Friday, January 25, 2013

Professor Hattery Analyzes the Lacrosse Case

Angela Hattery is a professor at George Mason University, where she serves as the associate director of the school’s Center for Women and Gender Studies. (This semester, she’s teaching a course in theoretical perspectives in women and gender studies.) She came to George Mason from Wake Forest, a North Carolina university around 75 miles from Duke, where she also taught gender studies classes. She said that she came to GMU because she “liked the diversity and the way the program integrates not just gender issues but race and ethnicity as well.” Her research interests? “The intersections of race, class, gender, sexuality.” 

Of course.

Professor Hattery recently decided to offer her insights on the Duke lacrosse case. She penned a post entitled, “Rape in High School and College Athletics: Why do we settle for the explanation that boys will simply be boys?”

The post touches on five cases: the Glen Ridge (NJ) rape by members of the high school football team; the Steubenville (OH) alleged rape by high school football players, in which two players have been charged and await trial in juvenile court; the Kobe Bryant rape allegations, in which charges against Bryant were dropped but a civil claim was settled; an allegation that two former Wake Forest basketball players (who were never charged) raped a fellow student; and the Duke lacrosse case.

The Kobe Bryant case occurred when Bryant was a member of the Los Angeles Lakers, a professional basketball team; Hattery does not explain its relevance to a post about “rape in high school and college athletics.”

Just how similar to the Duke case are the other three cases? The Wake Forest case (to which Hattery provided a link to an interview with the accuser) involved an allegation of acquaintance rape, in which the accuser leveled her allegations two months after the alleged incident; the basketball players claimed that the sexual intercourse was consensual but never denied all sexual contact. In the Duke case, of course, the lacrosse players consistently claimed that never was any intercourse of any type, and DNA tests corroborated their assertions.

In the Glen Ridge case, four men were convicted of sexual assault. In the Duke case, of course, the attorney general issued a report indicating that the accused students were wholly innocent.

In the Steubenville case, there appears to be very strong evidence that a crime occurred (based in part through on social-media accounts by the alleged perpetrators and their friends), and a special prosecutor was appointed because of concerns that the local law enforcement was too lenient and sympathetic towards the alleged perpetrators. In the Duke case, of course, there was no evidence a crime occurred, and the original law enforcement reaction was (unethically) too harsh and unsympathetic towards the alleged perpetrators.

Hattery attempts to slide past these pretty significant distinctions between the lacrosse case and her other examples by offering what she terms a “caveat”: that “some of the events and cases I’m going to highlight did not ultimately end up generating criminal charges and in some cases trials failed to garner a conviction. It’s not the legal outcomes that are my concern.” Yet the title of her post is “Rape in High School and College Athletics,” not “Allegations of Rape against High School or College Athletes.” Hattery does not reveal how she concluded that a “rape” had occurred in cases in which trials or legal investigations “failed to garner a conviction”—or much less, as in the Duke case, yielded a finding of actual innocence.

Professor Hattery offers two insights about the lacrosse case. First, after taking note of the outrage following “a youtube video of a young man from Steubenville talking about the [alleged] victim as being “dead as a doornail,” she muses, “I wonder what we would have seen if a cell phone user had videotaped the strippers the night of March 13, 2006 at the Duke lacrosse house. Would we have had a similar response?”

The (unstated) implication: contemporaneous cell-phone activity in the lacrosse case would have revealed untoward activity.

Hattery didn’t provide a link to her question about the Duke case—perhaps she was unaware that the contemporaneous material from “cell phone user[s]” regarding the strippers didn’t exactly support her insinuation. And while at Steubenville the cell-phone evidence to which Hattery did provide a link bolstered the accuser’s claims, at Duke, the cell-phone photos to which Hattery did not provide a link wholly undermined the accuser’s (and Mike Nifong’s) claims.

Professor Hattery, it seems, has quite an unusual linkage policy.

Hattery’s second observation about the lacrosse case asked readers to “recall that in the case of the Duke lacrosse team one of the fathers indicated that he didn’t see what the issue was, he and his Wall Street colleagues routinely unwind together at the end of the day at strip clubs.” Once again, the suddenly link-shy Hattery failed to provide any link to these alleged remarks; her readers, evidently, were just supposed to “recall” an alleged interview from more than six years ago.

The fathers of two of the falsely accused players (Seligmann and Finnerty) have over the course of their careers worked on Wall Street; neither of them ever “indicated” anything like the Hattery paraphrase. I e-mailed Hattery to ask her for a link to her item about “one of the fathers,” and also to ask why her post hadn’t provided a link to the AG’s report that used contemporaneous cell-phone photos to exonerate, rather than inculpate, the lacrosse players.

Professor Hattery did not reply.

