Wednesday, August 31, 2011

Another astute piece on why the preponderance of the evidence is unjust for college rape cases

Great article by Adam Kissel: Standing Up for Due Process on Campus = "Sticking Up for Penises Everywhere?"

Excerpt: "We're talking about expelling people for one of the most heinous crimes and quite possibly ruining the rest of their lives. We'd better be darn sure before we do that to somebody by branding them as a rapist."

Again, why is this not even part of the public discourse among the people who rammed the "Dear Colleague" letter down the throats of America's colleges?

And see our latest here:

College men at risk: A morally grotesque defense of the new preponderance of the evidence standard at the University of Virginia

The University of Virginia Cavalier Daily applauds the university's new "preponderance of the evidence" standard dictated by the Department of Education's April 4 "Dear Colleague" letter, and has some advice to men to avoid false rape claims:

"This addresses a glaring shortcoming in the current policy, which fails to acknowledge that few cases of rape or sexual assault feature 'clear and convincing' facts. 'The self doubt and confusion a survivor feels after experiencing an assault combined with a lack of knowledge of what to do and where to go in the hours after an assault makes hard evidence difficult to come by in some cases,' Andrea Mousouris, a fourth-year College student and external chair of the Sexual Assault Leadership Council, said in an email. 'For example, date rape drugs leave the system relatively quickly, so if you do not go to the hospital soon after, all evidence is lost.' Although some might claim that this standard is too harsh, there are simple ways for individuals to avoid compromising situations that could lead to false accusations of sexual misconduct. Drinking responsibly at parties and respecting personal boundaries when communicating digitally, for example, would be a good start." (Emphasis added.)

As with all the discussions lately touting and defending the new "preponderance of the evidence" standard of proof, there is an almost breathtaking, and willful, ignorance about the potential harm to men accused of sexual assault they didn't commit. It is perplexing in the extreme that there is no discussion whatsoever of the delicate and critical balance between the need to punish the guilty and the need to insure that the innocent are not punished with them. Only the former interest is deemed socially important; the latter is treated as non-existent.  Yet it is that balance that is at the heart of all serious and mature discussions about how to combat rape.

Some very troubling trends I am seeing in the discussions defending this "preponderance of the evidence" policy:

First, there is an almost religious-like fervor to insist that it is too difficult to punish sexual assault perpetrators under a "clear and convincing" standard.  I am mystified by this. It is, or should be, more difficult to convict under a clear and convincing standard, but it is by no means impossible. Rapists are routinely convicted in criminal courts under the "beyond a reasonable doubt" standard, which is higher than the "clear and convincing" evidence standard, and there is no basis to believe it has become unduly burdensome to punish the guilty on campus using a "clear and convincing" evidence standard.

Second, and even more disturbing, is the implication that since it is allegedly difficult to prove rape under a "clear and convincing" standard, then the solution is to adopt a policy that will make it much easier to punish not just the guilty but even the innocent.

The Cavalier Daily suggests that the absence of hard evidence in many rape claims justifies the lower standard. The Cavalier Daily has it backwards. The absence of hard evidence to prove any crime is a sound reason to be wary about convicting men accused of it, not a valid justification to make it easier to convict the innocent with the guilty.  This point is so terribly fundamental and beyond dispute that it has been lost in the cacophony.

As Cynthia Bell recently pointed out: rape should be tough to prove, because the higher standard of proof protects the innocent. As Ms. Bell explained: "Lowering the burden of proof in these cases puts more college students at risk of being wrongly found guilty and having their reputations permanently damaged. How many innocents does OCR want to see mistakenly expelled as rapists in the name of getting tough on crime?" 

By insisting that the accusation should be afforded a weight just about equal to the defense, we are tossing Blackstone's formulation onto a scrapheap of politicized indifference. This reverses a policy that has been settled since the time of Abraham, as chronicled in Book of Genesis. When God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put the question to him: "Are you really going to sweep away the innocent with the guilty?" After repeated probing by Abraham, God made it clear he would not destroy the guilty if it meant destroying the innocent with them.

Third, we are allowing to be done to men what we say should not be done to women: victim blaming.  Read what the Cavalier Daily says men should do to avoid false rape claims: ". . . there are simple ways for individuals to avoid compromising situations that could lead to false accusations of sexual misconduct. Drinking responsibly at parties and respecting personal boundaries when communicating digitally, for example, would be a good start."

Imagine the outcry if a college newspaper said "there are simple ways for women to avoid compromising situations that could lead to rape."  While safety precautions directed to both men and women are, in fact, appropriate, in the politicized rape milieu, it is now officially politically correct to urge males to be cautious in their behavior while telling females they can party to unconsciousness.

