Monday, October 28, 2013

Accountability and Pre-Exising Biases

The other day, I came across an item in my Twitter feed from Salon’s Soraya Chemaly. The article, entitled 5 Ways Sexual Assault Is Really About Entitlement, contained this remarkable assertion about due process and false accusations: “the likelihood of being falsely accused of rape are [sic] no different from that of being falsely accused of any other crime. And women are far more likely to be raped than men are to be falsely accused. The insistence on treating the two as equally prevalent issues is ….an entitlement.”

This sort of extreme victims’ rights rhetoric was associated in the early 1990s with the far right, and is almost never (and for very good reason) seen coming from mainstream liberals, much less from an activist publication such as Salon. Imagine the (appropriate) outrage if a left-of-center publication published something along the lines of the following: “The likelihood of being falsely accused of robbery in urban areas is no different from that of being falsely accused of any other crime. And accusers are far more likely to be robbed than urban African-Americans are to be falsely accused.”

The piece focused, however, on the college environment. Regarding male Division I athletes, Chemaly wrote, with an embedded link, that “while male student athletes make up 3.3% of the U.S. college population, they are responsible for 19% percent of sexual assaults and 37% of domestic violence cases on college campuses.” Note that the sentence was delivered in the present tense (“make,” “are”).

It turns out, however, that Chemaly misrepresented her source, a 2012 Dartmouth Law Journal article by Edward Sansone. Here’s how Sansone described the study [my emphases added]: “A study of sexual assaults at thirty major Division I universities over a three-year period in the early 1990’s came to the conclusion that male student-athletes, compared to the rest of the male population, are responsible for a significantly higher percentage of sexual assaults reported to judicial affairs on the campuses of Division I universities. The survey found that while male student-athletes make up only 3.3 percent of the college population at the surveyed institutions, they were responsible for 19 percent of sexual assault cases and 37 percent of domestic violence cases.”

Chemaly basically copied Sansone’s second sentence (without including quotation marks), but adjusted it in two ways. She changed Sansone’s “were” to “are,” and changed Sansone’s “college population at the surveyed institutions” to “U.S. college population.” Copying word-for-word might have been dismissed as incidental plagiarism, perhaps forgivable because Chemaly included a link. But Chemaly—a self-described “activist and writer of feministy things”—didn’t simply copy Sansone’s words. Instead, she copied most of them but then altered a few of them to make it appear that the survey was current (instead of 20 years old) and comprehensive (instead of only 30 institutions). That sort of behavior is unethical.

What of the survey that Sansone cited? Given that his piece (which calls for using Title IX to crack down on what he sees as disproportionate sexual misconduct by male student-athletes) appeared in a law journal article rather than in Salon, it might be assumed that higher editorial standards would apply. Yet Sansone’s sole source for his claim is an organization called the National Coalition Against Violent Athletes. The group’s website contains the following line, which formed the basis of Sansone’s claim: “A 3 year study shows that while male student-athletes comprise 3.3% of the population, they represent 19% of sexual assault perpetrators and 35% of domestic violence perpetrators.” Yet the website doesn’t contain the actual (20-year-old) study itself. And the group’s assertion that the highly-regarded Northeastern University Center for the Study of Sport and Society “refused to publish these statistics” doesn’t exactly provide reassurance about the quality of the data.

To review: a one-sentence summary of a study on an activist group’s website was then picked up in a law journal article (whose author, at least according to his footnotes, does not appear to have examined the study itself). The law journal article’s item was then picked up by Salon, which altered its meaning to make it seem as if the study was new rather than 20 years old.

Sansone’s article, it turns out, had another item directly connecting to the topic of this blog. Here’s his lede sentence—opening the article’s second paragraph after a first-paragraph vignette. “The dark secret that many male college athletes carry is that they are one of the main perpetrators of domestic violence and sexual assault on college campuses.”

