains the imbalance—to borrow a word—in Cohen’s analysis? His assertion that the lacrosse players benefited from “race and money.” Clark, on the other hand, while white does not appear to have upper-class or upper-middle-class parents. And so, to cbs.com’s “chief legal analyst,” the pre-trial coverage of his case is a threat to due process, while Nifong’s massive misconduct and the mainstream media’s rush to judgment appeared of no concern.
In Slate, Emily Bazelon made the following observation: “The Hofstra University gang rape that wasn’t is the sped-up version of the Duke lacrosse rape. In the Duke scenario, a woman who’d been brought in to dance at a lacrosse party said she was the victim of a brutal 30-minute gang rape in the bathroom by three lacrosse players. Durham County District Attorney Mike Nifong got caught up in prosecuting the charges and defending the false accuser to the point of professional insanity."
That strikes me as an awfully generous description of Nifong’s motivations, in that it ignores the conclusion of the State Bar’s ethics panel that “self-interest” formed the basis of Nifong’s actions. And, of course, in the lacrosse case, no contact of any kind occurred, unlike in the Hofstra case.
Bazelon further observes, “The weird lesson for men who have group sex in bathrooms: Film it on your cell phone. Five minutes of video of the sex, which one of the men gave the cops, apparently persuaded the 18-year-old to take back her original story. At another moment, such a video might have gotten the guys in trouble for making porn and for sexting. But this time, it seems to have saved them.”
That certainly is a lesson applicable for Duke students: as I have noted before, videotaping sexual encounters appears to be the only way to guard against the filing of false sexual assault charges under Duke’s new policy, whose procedures are tilted blatantly in favor of the accuser.
Finally, something that the Nifong-rationalizing Andrew Cohen might want to take note of: the main reason that “the Hofstra University gang rape that wasn’t is the sped-up version of the Duke lacrosse rape” is that the Nassau County DA’s office was willing to look at the exculpatory evidence that the suspects possessed.
In response to the filing of false sexual assault charges by one of his institution’s students, Hofstra president Stuart Rabinowitz issued a statement, in which he asserted:
We will redouble our educational efforts and try to increase awareness among students, faculty, and staff of any potential signs of danger or dangerous behavior, and the need to pass that information on to Public Safety so that it can be adequately and appropriately addressed . . . I will be appointing a Presidential Task Force under the direction of the Vice President for Student Affairs and the Vice President for Facilities and Operations and consisting of representatives from students, faculty and administrators, to undertake a review of all aspects of security, including operations, communications, programs, policies and procedures to insure that we are taking every possible precaution to maintain a secure and safe campus. In addition, we will once again be seeking to utilize the services of an outside consultant to conduct a security audit and make recommendations as to best practices and possible enhancements to our program.
Again: the issue in this case was a Hofstra student making up a false rape claim. How would a security audit address that issue—will Hofstra security officers increase campus patrols, on the lookout for women who make false rape claims in their midst?
One last item: the Nassau County DA's office has announced that it will not file charges against the rape false accuser, Danmell Ndonye. The reason, according to the New York Post: "Prosecutors defended not bringing charges against Ndonye, saying that if they did, she would have faced only mental-health treatment and community service because of her age and lack of a criminal record."
This was about as obvious a case of filing false charges as possible: a videotape showed that Ndonye had lied, and Ndonye admitted that she had lied. Yet even in this sort of case, where Ndonye's word and Ndonye's word alone could have sent innocent people to jail for decades, the maximum punishment she could have received was a slap on the wrist. To, again, borrow Andrew Cohen's phrasing, there's something out of balance in this sort of arrangement.
Wednesday, September 23, 2009
The Times, the Post, and Hofstra
The name “Crystal Mangum” only appeared on the news pages of the New York Times after Mangum published her “memoir.” Carrying its policy of not naming sexual assault accusers to an absurdist extreme, the Times refused to use Mangum’s name when reporting on Attorney General Cooper’s announcement that Mangum’s myriad, mutually contradictory claims were wholly false and without any evidence.
While the Times made coverage of an alleged rape hundreds of miles away a priority (more than 100 articles), it has devoted scant attention to an equally spectacular claim of sexual assault just outside of New York City. (Doubtless the fact that the suspects in the Hofstra case were non-white had nothing to do with the Times’ editorial judgment.)
In the one non-AP article the Times thus far has seen fit to run (on the dismissal of the charges), reporter Anahad O’Connor did not reveal the name of the false accuser, Danmell Ndonye, while he did mention the names and ages of the four people Ndonye had falsely accused.