What is lost in the entire discourse is any recognition that these are complicated, serious issues that are ill-served by shrill pandering to powerful interest groups. Basing a public policy on the desire to punish the guilty without protecting the innocent is not just childish and mean-spirited, it is morally grotesque.

UPDATED: Federal suit: Male student claims Sewanee: The University of the South rushed to judgment on rape charges against him; shocker--Brett Sokolow testifies for HIM

An unnamed male ex-student of  Sewanee: The University of the South, is suing the Episcopal-affiliated university in southeastern Tennessee for breach of contract and negligence because, he asserts, the university harmed his reputation and career prospects by violating its own rules in response to a sexual assault allegation against him in the fall 2008 semester.  The suit alleges a classic rush to judgment by the school against the male student that sounds typical of many others that we've chronicled on this site. If the evidence supports the male student's version of what happened, he was guilty by reason of accusation alone.  The suit seeks $1 million in compensatory damages. If the jury decides there are punitive damages the amount will be determined in a second deliberation.

We can't make a prediction about what the jury will do because that will depend on the evidence being presented at the trial. But if you want to know how badly the school behaved in this case, this one fact might just tell the whole story: Brett Sokolow, the architect of the nationwide crackdown to make it easier to expel young men accused of sex crimes (dare we say, even the innocent) -- that Brett Sokolow -- testified on behalf of the male student in this case. Read that again. It is true. We just wrote about Mr. Sokolow earlier this week (see here).

Defense counsel asked Sokolow for his opinion on how Sewanee handled Doe's case. 'The university did not satisfy the standard of care,' Sokolow responded."  

It marks the first time Sokolow has ever testified on behalf of a male student. That's how badly the school behaved.

The unnamed plaintiff was an out-of-state freshman when he and the female student had some sort of sexual contact in his dorm room about 1 a.m. on Aug. 30, 2008. She then left about 7 a.m., walked to an emergency phone and called university police.  Records show that when officers arrived she told them she had been raped and they took her to a hospital. The case was never taken to the district attorney.

According to one newspaper:

"On Aug. 29, 2008, Doe and an 18-year-old female freshman had sexual intercourse in his dorm room, according to court documents. The woman, identified as A.B., stayed for a few hours after the act, left about 7 a.m. and called police to report she had been raped by Doe.

"In court, Wayne [attorney for the male student called "John Doe" at trial] laid out the timeline of events Doe faced.

"On Sept. 16, 2008, A.B. [the accuser] met with Sewanee Dean Eric Hartman, who handles student disciplinary actions. A.B. related her memory of the alleged rape and made a written statement detailing the incident.

"Based on her statement, Hartman categorized the allegation as rape and contacted faculty to begin an investigation.

"Two days later, Hartman spoke with Doe, informing him that he had been charged with violating the school's sexual harassment and assault policy and that there would be a hearing by the faculty committee the following day.

"Wayne told jurors that Hartman told Doe to bring a character witness and talk with his faculty-appointed advocate before the committee meeting. Doe also was told that he would not be allowed into the proceedings except for when he was called to testify, Wayne said.

"Doe said Hartman asked for a written statement and advised Doe to say he was too drunk to know what was going on the night of the incident and that he is sorry.

"The committee met the next day and, within a few hours, found Doe guilty and told him he had two days to leave campus.

"Hartman told Doe to 'destroy' all related materials and that appealing the decision could increase his punishment and possibly cause A.B. to pursue criminal charges, Wayne told the jury. Doe's options, according to Hartman, were to leave school for one semester, reapply for admission with the incident remaining on his student record or withdraw for a year and reapply for the next fall with a clean record.

"Doe left campus and decided on the one-year option, but later decided not to return. In June 2009, he and his parents, identified as James and Mary Doe, filed the lawsuit."

For those of us steeped in the writings of Blackstone, Marshall, Holmes, Brandeis, and Cardozo, this, of course, does not resemble anything remotely approaching justice.  We shall see how the evidence plays out.

UPDATE: 8/30/11 -- a story not available when we wrote the above is found here: -- highlights: "Sokolow characterized the university's hearing process as unfair." And: "Sokolow said the school should have given Doe more time to mount a defense, called medical experts for more information and handed over evidence that could have helped Doe before the hearing." In contrast, the university's expert said: "I believe the one-day notice satisfies the university's standard."  Really? Some standard.  Read this next part -- according to the university's expert: ". . . the university followed the standard methods of such hearings and that the hearings do not rise to the level of scrutiny in a criminal trial. 'This is a disciplinary proceeding, an education opportunity.'"

