The late Supreme Court Justice Antonin Scalia described, in A Matter of Interpretation, a case dealing with the sexual abuse of a young girl wherein she was allowed to privately testify in the presence of the judge and attorneys, with her account transmitted via closed-circuit TV to the courtroom. It was ruled she was too frightened to face the man accused of molesting her. The Court held the procedure to be constitutional, but Scalia dissented, because the Sixth Amendment provides that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This clearly means a face-to-face testimony, because: “It is difficult to accuse someone to his face, particularly when you are lying.” His position upholds an ancient precept set forth in Scripture: “One witness shall not rise against a man concerning any iniquity or any sin that he committed; by the mouth of two or three witnesses the matter shall be established” (Dt 19:15), and “Do not receive an accusation against an elder except from two or three witnesses” (I Tim 5:19).
That a person should be considered “innocent until proven guilty” is one of the bedrock principles of our justice system. Unfortunately, that principle has eroded, as is evident in Stuart Taylor Jr. and KC Johnson’s well-researched and highly readable journalistic work, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case (New York: Thomas Dunne Books/St. Martin’s Press, c. 2007). Though less well known than Duke’s basketball team, the university’s (virtually all-white) men’s lacrosse team was a nationally-ranked powerhouse. During spring break in 2006, the team’s captains hosted a stripper party—an event not all that unusual at a famed “party school” such as depicted by Tom Wolfe’s acclaimed novel, I Am Charlotte Simmons.
One of the two dancers they hired, Crystal Magnum, was a black woman who worked as an “exotic dancer” and also scheduled private performances. When she arrived, however, she was too intoxicated to dance, and in time she and Kim Roberts (the other dancer) departed. Roberts, concerned about Magnum’s condition, stopped at a Kroger store and asked a security guard to call 911. The responding police judged her “passed out drunk” and took her to a hospital. She said nothing about being raped to either her companion or the police, nor did the hospital staff find any physical evidence of assault. However, she talked with one nurse, “a strong feminist who had played a part in a Vagina Monologues production and who saw herself an advocate for rape victims” (p. 33), and she looked notes recording Magnum’s accusations of gang rape. Subsequently this nurse became a primary figure in the Duke Lacrosse Rape Case.
Though Magnum’s companion, Kim Roberts, called the rape accusations “a crock” and the police on the scene scoffed at Magnum’s accusations, a zealous Durham detective, with a history of animosity towards Duke students, determined to open an investigation. Soon thereafter the district attorney, Michael Nifong, with an eye to burnishing his reputation in the black community, determined to prosecute three of the players for rape and began to orchestrate a deeply dishonest process, including a “media barrage unheard of for a prosecutor” (p. 85). He regularly appeared on national TV networks and received fawning praise from the New York Times. Once the accusations were made, the local media and Duke’s administrators and faculty rushed to judgment and loudly condemned the athletes. The local NAACP joined the chorus, broadcasting accusations of rampant “racism” in Durham. Leading the charge was Houston A. Baker Jr., a black professor who insisted all coaches and players on “this white male athletic team” be dismissed. Scores of other professors—most notably the “Group of 88”—condemned the team, often using their classrooms to incite animosities. President Richard Brodhead fired the lacrosse coach (an outstanding man as well as coach), though he was not even remotely connected with anything relevant to the case. Only one lonely chemistry professor dared to withhold judgment until all the evidence was in.
Fortunately for the three accused athletes, they came from rather wealthy families, well-connected with skilled defense attorneys, who carefully interviewed witnesses and collected evidence—including reports showing that “‘DNA was not present in her [Magnum’s] body, not present the surface of her body, and not on any of her belongings or articles of clothing’” (p. 162). Though fully aware of this evidence, Nifong declared: “‘The absence of DNA doesn’t prove anything’” (p. 163). The national media and Duke professors supported him, insisting evidence was irrelevant since the lacrosse players simply had to be guilty. But when the case finally came to trial, things fell apart for the prosecution. The “defense attorneys unveiled the staggeringly conclusive evidence of innocence, and of probable Nifong misconduct . . . found hidden in the nearly two thousand pages of complex and highly technical data” (p. 303). DNA evidence revealed Magnum’s sexual activity with a variety of men, none of them lacrosse players. This was followed by equally devastating details regarding “Mangum’s rigged identifications of the three defendants” (p. 304) and the impossibility of getting a fair trial in Durham. Skilled cross-examination of Nifong’s witnesses devastated his case. In the final analysis: “It was only because the Duke defendants had extraordinarily talented, hardworking and expensive lawyers that the Nifong-Meehan DNA cover-up conspiracy was ever cracked” (p. 313).