I e-mailed O’Connor to ask about his rationale for this decision; he did not reply. But he did reply, through the Times automated e-mail system, to a DIW reader. His explanation: “The reason the article did not contain the accuser’s name is really quite simple. [Note in the e-mail, O’Connor still declines to use Ndonye’s name.] At the time the article was published, the authorities had yet to release it. It only came out at a later time. If you’re upset, you should direct your outrage at the district attorney’s office.
This explanation of what passes for Times journalism is an intriguing one. Perhaps the Times should change its motto from “All the News That’s Fit to Print” to “All the News Government Officials Have Seen Fit to Supply.” The latter motto certainly would have covered Duff Wilson’s role as a de facto stenographer for Mike Nifong during the lacrosse case.
In any event, O’Connor’s explanation is simply untrue. On the same day that the Times left its readers ignorant, the New York Post reported Ndonye’s name. Perhaps, on sexual assault cases, the Post understands that newspapers must do more than simply copy down what the authorities say.
Monday, September 21, 2009
From the Newsdesk
Two issues in the news over the past week have brought to mind lessons of the lacrosse case.
The first, of course, came at Hofstra, where a freshman student named Danmell Ndonye falsely accused five men of raping her. Four of the men were arrested, solely on the basis of Ndonye’s claims; the only one of the four who was a Hofstra student was immediately suspended by the university.
The falsely accused men were saved by technology: one of them had recorded the episode with his cell-phone camera, thereby proving that Ndonye was lying. One of the suspects admitted, “It didn't look good for us. I thought we would do time.” Imagine this case without the existence of a cell-phone video capability—or the lacrosse case without cell-phone camera (which established a timeline), cell-phone triangulation technology (which showed Collin Finnerty wasn’t at the house when the “crime” allegedly occurred), or bank ATM videos (which showed Reade Seligmann wasn’t at the house when the “crime” allegedly occurred).
Sadly, this case seems to offer a lesson for those intent on self-protection under Duke’s new, draconian sexual assault code. Since the code requires evidence of consent at each stage of the intercourse process (“Conduct will be considered ‘without consent’ if no clear consent, verbal or nonverbal, is given”), and since even if consent is given a student can nonetheless be found guilty (“Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion” [emphases added]), a written contract indicating consent at each stage of the process could be challenged (on the grounds that it was “unintentionally” “coercive”). Of course, videotaping acts of intercourse is—to put it mildly—in terrible taste. But as long as Duke’s code maintains its current wording, there would seem to be little alternative.
On another front: the New York Times covered the accuser’s recantation in an article penned by Anahad O’Connor. O’Connor’s article shielded Ndonye’s name, yet included the names and ages of the four men she falsely accused. Even assuming that a rationale exists for shielding the names of false accusers (which is quite a stretch in and of itself), what possible rationale could exist for not reporting the name of the false accuser while simultaneously reporting the names of the people she falsely accused? I e-mailed O’Connor for comment, but have not received a reply; if I do, I will post it.
Meanwhile, in the aftermath of the murder of a Yale graduate student, the New Republic reminded us of the fate of James Van de Velde, the Yale lecturer deemed a suspect (but never accused, and almost certainly innocent) in the 1998 murder of Suzanne Jovin.
Van de Velde, who had been a popular lecturer (whose courses dealt with more “traditional” topics out of favor with the then-dean of faculty, Richard Brodhead). Van de Velde had been questioned by police, but had not received any media attention—until the day before spring term 1999 classes, when he received a letter from Brodhead informing him that he would be removed from the classroom for the pending term.
Here is how James Bennet, writing in the New York Times Magazine, described the next day’s events:
The next day, students showed up for one of Van de Velde's classes to find a terse notice of its cancellation on the blackboard. In a statement, Yale noted that it presumed Van de Velde innocent, but that the New Haven Police had informed the University that he was "in a pool of suspects in the murder. "Under these circumstances," it continued, "it is inevitable that his classroom presence would be accompanied by continuing speculation about events outside the classroom that would constitute a major distraction for students and impair their educational experience."
The police confirmed Yale's statement, and for the media this was a bugler's call. Van de Velde's telephone and doorbell rang, he said, from 6:30 in the morning until 11 at night. He took to sleeping on a friend's floor.
Brodhead assured Bennet that he believed “the presumption of innocence is not a trivial thing.”