Yes -- an "education opportunity" that can destroy a young man's life. Colleges would do well to spend more time insuring their hearing processes are fair than in dreaming up ways to gussy up injustice as something noble.


Tuesday, August 30, 2011

The Rope Bridge: A Parable for College Men (Who Do Not Commit Sexual Assault)

You're hiking near the village of Husaini in Pakistan and you come up to the Borith Lake. The only way across is a rickety old rope bridge.  It doesn't look strong enough to hold you, and you're having some serious doubts about this. 

You look to your guide, who's had lots and lots of experience with rope bridges.  He tells you with both a smile and the utmost sincerity, "I'd give it a better than even chance that you'll make it across."

"Better than even chance" you think!  "So there's -- what? -- a 49 percent chance that I won't make it across?!!"

I'd say that's more than a little doubt; that's substantial doubt.

Are you going across that bridge? 

Let me answer it for you: not a chance in hell. I know you -- you don't take risks that huge about important matters.


Well, young man, the Obama administration, for one, is willing to take a risk with you, about something pretty damn important, too. It is willing to let you be expelled from school -- and have your future forever marred -- if you are found responsible for committing sexual assault, even though you didn't do it, and even if they have substantial doubt about whether you did it. 

Read that last part again. It's not hyperbole.

If you've been hiding under a rock since last spring, or playing too many video games, or studying female anatomy a little too intently on the Internet, you may not know that the Obama administration changed the law last April 4 for colleges: if you are accused of sexual assault while attending college, even if you are factually innocent, the school needs to find only a slightly better than 50% likelihood that you did it in order to expel you. Good luck getting into a good school, much less going to grad school, if that happens.

You see, when it comes to your life, they have no problem taking a substantial risk that the school might just get it wrong. They're willing to let you go plummeting into that river just so they can be sure they are catching all the real bad guys. You are collateral damage in their more important war on rape.

Don't take my word on it. Read about it here.

'Dear Colleague' letter was promulgated in secret, and is not just

On Sexual Harassment and Title IX by Robert Smith

Atrocity: Surgeon went to prison after his accuser and her boyfriend lied on the stand

In 2007, Labeed Nouri, then-36-years-old, had a wife and four children and a thriving medical practice as an orthopedic surgeon in Michigan. He was vice president of the church council at St. Toma Syriac Catholic Church where he worshipped. A Chaldean who had emigrated from Iraq in 2003, Dr. Nouri often treated other Chaldeans in his tight-knit community.

In late May 2007, one of Dr. Nouri's Chaldean patients asked Nouri if he would hire his 19-year-old daughter. Dr. Nouri and his wife, Rouwaida Nouri, who managed his medical practice, agreed to hire the young woman for two days a week to help with filing in their medical office.

On June 22, 2007, on just her sixth day of work, the young woman alleged that sometime between 7:15 and 7:23 p.m., Dr. Nouri sexually assaulted her with his hand in an exam room. How was the young woman sure of the time? She said she noticed the times on clocks in the office and in her car when she left. At 7:33 p.m., she called her boyfriend in a parking lot 2 miles from the office, and told him she had been assaulted. 

The woman's parents took her to police and to a hospital. She refused to allow a rape exam, saying she was a virgin and such an exam would "un-virginize me," records show.

Records eventually obtained by the defense showed that Dr. Nouri was in his office from 7:06 to 7:27 p.m., continuously dictating over the phone to a medical dictation firm.

Charges were brought against Dr. Nouri. If convicted, he would likely serve many years in prison. The accuser and her boyfriend testified at trial. Defense lawyers tried to show that the young woman had concocted the story because she had been sexually active and was trying to cover up her loss of virginity. The woman was from a conservative Chaldean Catholic family, and virginity is highly prized in their faith. 

The woman and her boyfriend repeatedly claimed on the witness stand that she was a virgin, a central issue in the case.

Initially, the jury was hung, with jurors twice asking to review the accuser's testimony. On July 2, 2008, they found Nouri guilty.

After the verdict, Dr. Nouri's defense counsel asked jurors how they thought Dr. Nouri could have been dictating over the phone at the same time his accuser claimed he had been assaulting her. Jurors said that since they couldn't reconcile the time line, they chose to disregard it. "They said they then just decided to go by their gut," said Dr. Nouri's defense counsel.

Dr. Nouri was sentenced to 10 to 20 years in prison for sexual assault convictions .

While Dr. Nouri was incarcerated, he was repeatedly assaulted by fellow prisoners. His nose was broken and his teeth were cracked. He was hospitalized for three days and received stitches to his face, according to a federal lawsuit filed against Oakland County. (Oakland County corporation counsel Keith Lerminiaux acknowledged that Nouri had been assaulted in the jail but said he was the aggressor in one of the attacks.)