As the case collapsed Nifong dropped the charges! The tables turned and he became the target of serious accusations. He later resigned as DA and was disbarred. But even then the Duke professors and the NAACP refused to apologize or backtrack, insisting the incident (even if it didn’t happen) revealed Duke’s pervasive racism! The authors conclude their story by solemnly declaring: “Never in recent memory has misconduct on this scale been exposed while the pretrial phase of a big case was still under way: demonizing innocent suspects in the medias a rapists, racists, and hooligans; whipping up racial hatred against them to win an election; rigging a lineup to implicate them in a crime that never occurred; lying to the public, to the defense, to the court, and to the State Bar; hiding DNA test results that conclusively proved innocence; seeking (unsuccessfully) to bully and threaten defense lawyers and letting their clients be railroaded.” That “Duke faculty activists, media organizations led by The New York Times, the NAACP, and others” supported Nifong’s agenda, even when the evidence against it was overwhelmingly persuasive, is equally reprehensible (p. 356).
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A decade after publishing their expose of the denial of due process for Duke’s lacrosse team, KC Johnson and Sturt Taylor Jr. widened their lens in Until Proven Innocent, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (New York: Encounter Books, c. 2017). This book seeks to bring “readers inside a system on our nation’s campuses in which accused students effectively have to prove their innocence, often under procedures that deny them any meaningful opportunity to do so” (Kindle #56). Rather than become more cautious when dealing with sexual assault complaints, universities doubled down in denying due process to any male accused of wrongdoing. President Obama’s administration weighed in on the issue in 2011, issuing a “Dear Colleague” letter (recently rescinded by Secretary of Education Betsy DeVos), and taking an “unprecedented initiative” designed to deny accused students a fair hearing by ordering “almost all universities to institute revolutionary changes in their disciplinary policies in order to counter” what was “described as an epidemic of rape and other sexual assaults on college campuses. . . . . These change dramatically weakened accused student’s rights to fair proceedings” (p. 2).
“‘Sunlight is said to be the best of disinfectants,’” Justice Louis Brandeis wrote more than a century ago. But colleges go to great lengths, even beyond the dictates of federal privacy law, to keep their sexual assault proceedings in the dark.” After examining four dozen or so cases on elite campuses and studying “tens of thousands of pages of legal documents (many of which have not previously been publicly disseminated), along with information gleaned from university handbooks, statistical studies, and confidential “training” material created for colleges and universities nationwide” (p. 11), the authors describe “how most colleges handle sexual assault allegations these days. Start with an alcohol-soaked set of facts that no state’s criminal law would consider sexual assault. Add an incomplete ‘investigation,’ unfair procedures, and a disciplinary panel uninterested in evidence of innocence. Stir in a de facto presumption of guilt based on misguided Obama administration dictates, ideological zeal, and fear of bad publicity. It’s a formula for judging innocent male students to be sex offenders.” In the opinion of a Harvard Law professor, Janet Halley, “‘The procedures that are being adopted are taking us back to pre–Magna Carta, pre-due-process procedures’” (pp. 8-9). Or, as U.S. District Judge F. Dennis Saylor concluded, after examining one case: ‘It’s closer to Salem, 1692 than Boston, 2015.’”(p. 12).
For the 20,000 to 25,000 students accused of sexual assault since the Obama directive was put in place, “the federal government, joined by virtually all colleges and universities, has mounted a systematic attack on bedrock American principles including the presumption of innocence, access to exculpatory evidence, the right to cross-examine one’s accuser, and due process. Allegations of sexual assault have “received unprecedented attention from politicians, academics, and the media.” Generally the “narrative goes something like this: An astonishing 20 to 25 percent of female undergraduates will be sexually assaulted before they graduate. This epidemic has been sustained by a ‘rape culture’ that permeates university administrations as well as fraternities and other groups of male students. “Women are at a greater risk of sexual assault as soon as they step onto a college campus,” asserts New York senator Kirsten Gillibrand (the foremost congressional opponent of campus due process). Ignoring this emergency, colleges have been indifferent and even hostile to the millions of sexual assault victims in their student bodies. The federal government thus ordered almost all universities to change their disciplinary rules in order to ferret out more sex criminals. Complaints about the presumption of innocence and due process should be disregarded because the crisis is so urgent and because 90 to 98 percent of accused males are guilty. The few falsely accused innocents will suffer no great injustice or harm, because campus tribunals have no prisons; if expelled, these students can move on to other colleges.” Despite this oft-repeated narrative, such “claims are all untrue or unsubstantiated” (pp. 13-14). Nevertheless, they are repeated, as incessantly as a drumbeat, in progressive circles.