Thursday, September 17, 2009
A Note from Hofstra
The County DA stated, "Late this evening, during the continuation of the Nassau County Police Department's investigation of the allegation, and under questioning by my office's chief trial attorney and chief sex crimes prosecutor, the alleged victim of the sexual assault admitted that the encounter that took place early Sunday morning was consensual." But, as Ms. Murphy and others told us repeatedly in the Nifong case, such questioning would be out of the norm.
And continuing the policy demonstrated in its refusal to name Crystal Mangum, the New York Times is shielding the name of the Hofstra false accuser. What possible rationale could the politically correct Times have for such a policy?
Monday, September 14, 2009
A Final Word on Lisak
As I noted in my previous posts, Duke women’s center director Ada Gregory, in her damage-control letter to the Chronicle, cited the work of researcher David Lisak to bolster her . . . provocative . . . claim that elite universities face a particular threat from potential rapists because these institutions house more intelligent people than the general public.
As I also noted in my previous posts, not only did Lisak’s articles and papers that I read fail to prove this claim, but they provided no basis for it at all—Lisak did not mention rapists’ IQ or intelligence in the writings that I read.
Below are the synopses of Lisak’s other articles discussing his studies of rape and sexual assault. And, keep in mind, Lisak is hardly out-of-step ideologically with people like Gregory or the Group of 88, since he has endorsed a claim (that no actual crime figures support) that roughly 40 million American women have been victims of sexual assault.
“Motivational factors in nonincarcerated sexually aggressive men,” Journal of Personality & Social Psychology. 55(5):795-802.
Research on convicted rapists has demonstrated the importance of several key motivational factors in male sexual aggression. In particular, anger at women and the need to dominate or control them have been repeatedly implicated. Although anger and power have also been shown to be important in understanding college men who report sexually aggressive behavior, there has been little research on what underlies these motives. This research combined questions assessing these underlying motivational factors, as well as questions dealing with underlying sexual motivation and disinhibition, with a slightly modified version of the Sexual Experiences Survey (Koss & Oros, 1982). In Study 1, subjects were 184 male undergraduates. Factor analysis of the questions composing the four scales yielded four slightly modified scales. Scales measuring underlying anger, underlying power, and disinhibition significantly differentiated sexually aggressive from nonaggressive men but did not distinguish between men who were coercive, manipulative, or nonaggressive. In a replication on a smaller sample (n = 70), underlying anger, underlying power, and disinhibition again differentiated sexually aggressive from nonaggressive men.
“Motives and psychodynamics of self-reported, unincarcerated rapists,” American Journal of Orthopsychiatry. 60(2):268-80, 1990.
Fifteen men, classified by self-report as rapists and attempted rapists, but who had never been arrested or convicted, were compared to a matched control group on standardized instruments and content-coded interviews. Differences in hostility toward women, power motivations, and hypermasculinity were similar to findings from studies of convicted rapists. However, results suggest a greater role for the father in the etiology of rape-associated dynamics than has previously been reported.
“Educational, occupational, and relationship histories of men who were sexually and/or physically abused as children,” Journal of Traumatic Stress. 7(4):507-23, 1994.
Ninety men (mean age 26) at an urban Northeastern university were administered a self-report assessment of their early sexual and physical abuse experiences, and their educational, occupational, relationship, and substance abuse histories. Subjects were classified as sexually abused according to criteria used by Wyatt (1985) and Finkelhor (1979). Sixteen men (17.8%) experienced sexual abuse alone, 22 men (24.4%) physical abuse alone, 15 men (16.7%) both sexual and physical abuse, and 37 men (41.1%) were classified as nonabused. Of the 31 men who reported sexual abuse, 24 (77.4%) were contact, the rest noncontact. Sexually abused men reported significantly greater difficulties than nonabused men at all levels of education: grade school, high school and college. They also reported more negative job experiences and more negative experiences in relationships. Physically abused men showed a similar but less pervasive pattern of difficulties. Substance abuse was significantly more prevalent among both sexually and physically abused men than among nonabused subjects.
“Factors in the cycle of violence: gender rigidity and emotional constriction,” Journal of Traumatic Stress. 9(4):721-43, 1996.