One day in late 2010, while Dr. Nouri sat in a prison cell, his accuser's boyfriend spotted Dr. Nouri's wife and four children and was suddenly overcome with guilt.  It turns out the young man had lied about his sexual history with the accuser and wanted to make amends.  The young man went to Dr. Nouri's attorney and admitted that he and the accuser had been sexually active for months leading up to the allegation and that they lied on the witness stand.

Dr. Nouri's attorney asked the man to secretly record conversations with the accuser. The man met with her in March, and while recording their conversation, he told her he was worried private investigators were looking into the perjury. The accuser, according to the attorney and prosecutors who have heard the recording, admitted she lied on the stand but instructed the man to keep denying it if he's questioned.  She told him that if authorities discover credit card receipts showing she was at local motels, she will say she lent the card to a friend. She also discussed feigning a mental breakdown so she would be hospitalized, a tactic she says she hoped would discourage a continued investigation.

By this time, Dr. Nouri had served more than three years behind bars. Prosecutors, noting Nouri had been convicted, offered him a deal: If he pleaded no contest to a low-level misdemeanor assault -- with no probation-reporting requirements and no restrictions on obtaining his medical license -- he could be free within hours and get it expunged after five years. It took Nouri, who was sitting in a prison cell at the Kinross Correctional Facility in the Upper Peninsula, two days to agree. "I'm thinking, 'No, I didn't do anything,' " he recalled. "But then I think, 'I take this and I can see my kids in a day or two.' I hadn't seen them in three years. I took it."  The choice was really no choice at all: "Which one would you choose? Be in jail for something you didn't do or go immediately?" Nouri said. "We will fight the very minor misdemeanor." Dr. Nouri was removed from the sex offender registry.

Now, another lie has surfaced. When Dr.Nouri was sentenced to prison in April 2010, the judge read a letter signed by his accuser's priest.  "A young girl has had her youth stolen," the letter read. "I have told her to forgive Labeed Nouri. She has forgiven him, but she needs closure on this terrible ordeal. ... It is time to grant her wish of getting her justice and put Labeed Nouri in jail where he deserves to be."

It turns out the pastor denies writing the letter. "I have never written any letter," Kejbou told a Detroit newspaper. "Anybody can forge a signature."

Dr. Nouri's accuser, who continues to maintain she was sexually assaulted, has become a licensed practical nurse. She is not named in the newspaper accounts because she has not been charged with a crime.

And now, Dr. Nouri is on a mission: he's trying to get his accuser charged with perjury. "She took three years from me," he said. "I can never get them back. My youngest daughter was a baby when I went away. I never saw her first step, heard her say her first word. It's my turn for justice." 

Oakland County Prosecutor Jessica Cooper, who dropped felony charges against Nouri and sought his release from prison when she learned of the perjury, said she is awaiting police reports before deciding whether to file any charges against the woman. "We moved heaven and earth to get him out immediately when we learned of this," Cooper said.


Former prosecutor Scott Turow gives Cyrus Vance passing grade on handling of DSK matter

Excerpt: " . . . the standard that Vance and his assistants employed in deciding to dismiss the case is noteworthy and laudable. "If we do not believe her beyond a reasonable doubt," the prosecution wrote in its motion to dismiss, referring to Diallo, 'we cannot ask a jury to do so.' This is not the bar all prosecutors set in deciding whether or not to go forward. Ethical rules prohibit lawyers from calling a witness whose testimony they know to be false; but the rule is not the same when the testimony is possibly true but dubious. Particularly in urban criminal courts, where caseloads tend to be overwhelming and the police sometimes push cases aggressively, prosecutors are often not convinced beyond a reasonable doubt about the truthfulness of particular testimony. Frequently they leave it to jurors to determine the credibility of a particular witness. In trying to talk prosecutors out of weak cases, I have been told more than once, "I wasn't there, man, and neither were you. Let the 12 of them figure it out."

"In practice, this means that even defendants who are probably innocent must endure the anguish of trial. I once represented a young man in a gang murder case who had been arrested and indicted along with eight other people, even though his name was never mentioned in the grand jury testimony. Although it seemed clear that the police had mistaken this young man for his brother, both the prosecutors and the judge told me to 'put it on,' meaning go to trial; the client sat in court for several days, in jeopardy of a lengthy prison term, before the case against him was finally dismissed."