By mandating its understanding of Title IX, the Obama administration’s Office of Civil Rights (OCR) prescribed a “single investigator-adjudicator system” whereby “a single person effectively serves as not only detective and prosecutor but also judge and jury. An alleged perpetrator cannot see all the evidence to be used against him, defend himself before a panel of peers or faculty members, have a lawyer meaningfully represent him in the process, or cross-examine his accuser or any other witness” (p. 18). Still more, in accord with this system, universities discarded “what the Supreme Court has called ‘beyond any doubt the greatest legal engine ever invented for the discovery of truth’: direct cross-examination of accusers” (p. 37). In fine, universities effectively implemented one of radical feminism’s pieties—Catharine MacKinnon’s 1981 declaration: “‘Politically, I call it rape whenever a woman has sex and feels violated’” (p. 40).
Thus, to get desired “statistics,” surveys were designed “at the behest of participating universities” to deliberately avoid explicitly “asking about ‘rape’ or ‘sexual assault.’ Instead, they asked about “‘forced kissing’? Unwanted sexual ‘touching,’ which could include attempted close dancing while fully clothed? ‘Promised rewards’ for sex?” (pp. 50-51). Such encounters would be listed as “rape” or “sexual assault”! A journalist examining these materials “identified four key tenets behind the “rape culture” concept: “1) Women almost never lie when they report a sex crime, and to doubt them is to perpetuate rape culture; 2) rape is any sexual act in which the woman feels violated—unless she suffers from false consciousness and needs to be educated about her violation; 3) rape includes situations in which the woman agrees to sex because of persistent advances, ‘emotional coercion,’ or intoxication—or because she doesn’t have the nerve to say no; 4) no matter how willing the woman appears to be, it is the man’s responsibility to ensure explicit consent—or he may be guilty of rape” (pp. 67-68).
Utterly undeterred by the scandal of falsely accusing the lacrosse players in 2006, Duke University officials subsequently decreed: “‘Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion,’ and ‘that condition alone could turn consensual sex into rape, regardless of anyone’s intent.’ Thus a man could be guilty ‘if a woman with whom he had consensual sex later complained that she went along with it only because he was a big man on campus.’ Even a woman’s ‘enthusiastic agreement to have sex was not “consent” if she was “intoxicated,” and all intercourse was classified as rape unless both parties had given ‘affirmative’ consent ‘in each instance of sexual activity.’ While giving lip service to the presumption of innocence, the new policy denied to accused students any rights to have a lawyer present, to confront their accuser, or to examine witnesses” (p. 79). “Sheila Broderick, Duke’s gender violence intervention services coordinator,” insisted on “condemning all alleged perpetrators of sexual assault, regardless of the evidence. If campus disciplinary panels ‘say he’s not responsible,’ even under Duke’s guilt-presuming rules, asserted Broderick, ‘you and I know that he’s responsible, and that’s at the end of the day what really matters.’ That’s worth reading twice. This high-ranking Duke bureaucrat declared that all students accused of sexual misconduct are guilty. Period” (p. 80),
As journalists, Johnson and Taylor are distressed by the media’s “malpractice,” joining the universities in denying due process to men accused of sexual misconduct. Consider the case of Erica Kinsman accusing James Winston (a celebrated Florida State University quarterback) of raping her. A film (The Hunting Ground), supporting her accusations was praised by The New York Times despite ample evidence provided by an expose showing how “the film made a hash of the facts and ignored the copious evidence that Kinsman was not telling the truth about how she ended up in Winston’s bedroom. While pursuing her public campaign against Winston, Kinsman also sued Florida State University under Title IX. The case ended in a January 2016 settlement that some portrayed as an admission of fault by FSU. The university said that it cost less to settle—$950,000, of which $700,000 was designated for legal fees and $250,000 for Kinsman—than it would have cost to litigate and win. In addition, FSU was on notice that settling with Kinsman was the only way to appease OCR, which was investigating her Title IX complaint. By settling her lawsuit by January 25, Kinsman avoided giving sworn deposition testimony the next day. Had she gone forward and repeated any of her past stories, Winston’s lawyers would no doubt have accused her of perjury” (p. 131).