A sample of 595 men were administered self-report assessments of childhood sexual and physical abuse, perpetration history, gender rigidity and emotional constriction. Including noncontact forms of sexual abuse, 11% of the men reported sexual abuse alone, 17% reported physical abuse alone, and 17% reported both sexual and physical abuse. Of the 257 men in the sample who reported some form of childhood abuse, 38% reported some form of perpetration themselves, either sexual or physical; of the 126 perpetrators, 70% reported having been abused in childhood. Thus, most perpetrators were abused, but most abused men did not perpetrate. Both sexually and physically abused men who perpetrated manifested significantly more gender rigidity and emotional constriction than abused nonperpetrators. Men who reported abuse but not perpetration demonstrated significantly less gender rigidity, less homophobia and less emotional constriction than nonabused men.
"Repeat rape and multiple offending among undetected rapists,” Violence & Victims. 17(1):73-84, 2002.
Pooling data from four samples in which 1,882 men were assessed for acts of interpersonal violence, we report on 120 men whose self-reported acts met legal definitions of rape or attempted rape, but who were never prosecuted by criminal justice authorities. A majority of these undetected rapists were repeat rapists, and a majority also committed other acts of interpersonal violence. The repeat rapists averaged 5.8 rapes each. The 120 rapists were responsible for 1,225 separate acts of interpersonal violence, including rape, battery, and child physical and sexual abuse. These findings mirror those from studies of incarcerated sex offenders (Abel, Becker, Mittelman, Cunningham-Rathner, Rouleau, & Murphy, 1987; Weinrott and Saylor, 1991), indicating high rates of both repeat rape and multiple types of offending. Implications for the investigation and prosecution of this so-called “hidden” rape are discussed.
It is possible, of course, that somewhere, at some point in his career, Lisak made an extraneous reference suggesting that entities filled by people with higher IQs are more likely to feature rapists. But there’s nothing in his available articles, or in his published synopses, to reflect this fact; and, in any case, this line of thought is clearly not a major element of Lisak’s research.
I have no opinion, one way or the other, on the quality of Lisak’s research. But why did Ada Gregory reference him and only him to substantiate her claim that Duke, because it has intelligent students, has a higher percentage of rapists than the general population, when his research offers no significant basis for making such a claim?
One final point on Lisak’s research. Much of campus anti-rape activism has focused on the dangers of “date rape,” and the dangers in particular of alcohol both inhibiting actions and leading one partner to believe that the other has given consent, when in fact no consent was given. Indeed, this sense of the danger of “date rape” helps explain many components of Duke’s current sexual assault policy—namely the requirement that consent must be given (and, presumably, documented) at each stage of the intercourse process; or the Orwellian claim that “real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” [emphases added]
Yet in his research, Lisak challenges this traditional view of “date rape.” He contends that the typical campus “undetected rapist” is not a “Nice Guy” who “drank too much,” and raped as a result of “unpremeditated” “miscommunication,” so that it “won’t happen again,” but instead someone who “plans & premeditates his attacks,” “uses multiple strategies to make [his] victim vulnerable,” and “uses alcohol deliberately.”
If true, of course, the problem of campus date rape isn’t primarily one of a male student mistakenly believing consent was given, and a female student denying consent. Instead, it’s a problem of a female being victimized by a serial sexual predator whose behavior wouldn’t be altered no matter how many freshmen orientation skits by the Women’s Center he happened to attend. Such a view of campus rape, of course, requires less ideological crusading by politically correct administrators and more interaction between the campus and local law enforcement. Lisak does recommend such interaction. But his research does nothing to help bolster Duke’s new policy.
Again, I have no opinion, one way or the other, on the quality of Lisak’s research. But, given his findings, it is troubling—to put it mildly—to see Ms. Gregory cite Lisak and only Lisak as part of her recommendation that Duke’s new, guilt-presuming sexual assault policy should form a model for other colleges and universities.
Thursday, September 10, 2009
On Gregory and Lisak
Duke Women’s Center director Ada Gregory came under justifiable criticism for her preposterous recent assertion to the Chronicle: “The higher IQ, the more manipulative they are, the more cunning they are . . . imagine the sex offenders we have here at Duke—cream of the crop.” Gregory subsequently claimed that she had been quoted out of context, though it’s hard to imagine what an appropriate context for her remark could have been.