[Update: After the appearance of the post, Professor Hattery graciously, if somewhat confusingly, replied. She did not indicate why her post left people to "wonder" about what might have been contained in social media evidence that was, in fact, released to the media (and released very early in the case). She added that she was concerned not with the legalities of the cases that she examined, but instead "focusing on the cultural [question] that contributes to behavior that is less than ethical." Not to recapitulate the above, but the title of her post--"rape" and not "alleged rape"--passed a legal judgment, and it's hard to see the connection between four cases in which (at minimum) sexual contact occurred and a fifth case in which no sexual contact of any kind occurred.

Hattery also cited this Washington Post article as the only source for her inflammatory claim that "one of the fathers indicated that he didn't see what the issue was, he and his Wall Street colleagues routinely unwind together at the end of the day at strip clubs."

Her blog post interpreted the article as saying two things: (1) one of the fathers quoted in the article worked on Wall Street, where he and his "colleagues [would] routinely unwind together at the end of the day at strip clubs"; and (2) the father "didn't see what the issue was," as part of a "boys will be boys" defense of his son. "This," Hattery mockingly asked, "is supposed to make me feel better?"

Both of Hattery's interpretations of the Post article are wildly off-the-mark; the first is simply wrong. In the article (which interviewed several parents), a parent named John Walsh said about the hiring of strippers, "You see it in New York; it's the preferred type of entertainment for Wall Street." But Walsh is identified in the very same article that Hattery cited as her only source not as someone who works on Wall Street or even in the financial industry--but as a "health administrator who lives in Bethesda," Maryland.

Most disturbingly, the article contains no suggestion that Walsh ever has visited a strip club, much less that he joined his colleagues from Wall Street, Bethesda, or anyplace else in "routinely unwind[ing] together at the end of the day at strip clubs."

Regarding Hattery's claim that the article featured the parents falling back on a "boys will be boys" defense, Walsh told the Post that he was surprised how prevalent the hiring of strippers on college campuses was, and that he didn't "advocate" doing so. A second parent, Tracy Tkac, gave a comment that's about as far away from Hattery's "boys will be boys" defense as you could get: according to Tkac, "Hiring a stripper is just as inappropriate as being a stripper."

As part of a post concerned with exposing "less than ethical" behavior, then, Professor Hattery falsely stated that a lacrosse parent "routinely" visited strip clubs with his work colleagues (in a city where he didn't even work); and then used that false claim to draw a negative inference in how parents of unindicted players sought to defend their sons' reputations.]

Saturday, January 19, 2013

UNC & A Credulous Press

Last year, in a post over at Minding the Campus, I examined how the University of North Carolina responded to the Obama administration’s “Dear Colleague” letter, which required all colleges receiving federal assistance to change their sexual assault procedures. The new procedures enhance the likelihood of conviction, by using a “preponderance of evidence” [50.1%] standard and by introducing double jeopardy through an accuser’s right to appeal not-guilty findings.

Even before these mandated changes, the system that previously existed at UNC already made a mockery of due process rights for the accused. Unless the accuser simultaneously filed a criminal complaint, the accused student couldn’t be represented by counsel in the hearing. (“Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings.”) When criminal charges were filed, a lawyer could be present but not speak to the hearing panel or cross-examine witnesses. And the hearing panel had the right to obstruct an effective defense by restricting exculpatory evidence only to material that “does not otherwise infringe the rights of other students.”

In response to the “Dear Colleague” letter, UNC further weakened the due process protections for students accused of sexual assault—and only for these students. It set up a two-tier student judicial system. Students accused of all other offenses would continue to be tried by the school’s Student Honor Court and according to a standard of beyond a reasonable doubt. But students accused of sexual assault (a far more serious allegation than most student judicial questions) would be adjudicated under a far lower threshold (preponderance of evidence). And the claims would no longer be heard by the Student Honor Court but by specially trained evaluators.

Celebrating the new system in a fawning interview with InsideHigher Ed was an assistant dean of students, Melinda Manning. Manning said the existing system (that is, the system that denied students accused of sexual assault the right to be represented by counsel in their hearing) was too accuser-friendly, since the Student Honor Court improperly required “victims [not ‘alleged victims’ or ‘accusers’] to be judged by a roomful of peers.”

Ponder that statement for a minute.

To reiterate: last April, UNC took a system that already denied basic due process to accused students—and made it more likely that accused students would be convicted, by lowering the threshold for a guilty finding in sexual assault cases and only sexual assault cases, and by ensuring that students accused of sexual assault wouldn’t be evaluated by the campus equivalent of a jury of their peers.

Manning is back in the news—as a supporter of a federal civil rights claim filed by current and former UNC students who assert they were victims of sexual assault but that the system described above so failed to protect their rights that it created a hostile campus environment under Title IX. “My original plan was just to walk away and forget about everything that’s happened,” Manning (the opponent, again, of allowing students accused of sexual assault to be judged by a jury of their peers) e-mailed the Daily Tar Heel. “But I love Carolina too much to do that. I can’t assume that someone else will fix these problems without my input.” 