One independent-minded journalist, the Wall Street Journal’s James Taranto, examined the case of an Auburn University student, Joshua Strange. He provides us with “the first detailed look inside a secret campus hearing since OCR revolutionized discipline for alleged sexual assault in 2011. ‘The most striking quality of the 99-minute proceeding is its abject lack of professionalism,’ Taranto wrote. A de facto presumption of guilt hung over the whole process. Not only was Strange barred from cross-examining his accuser, he was separated from her by a curtain. The presiding officer, an Auburn librarian, seemed uncertain of the rules. She deferred to assembled Auburn administrators such as Susan McCallister, who pronounced the accuser credible based on a previous discussion discussion with her’” though she “‘admitted in testimony that “I really don’t need to know a lot of details, and so I didn’t ask her to go into great detail. I don’t really want survivors to have to tell their story over and over again.” Auburn’s way of testing the accuser’s credibility was to disregard evidence casting doubt on it. Sexual assault victims ‘frequently cry,’ and their ‘storytelling is sometimes disjointed, sometimes not,’ and ‘there’s often a lot of emotion inserted into the story that is about being very upset or in disbelief or unsure what to do next, petrified,’ Title IX administrator Kelley Taylor told the panel. Since the latter two conditions apply to virtually any circumstance, true or false, Taranto recognized that Auburn’s standards ‘amounted to a claim that in principle a woman’s tears are sufficient to establish a man’s guilt—an inane stereotype that infantilizes women in the interest of vilifying men” (p. 137).
Some of the sternest critics of the campus rape frenzy are distinguished female Harvard Law School professors. “Nancy Gertner wrote in a long article in the liberal American Prospect that OCR’s demand that colleges use a ‘more probable than not’ standard—coupled with the fact that many colleges concealed relevant evidence while restricting accused students’ lawyers—had created ‘the worst of both worlds, the lowest standard of proof, coupled with the least protective procedures.’ She feared that the new system ‘effectively creates a presumption in favor of the woman complainant.’ Gertner cautioned fellow feminists to ‘be concerned about fair process, even in private institutions where the law does not require it, because we should be concerned about reliable findings of responsibility. We put our decades-long efforts to stop sexual violence at risk when men come forward and credibly claim they were wrongly accused’” (p. 166).
Supporting Gertner’s positoin, the nation’s oldest law journal, The Legal Intelligencer, described the mandates in the Dear Colleague letter as “‘both unconstitutional and unfair’” (p. 193). Long-standing rape victims’ organizations have protested university policies, urging “the federal government ‘to de-emphasize colleges’ internal judicial boards,’ adding that ‘it would never occur to anyone to leave the adjudication of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault?’ College disciplinary processes, it added, ‘were designed to adjudicate charges like plagiarism, not violent felonies. The crime of rape just does not fit the capabilities of such boards’” (pp. 205-206). “Although attempted murder, armed robbery, and felony assault violate the values of every community, nobody claims to believe—as they do in the case of sexual assault—that if the accused and the accuser happen to be students at the same school, such cases should be handled by academics rather than by law enforcement” (p. 208). But the Obama administration ignored such advice, and campus “witch hunts” demonstrably intensified.
Such developments may well have dire consequences as we move “from campus to criminal law,” for “the affirmative-consent movement had spread from the activist fringe to the legislatures of deep-blue states” such as California. For example, a California Assemblyman, Kevin de Leon (who is currently challenging Senator Diane Feinstein for her senate seat), sought to dissolve the “rape culture” pervading college campuses by passing legislation requiring “all universities in California to find a student accused of sexual assault guilty in disciplinary proceedings unless he can prove his accuser gave ‘affirmative consent,’ on an ongoing basis, during intercourse” even adopting the “more likely than not” standard of proof followed by Title IX folks (pp. 220-221).
“The 17th-century English jurist Sir Matthew Hale wrote that rape ‘is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” This dictum, though much deplored by accusers’ rights activists, reflects a genuine dilemma for rape victims, men falsely accused of rape, and the criminal process alike: In a large percentage of “she said, he said” cases, judges, jurors, and other outsiders can never be confident that the accuser is truly the victim of a horrible crime” (p. 238).
In subsequent years, as the authors document in a later treatise, The Campus Rape Frenzy, members of the “Group of 88” professors who most militantly and dishonestly attacked the lacrosse players prospered. “None of its members was penalized, and some were seemingly rewarded for leading the rush-to-judgment mob.” Paula McClain, “an outspoken member of the Group of 88, was elected chairperson of Duke’s Academic Council, the highest-ranking elected position for faculty at Duke; in 2012, she was named dean of the Duke Graduate School and vice provost for graduate education, the university’s second highest-ranking academic position. Duke hailed her as an ‘outstanding university citizen’ and praised ‘her concern for the well-being of individual students’ (p. 77). Unless, apparently, they were men on the lacrosse team!