In the event, as I noted last week, she essentially repeated her claim in her damage-control letter to the Chronicle, writing, “The difficulty in detecting and investigating sexual assault cases, particularly acquaintance rapes, which are often committed by undetected rapists who use manipulation and coercion, has been shown by the research of David Lisak, a University of Massachusetts at Boston clinical psychologist, and others. The investigations of these crimes can be further complicated by offenders who may also be categorized as antisocial or sociopathic, who are of above-average intelligence and can be highly manipulative and coercive, not only with victims but in the investigation process. Universities gather a lot of people with above average intelligence, so it stands to reason that campuses might see more of these kinds of individuals than the general population.” [emphasis added]
Gregory—like the “clarifying” faculty at Duke, who made a similar, if slightly vaguer, claim—doubtless has ideological reasons for wanting to believe that sexual assault is more common at elite university campuses than in the general public. Yet a preliminary glance through some of Lisak’s writings didn’t offer any illumination concerning the alleged link between communities of intelligent people and higher incidences of sexual assault. While there certainly are elements of campus life an elite universities—notably the extensive presence of alcohol—that would increase the risk of sexual assault (and which Lisak discusses), that, of course, was not the argument that Gregory made.
I e-mailed Gregory to ask her for a specific citation of Lisak’s work that bolstered her assertion that “universities gather a lot of people with above average intelligence, so it stands to reason that campuses might see more of these kinds of individuals than the general population.” She did not reply. So I e-mailed her again. Again, she did not reply.
So I read some more of Lisak’s publications. (I should note: I haven’t read everything that Lisak has published: CUNY doesn’t have a medical school, and some of his work comes in technical journals to which CUNY doesn’t subscribe.) Nonetheless, I haven’t been able to track down any of his writings that suggest a link between communities of smart people and higher incidents of sexual assault. At times—as in a 2005 talk—some of the themes for the “undetected rapist” that Lisak has identified would suggest that such criminals would be less common at places like Duke, simply because of practical matters. Two examples:
1.) Lisak has contended that predators are “often violent in multiple ways—(e.g., both sexual and domestic).” Yet at Duke, as at most elite university campuses, the overwhelming majority of students live in dorms or dorm-like arrangements. While it’s possible that openings exist for domestic violence, such episodes are surely far less frequent than in the general public at large, simply because most Duke students would not regularly find themselves in a position in which domestic violence occurs.
2.) Lisak’s research also suggests that nearly one in five of his undetected rapists have abused children. Obviously, college and university students do not have access to children on campus; at home, how many 18 to 22-year-old students at any elite university even are put in a position to sexually abuse children? While it’s possible that openings exist for child abuse, such episodes are surely far less frequent than in the general public at large, simply because most Duke students would not regularly find themselves in a position in which child abuse occurs.
Yet Lisak—the sole researcher that Gregory cited to bolster her claim of a linkage between bright people on campus and higher incidents of sexual assault—has contended that connections exist between child abuse, domestic violence, and sexual assault. Given that students at elite universities would seem to have been less likely to have engaged in either child abuse or domestic violence, wouldn’t it stand to reason that Lisak’s research suggests that sexual violence is less common on college campuses than in the general public?
Lisak, it’s worth noting, is hardly someone known for his temperate views on sexual assault: indeed, he is a true believer on the issue. He has contended that one in four women will be raped over the course of their lives: while not quite as extreme a view as some Group sympathizers (who have suggested that one in four women at Duke will be raped, giving the university a rate of sexual assault exceeds that of Detroit’s violent crime rate), the Lisak theory would maintain that just under 40 million women currently residing in the United States have been raped. Lisak also has endorsed the arch-feminist view that pornography (of any type) “normalizes” violence against women.
It doesn’t seem unrealistic to expect the director of a women’s center—however much she might be an ideologue regarding gender issues on campus—to accurately represent the relevant research in her field. Duke, it appears, has a different standard.
Monday, September 07, 2009
I’ll have a more substantive post up Wednesday; for today, however, a few loose ends:
[Update, 12.29pm Tuesday: An excellent post, using material gleaned from the recent civil case filings, from sceptical at Liestoppers regarding the pernicious role in the case played by former SANE nurse-in-training Tara Levicy. The post is well worth reading in its entirety.]
1.) For those interested, I have an article at Minding the Campus looking at the transformation of the American Association of University Professors (AAUP) from an organization committed to upholding academic freedom into a group whose leadership is obsessed with protecting the majority viewpoint in the contemporary academy.
2.) As has been widely noted, an appeals court ruled that Mike Pressler’s suit against Duke could go forward, though the ruling was on procedural grounds and doesn’t indicate much one way or the other regarding the substance of the case.
3.) The lacrosse case helped to illustrate the unintended, and largely negative, consequences on college campuses of denying people who can vote and serve in the military the right to consume alcohol. The problem, of course, isn’t just as Duke—as this depressing tale from Haverford reveals.
4.) A chilling article from the New Yorker, on how Texas almost certainly put to death an innocent man.