The complaint itself isn’t public, but was seen by the Daily Tar Heel. Writes reporter Caitlin McCabe (wholly uncritically), “The complaint is rich with stories of hostility, including the administration’s failure to train Honor Court members who facilitated sexual assault hearings, to treat both the accused and accusing student fairly and to keep survivors informed.” McCabe’s article also speaks of one of the complainants working on behalf of herself and “65 sexual assault survivors” at UNC. The word “alleged” does not appear in McCabe’s article: as presented by the DTH, each of these 66 accusers was, in fact, victim of a violent crime. The article contains no mention that any of these complaints actually resulted in a conviction (or even a trial).

McCabe did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.

Interestingly, Star-Ledger columnist Steve Politi—who did excellent work on the lacrosse case, and who once seemed to understand the danger of college students facing sexual assault claims amidst a lack of due process (though at least Reade Seligmann, about whom Politi wrote, had the right to a lawyer, unlike accused students at UNC)—tweeted commendably about the DTH’s uncritical coverage of the complaint.

In the N&O, reporter Gloria Lloyd likewise declines to use the phrases “alleged victims” or “accusers,” and instead reports as fact that 66 rapes occurred. “The students say,” she writes, “they are sexual-assault victims and that the university mishandled their cases by not believing or supporting them or by accusing them of being at fault in their attacks.”

Lloyd does not explain how “not believing” a claim, in and of itself, could constitute mishandling of a case. Even the pro-accuser OCR has never maintained that a finding of not guilty (that is, “not believing” the accuser) indicates a problem with the process.

Lloyd did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.
University Of North Carolina Routinely Violates Sexual Assault Survivor Rights, Students Claim.” The article seems to speak as if there’s no question that each rape occurred, noting that the complaint was filed by two “survivors” and “64 other victims.” Oddly, at other points Kingkade describes accused students as “alleged rapists” who committed “alleged abuse.” How a “victim” is produced by a rape that remains only “alleged” Kingkade does not reveal.

Unlike Lloyd and McCabe, Kingkade does reference—obliquely—the UNC procedures (though he doesn’t discuss the rules against an accused student having representation in the hearing, or the low threshold for a guilty finding), merely noting that the Honor Court no longer is allowed to hear cases. He then quotes from a UNC student referencing the change (designed to make convictions more likely) as perpetuating a “culture of silence.”

Kingkade at least reached out to someone beyond the ranks of accusers and their supporters. He interviewed Student Press Law Center attorney Adam Goldstein, who astutely noted that “law enforcement and the adjudication of rape cases in general does not lend itself to amateurs.”

The most striking aspect of both the DTH and the N&O articles came in their decision not to describe, in any way, the procedures that supposedly treated these 66 rape victims unfairly. How could any DTH or N&O reader know, for instance, that a process that’s supposedly indifferent to the suffering to rape victims in actuality denies accused students the right to counsel, or allows conviction on a 50.1% threshold? The HuffPost article does, briefly, mention UNC procedures, but only to bizarrely imply that the 2012 changes perpetuate a culture of silence.

Including the necessary procedural context, of course, would have dramatically altered the uncritical acceptance about the facts of the complaint that the reporters brought to their articles. Given their uncritical acceptance, however, each buried the lede: the major issue would seem to be the discovery that the seemingly placid UNC campus is actually a center of violent crime. According to the DTH, the N&O, and Huffington Post, there were at least 66 sexual assaults at the University of North Carolina over the past six years—an average of 11 sexual assaults per year. (The articles reference 2007 as a starting date for the complaint, although they’re not entirely clear on this point.) And, again, each article uses wording that indicates these violent crimes definitely occurred—“survivors” and “victims,” not “alleged victims” and “accusers.”

Accordingto FBI crime statistics during this period, Chapel Hill is listed as having had 9 rapes in 2008, 14 rapes in 2009, 11 rapes in 2010, and 7 rapes in 2011—for an average of 10.3 per year. (Figures for 2007 and 2012 aren’t available.) In short, comparing FBI stats to the figures presented uncritically by the DTH, the N&O, and HuffPost, every sexual assault in Chapel Hill over the past several years has occurred to a UNC student. That’s an extraordinary development, a suggestion that the campus is a virtual hotbed of violent crime in an otherwise utterly placid city.

Or, perhaps, could it be that the statistics presented uncritically by the DTH, the N&O, and HuffPost deserved a bit of journalistic skepticism—and that a system that denies basic due process to accused students can’t uncritically be described as mistreating accusers?

Hat tip: B.