For this extraordinary claim, Sansone (in an article published out of an Ivy League college) cited a grand total of one source, a 2006 article by Jake Tapper and AudreyTaylor. (While Tapper is now a reliable barometer of conventional wisdom in Washington, he worked at Salon before moving on to ABC.) Here’s how Tapper and Taylor opened their piece, entitled “Is Jock Culture a Training Ground for Crime?”:
A year before Duke University’s lacrosse team became the center of scandal, administrators and the school's athletic director were warned that the players had demonstrated "boorish" behavior.
According to news reports, 15 of the team’s 47 players have court records for drunken and disorderly behavior. [The ABC duo was writing before “news reports” revealed the Duke-Durham agreement to maximize charges against all Duke students who engaged in underage drinking or the type of disorderly behavior that likely wouldn’t result in an arrest of an NCCU student.] Two were arrested today on charges of raping and kidnapping a 27-year-old woman at an off-campus party.
The alleged incident may be part of a larger problem, experts said, of athletes whose attitude includes a sense of entitlement that manifests itself in crude and even lawless behavior.
Tapper and Taylor then went on to cite . . . the very same study used by Sansone and misrepresented by Chemaly.

But, of course, the “alleged incident” that Tapper and Taylor speculated “may be part of a larger problem” never occurred. Yet rather than Crystal Mangum’s false charges and Mike Nifong’s unethical behavior discrediting Tapper and Taylor’s article, Sansone had no problem citing it—and citing it for his law journal article’s key claim—as if Tapper and Taylor’s piece provided some sort of special insight. And the journal’s editors had no problem in clearing the article and the citation.

How can a crime that never happened be used to demonstrate a “larger problem” whose relevance to the case would make sense only if the crime had actually occurred? For true believers, it seems, there’s no reason to come to grips with how the initial rush to judgment in the lacrosse case requires some reconsideration of the broader assumptions about due process in campus sexual assault cases embedded in both the Sansone and the Chemaly items.

Friday, October 11, 2013

Reflections on the Supreme Court Move

As I noted Monday, the Supreme Court has declined to hear the falsely accused players’ appeal of the 4th circuit’s dismissal of most of their case. On the one hand, the decision wasn’t surprising: (1) the Court doesn’t take many appeals; and (2) the politics of this appeal were particularly difficult, since judicial liberals tend to be more favorably inclined to civil rights claims—but as Judge Gregory demonstrated at the 4thCircuit, it appears that at least some judicial liberals are extremely hostile to this particular group’s civil rights claims.

On the other hand, however, the decision was extremely disappointing and at least a little bit surprising, in two respects. First, it’s not as if the Court is overflowing with critical cases this term—its first week of the session featured two cases (Madigan and Burt) that never should have reached the Court in the first place.

Second, it’s worth reiterating the breathtaking precedent that the Court allowed to stand. From here on out in the 4th Circuit, there’s no federal cause of action against a town or city when the municipality’s police department: (a) turns over a police investigation to a local prosecutor; and (b) stands aside as that prosecutor and police officers manufacture evidence with which to indict innocent people for a crime that never occurred—provided that (a) the police are perfectly candid with their co-conspirator (the prosecutor) that there’s no evidence on which to base the indictment; and (b) a grand jury returns indictments, even if, as occurred in the lacrosse case, the indictment resulted from misleading or outright false testimony from one of the police officers.

The dismissal means that a host of questions are likely to remain permanently unanswered. That list includes the following:

(1) Who in the police department (or city government) allowed Mike Nifong to assume personal command of the police investigation?

(2) What precise interactions occurred between the Durham and Duke police departments?

(3) What precise interactions occurred between Nifong, the DPD, and former SANE-nurse-in-training Tara Levicy? (Levicy, by the way, is currently working in my home state of Maine, where she notes her particular interest in “women’s health.”)

(4) Who gave Cpl. David Addison the information that he used for his fact-free, race-baiting March 2006 public statements? Why was he not subsequently disciplined for his statement?

(5) Who in the DPD made the decision to involve Sgt. Gottlieb in the investigation?

(6) Why was Sgt. Shelton removed from any involvement in the investigation?

(7) Did any backchannel discussions occur between Durham authorities and the Duke administration?

Monday, October 07, 2013

Supreme Court Update

Scotusblog reports that the Supreme Court announced this morning that it would not hear the appeal in the falsely accused players' case. I'll have some more thoughts later today.