Tuesday, September 01, 2009
Three Duke University students were the victims of the highest-profile fraudulent rape claim in modern American history. That fact alone should make the University particularly sensitive to the dangers of false rape allegations, and the need for a firm commitment to due process in handling any allegation of sexual misconduct.
But Duke administrators seem to worry not about violating the due process of rights of their students but instead about running afoul of politically correct campus ideologues. So, starting this semester, the University has adopted a new “sexual misconduct” policy—a policy that even some Duke administrators fear will lead to an increase in false rape claims against Duke students.
Last Friday, the Chronicle reported the arrival of the new policy. Two factors prompted the change. The first was an increasingly common phenomenon on college and university campuses—a fear of litigation, as expressed by Duke General Counsel Pamela Bernard. Yet the policy Duke has developed seems like a lawsuit waiting to happen.
The second factor was a development that those in the reality-based community might consider to be a good thing: over a three-year period, reported cases of sexual misconduct on college campuses as a whole and at Duke specifically (slightly) declined.
But for those convinced that the rate of sexual assault at Duke is higher than the rate of all violent crimes in Detroit, these figures must mean something else—that a plethora of rapes are going unreported. The enemy in this battle, moreover, is particularly devious. As Ada Gregory, director of the Duke Women’s Center, told the Chronicle, “The higher IQ, the more manipulative they are, the more cunning they are . . . imagine the sex offenders we have here at Duke—cream of the crop.”
Of the many nutty statements generated by the lacrosse case or its aftermath at Duke, this assertion has to rank as among the nuttiest. Let’s leave aside the fact that in nearly every other context, campus “activists” blanch at suggesting a connection between IQ scores and any type of cognitive abilities. What actual evidence exists to corroborate Ms. Gregory’s extraordinary assertion?
I emailed Gregory to ask if she could cite studies showing that sex offenders at good universities are more “cunning” or “manipulative” than sex offenders without college educations or with lower IQs; or if the Duke Women’s Center had access to studies showing that elite universities needed to take special steps to deal with the presumably “cunning” and “manipulative” male student criminals in their midst.
Gregory responded by pointing me to a letter from her in yesterday’s Chronicle, in which she did some damage control. She asserted that her IQ comment was inaccurate “in the context of our conversation” and that her comments were “selectively edited and taken out of context to imply that all Duke students fit this pattern, which is emphatically not the case.”
Gregory’s letter, however, essentially repeated what she told Chronicle reporter Lindsey Rupp—albeit in far less inflammatory language: “The difficulty in detecting and investigating sexual assault cases, particularly acquaintance rapes, which are often committed by undetected rapists who use manipulation and coercion, has been shown by the research of David Lisak, a University of Massachusetts at Boston clinical psychologist, and others. The investigations of these crimes can be further complicated by offenders who may also be categorized as antisocial or sociopathic, who are of above-average intelligence and can be highly manipulative and coercive, not only with victims but in the investigation process. Universities gather a lot of people with above average intelligence, so it stands to reason that campuses might see more of these kinds of individuals than the general population.” [emphasis added]
Yet Lisak’s own research does not seem to substantiate Gregory’s point about a greater likelihood of finding undetected rapists among elite universities with intelligent students than in the general public. While Lisak does focus on the dangers of coercion or manipulation, here is the conclusion of a 2008 paper he delivered on “undetected rapists”: “The implications of the research on undetected rapists – research that has largely focused on men in college environments – point to the similarity of these offenders to incarcerated rapists. [emphasis added] They share the same motivational matrix of hostility, anger, dominance, hyper-masculinity, impulsiveness and antisocial attitudes. They have many of the same developmental antecedents. They tend to be serial offenders, and most of them commit a variety of different interpersonal offenses. They are accurately and appropriately labeled as predators.”
Sheila Broderick, a Women’s Center staffer, was even blunter on the need for a more forceful policy. (This was the same Sheila Broderick who praised the Group of 88-oriented Campus Culture Initiative report for stimulating “critical thinking and thoughtful analysis.”) Her own “thoughtful analysis”? Duke, a university with 13,457 students and five reported allegations of sexual misconduct in 2007, suffers from a “rape culture.”
Ms. Broderick’s evidence for this breathtaking claim? Assertions (which appear to be undocumented) that an unrevealed number of male Duke students had imitated a figure called “Party Boy Chad,” one of the characters in a required presentation for freshmen put together by the Women’s Center.