Monday, January 14, 2013


A few updates in a quiet period for case-related developments:

(1) Attorneys for the three falsely accused players have indicated they plan to appeal to the Supreme Court the 4th Circuit’s ruling dismissing—before discovery even had begun—their federal civil rights claims against Durham and Durham employees. The Supreme Court accepts less than 1 percent of cases submitted to it, most frequently when a federal law is struck down (not relevant in this instance) or when a difference occurs between circuits. That route would seem the most promising: will the attorneys be able to argue that the 4th Circuit’s ruling—that there’s no conceivable federal civil rights claims when police, acting in concert with a prosecutor who was improperly placed in charge of the police investigation, attempt to frame innocent people for a crime that never even occurred, as long as the police are candid with the prosecutor (but not the grand jury) that there’s no evidence for the crime—conflicts with standards in other circuits?

The notice, by the way, came in response to the latest offering from Linwood Wilson, acting as usual as his own counsel, whose legal filings throughout the case have regularly provided an unintentional dose of comic relief. In what might be the single most bizarre legal document of the entire case, Wilson—acting, again, as his own attorney—provides what he terms legal definitions “for us common men” (the “definition” comes from the dictionary), cites unnamed and uncited “legal experts” who say the Supreme Court will not hear the appeal, speaks of himself in both the first person (“I”) and the third person (“Defendant Wilson”), and wildly threatens to sue the falsely accused players for defaming his character.

The oddest of the many odd lines in the filing: “Wonder what the going rate on Attorney’s [sic] fees are to go to ‘The Supreme Court’”? Bolding, lack of a subject for the sentence, and odd quotation marks in the original.

(2) The McFadyen plaintiffs (represented by Bob Ekstrand), meanwhile, petitioned the 4th Circuit for an en banc review, requesting that the Circuit overrule part of the decision of the three-judge panel. You can read a comprehensive analysis of the petition at the Liestoppers forum.

The petition—irrespective of its legal merits—is a longshot: assuming that each of the three-judge panel votes against Ekstrand, eight of the circuit’s remaining judges would then need to vote for a re-hearing. It seems more likely that the circuit’s conservatives will be swayed by Judge Wilkinson’s reasoning (toss out the case lest it provide a precedent for other victims of police misconduct to sue local governments) while the left fringe on the court can point to Judge Gregory’s “reasoning” (toss out the case lest it lead people to believe that Mangum’s politically correct claims were, in fact, utterly fraudulent).

[Update, Wed., 6.05pm: As predicted, the petition for an en banc hearing was denied.]

(3) The latest from the annals of non-accountability: the Mellon Foundation has appointed none other than Richard Brodhead as a trustee, with his position to take effect in March 2013.

The past president of the Mellon Foundation is none other than William Bowen—co-author of the whitewash Bowen/Chambers report.

(4) In recent weeks, in large part due to hacks from activist groups, media attention has centered on Steubenville, Ohio, which was rocked by allegations of what appeared to be a desultory investigation into allegations that players from the high school football team raped a girl. Two of the players were charged and await charges in juvenile court, but none of the other partygoers—who appear to have witnessed the incident and done nothing—have been charged.

To date, the most chilling release has been a video of a Steubenville graduate who went onto Ohio State named Michael Nodianos. Deadspin describes the video in this way: “The video is over 12 minutes long. It's not very easy to watch. Nodianos tells jokes about how ‘dead’ the alleged victim is and openly and jokingly acknowledges that she has been raped.

Among his many chilling comments was the following: “They [the Steubenville football players] raped her more than the Duke lacrosse team.”

The comment is horrifying in many ways. From the standpoint of the lacrosse case, it’s a reminder of how the case is perceived in popular culture—and of how the disparity between the massive media coverage of Mangum’s allegations and the far more limited coverage of the exoneration shaped at least some elements of the popular memory.

(5) I’ve written some on the Penn State case—which is, effectively, the anti-Duke. Unlike Duke, which has allowed the Bowen/Chambers Committee report to stand as the sole official investigation of how the administration (and much of the faculty) so botched the university’s response to the case, Penn State held responsible powerful university leaders (ex-president Graham Spanier, ex-football coach Joe Paterno), conducted a comprehensive investigation (headed by ex-FBI director Louis Freeh) of what went wrong, and enacted reforms to ensure that the failure isn’t repeated.

There has been, however, one darker difference between the two universities’ responses.  At Duk,e the true believers—the Group of 88 and allies—largely went silent once the administration adopted its “let’s-move-on” mantra. At Penn State, on the other hand, significant elements of the alumni and even faculty communities appear intent on relitigating events to render blameless at the least Paterno and at the most the whole group of disgraced administrators.

An example comes in this blog post, which compares the Duke students—falsely accused of a crime that never occurred, victims of massive prosecutorial misconduct—to Penn State senior administrators and ex-coaches who decided, for their own reasons, not to report a graduate assistant’s report that he had witnessed a boy being sexually assaulted in the football showers.

Simply an astonishing framing of events.