I twice e-mailed Broderick to ask if she had evidence for her claim that did not involve a Women’s Center fictional character; and if she could provide a precise definition of what constituted a “rape culture” at Duke.
Broderick did not reply.
So what is the new Duke policy that has so excited Gregory and Broderick?
Starting this semester, Gregory and Broderick of the Women’s Center, along with the Office of Student Conduct (Duke’s judicial arm), will be notified of all allegations of student sexual misconduct made to any university official (including RA’s in the dorms). Both will then involve themselves intimately in the process.
What, precisely, does Duke consider sexual misconduct? In addition to sexual assault, Duke defines sexual misconduct as “as any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent,” including “sexual exploitation, defined as taking nonconsensual, unjust sexual advantage of another for one’s benefit or the benefit of another party . . . The university’s definition of sexual misconduct mandates that each participant obtains and gives consent in each instance of sexual activity. Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words . . . consent to one form of sexual activity does not imply consent to other forms of sexual activity . . . Conduct will be considered ‘without consent’ if no clear consent, verbal or nonverbal, is given.”
Duke’s policy does not explain what constitutes “nonverbal” consent, nor does it guide students who participate in sexual activity how they need to record their consent (verbal or nonverbal) to defend themselves against future false charges.
As reflected in Gregory’s comments, the policy is concerned with the possibility of sexual misconduct through coercion. A “fundamental principle” of the sexual misconduct policy is the following: “Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” [emphases added] How, precisely, should a Duke student be held liable for “perceived” power differentials creating an “unintentional” atmosphere of coercion? Duke’s policy does not explain.
Perhaps most alarmingly, the new policy dramatically expands the power of the Office of Student Conduct, headed by the due process-unfriendly Stephen Bryan. The office now has the power to investigate each and every sexual misconduct allegation, even if the accuser does not want to proceed. Bryan additionally told the Chronicle that “the OSC could hire an outside person to assist in conducting investigations into sexual misconduct.” These proposals, it’s worth remembering, come from the same university that repeatedly proclaimed it couldn’t investigate Crystal Mangum’s allegation of sexual misconduct, lest by so doing it obstruct justice.
“Accused students,” the disciplinary guidelines reassure, “can expect a presumption of innocence throughout the disciplinary process.” But the procedure tilts so heavily in favor of the accuser that it undermines even the pretense of a presumption of innocence.
The accused student does not have a right to an attorney. Instead, he can select a “member of the university community” to serve as an advisor. That advisor can attend the disciplinary hearing, but cannot ask any questions, nor even speak (except to the accused student).
The accused student does not have a right to confront his accuser. Instead, he has only the right to ask questions “directed through the hearing panel,” with the panel retaining sole discretion as to whether or not to present the witness with the question. And, of course, such a cumbersome process vitiates any right of effective cross-examination.
The accused student does not have a right to transparent scheduling. Instead, Duke guarantees only “a 120-hour (five day) notice in advance of a hearing.”
The accuser in a sexual misconduct case, moreover, receives three rights denied to the accused student. Each of these special rights tilts the process in the accuser’s favor.
First, Duke guidelines state that the sexual misconduct accuser “will be treated with respect and sensitivity [emphasis added] before, during, and after the disciplinary process.” The accused student, on the other hand, only must “be treated with respect throughout the process.”
How is a promise to treat the accuser but not the accused with “sensitivity” consistent with the “presumption of innocence” for the accused? Duke doesn’t say.
Second, Duke guidelines state that sexual misconduct “complainants will be given the opportunity to make opening and closing statements to a hearing panel.” The accused student, on the other hand, is promised no such opportunity.
How is giving a right to make opening and closing statements only to the accuser consistent with the “presumption of innocence” for the accused? Duke doesn’t say.
Third, Duke guidelines state that sexual misconduct “complainants have the right to receive—within the parameters of FERPA—a copy of the written information given to a hearing panel.” The accused student, on the other hand, is promised no such right. This is particularly ominous given Duke’s new ability to hire an outside investigator to look into sexual misconduct allegations. Yet while the accused student has no right to receive any of the “written information” that the investigator produces (what in a criminal case would essentially be the discovery file), his accuser can get all of the documents, except for those covered by FERPA.
How is giving a right to receive written material only to the accuser consistent with the “presumption of innocence” for the accused? Duke doesn’t say.
Responding to a biting series of columns by former Duke Student Government president Elliot Wolf, Dean Bryan suggested that as the purpose of the Duke judicial process is education of the offenders, not their punishment, the process didn’t need to provide the due process protections featured in a criminal investigation. A glance through The Shadow University, which traces the due process-unfriendly character of university judicial processes often lead to unfair or incorrect results, shows the absurdity of that statement.
But even accepting Bryan’s rationalization, the new Duke “sexual misconduct” policy would not be covered by the argument Bryan made to Wolf. Almost all of the misconduct described in the policy is criminal. (The exception would be the Orwellian assertion about “unintentional” coercion through “perceived” power differentials.) And the policy guidelines explicitly note that “complainants also have the right to report criminal sexual conduct to local law enforcement, which does not preclude university disciplinary action.” [emphasis added] Indeed, one passage in the new policy suggests that Duke could function as a conduit between the accuser and law enforcement: “OSC may also refer the matter to another university office and/or notify the appropriate law enforcement agency.” [emphasis added]
So from here on out, Duke has assigned itself the power to conduct a parallel investigation to a criminal investigation, or even to refer matters (with or without the accuser’s consent) to “the appropriate law enforcement agency” (the Durham Police Department and Durham County “Minister of Justice” Tracey Cline) for investigation and prosecution. Duke has also assigned itself the right to hire its own investigator—the role that Linwood Wilson played for Mike Nifong—to look into the allegations.
Dismissing the need for any guidelines, Bryan informed the Chronicle that the investigations will be handled on an “ad hoc” basis. Can the investigator use evidence from anonymous sources? Can the investigator speak to the accused student, and, if so, does the investigator have an obligation to remind the accused student of his rights? How will Duke ensure that the investigator does not use hearsay evidence? There are, incredibly, no written guidelines for how the investigator must behave—and yet Duke maintains that the system operates under a “presumption of innocence” for the accused.
And what happens with the file that the investigator creates if local law enforcement decides to pursue a criminal investigation? It’s not too hard to imagine Cline—who, after all, was going to be second chair if a trial occurred in the lacrosse case—imitating her mentor and going after Duke students if a future election bid runs into trouble.
If Cline subpoenas the Duke investigatory file, how will the University respond? If it invokes FERPA and refuses to turn over the material, imagine the opening for Candidate Cline to demagogue—perhaps, like her mentor, in an appearance at NCCU, something along these lines: “Duke is withholding material that would allow me to convict what even a Duke administrator has called the University’s ‘cunning’ and ‘manipulative’ sexual offenders. We shouldn’t let those rich out-of-staters—what even a Duke administrator has termed the ‘cream of the crop’ of the nation’s sexual offenders—get away with it.”
And if Duke turns over the material? A University process with no meaningful due process protections could be used to help convict a potentially innocent Duke student.
In her interview with the Chronicle, Gregory conceded that even Duke administrators—who, as we all have come to know, are not terribly sensitive to the possibilities of fraudulent rape claims—expressed fears that the new policy (coupled, of course, with a judicial process whose procedures overwhelmingly favor the accuser) would result in an increased filing of false claims of sexual misconduct.
Gregory had no such concerns: “We’re creating an environment that says, ‘This is not tolerated in our community,’ and when you create that environment, victims are more likely to come forward and seek help.” How creating an environment that says sexual assault isn’t tolerated (as if any elite university currently has a campus environment that “tolerates” sexual assault) guards against the filing of false sexual assault claims Gregory didn’t say.
Instead, Gregory sees the new Duke policy as an example for other universities to follow. That’s even though the one researcher she cited, David Lisak, has argued against the very type of procedure Duke has now set up. Last year, he wrote, “The less benign reality of sexual violence in the university setting also carries implications for university judicial processes. A judicial board would hardly seem the appropriate venue to deal with a sexual predator. Further, cases of non-stranger rape are extremely difficult to properly investigate and prosecute – they are in fact far more complex than the majority of stranger rapes. A proper investigation requires skilled and specially-trained investigators working closely with specially-trained prosecutors.”
In short, according to Lisak, Duke’s new “ad hoc” investigatory policy is exactly what universities should not be doing.
You might think that a university that witnessed the highest-profile rape hoax in modern American history would go out of its way to protect its students from future such hoaxes. At the very least, you might think that such a university wouldn’t design a procedure—motivated by many of the same politically correct impulses that fueled the rush to judgment in 2006—that even its own administrators worried could produce more false sexual misconduct claims.
Duke, instead, has gone in the opposite direction, adopting a policy that Women’s Center Director Gregory concedes is far more extreme than that at most universities in the country. Simply extraordinary.