A malicious mother with an axe to grind

Contentious divorces, where children are involved, tend to contain false accusations. The following is exactly that situation. The interesting part? The ex-wife has been given a jail sentence, even if it really isn't much of a punishment. And from the information supplied, she still has custody of their daughters.

Lauren Lippe, according to Judge Robert Ross, is "a vengeful roadblock, the barbed wire standing in the way of her two daughters and their desperate dad."

While this may be something more appropriate to the Fathers & Families site, she also falsely accused the father of molesting one of the girls.

Lippe is known to engage in tirades against Ted Rubin (her ex) in front of the girls calling him a “deadbeat,” “loser,” “scumbag” and “f – - – ing asshole.”, and according to Judge Ross, would deliberately plan last minute trips and events when Ted was scheduled to visit the girls. While it is contentious, this seems to be a clear cut case of Parental Alienation Syndrome (PAS).

If Rubin protested, Lippe would berate him mercilessly. Court documents say that she once blared at him, “We all hope you die from cancer,” with both daughters in her arms.

When describing the hell he had gone through, including missing out on Hanukkah with his children, Lippe was smirking in court. The worst part, according to Ross, was "the crescendo of the plaintiff's conduct" which included false accusations of sexual abuse.

In 2008, Lippe charged that Rubin had fondled the breasts of one of his daughters. She later admitted she knew nothing had occurred.\

Judge Ross wrote in his decision, handed down last week, “The evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement.”

He was also a little upset that she had punished the children for wanting to spend time with their dad.

The sentence, while at least is an on record punishment, really amounts to a slap on the wrist. She has to spend six weekends in jail, but it will be served on the first and third weekends in June, July and August. The sentence has been stayed pending appeal.

Please pay special attention to the next part: Rubin is expected to take care of the children while Lippe is on lockdown.

Notice that he was not given custody, even with all of the garbage this sorry excuse for a mother has pulled. Someone is going to have to explain to me why she deserves anything other than supervised visitation, with him having primary and physical custody.

Kieth Rieger, Lippe's lawyer, criticized the decision. “It’s extremely unusual, and in this case, it’s inappropriate,” Rieger said. “He chose to believe the husband and not her. Of course, she’s upset, but she’s also worried about her children. She’s worried that if she goes to jail how it will affect the children.”

Do you think, Mr. Rieger, she should have given that some consideration before she made false accusations, and interfered with Mr. Ruben's visitation?

Rubin, 52, a marketing executive, declined to comment, but has sounded off about his dilemma on his Internet blog: “Spending time with my girls is something I put before all else,” Rubin wrote last year. “They are teenagers now and being a divorced dad, it can be challenging to continue to reach out, put them first, and maintain this in the face of their occasional lack of interest and the roadblocks so easily put in place by their mom.”


Monday, August 29, 2011

'DSK case exposes rift between feminists'

We have explained here how women's advocates do a disservice to rape victims by telling them that justice was not served in the DSK case.  Read our summary. I suspect any objective reader will agree.

Along the same lines, feminist Ludy Wadham writes for CNN:

". . . the Strauss-Kahn case has uncovered the divide, not between men and women so much as between old and new feminists. Old feminists, from Genevieve Clark to Erica Jong, believed that the goal was political and sexual freedom for women, not the political and sexual subordination of men.

"I cannot accept the idea that womanhood automatically implies victimhood, nor do I think that it is a desirable state of affairs when women see men as the enemy.

"The man-hating tirades of my female colleagues are nothing but puritanism in disguise and I suspect that our feminist forebears would be dismayed by the climate of inquisition that seems to dominate relations between men and women today." (Read the entire piece here)

Bravo!  Ms. Wadham isn't the first feminist to discuss the DSK case in an intelligent way, but hers is the bluntest criticism I've seen directed at other feminists.  It is criticism richly deserved. The "new" feminists she writes about have proven themselves too childish to have an adult discussion about a very complex, and very important, matter. They start and finish every discussion the same way: the male is guilty, period. If that sounds overly simplistic, then you haven't read our piece on DSK referenced above. That's exactly what they did.  On this basis, they have proven themselves unfit to be part of the public discourse on rape. (Even though this blog gives voice to the wrongly accused, we were careful to try not to prejudge the case. When Susan Brownmiller said she believed Ms. Diallo, we expressed our dismay about "believing" anyone when the facts weren't available to us.)

Persons of goodwill need to step up and insist that serious matters be discussed seriously, without the shrill, politicized, gender-divisive, knee jerk, and conclusory rhetoric.

From the archives: Brilliant 21 year old article about consent could have been written yesterday

Read it here.

Back to school special: Informative sources regarding the Department of Education's April 4 "Dear Colleague" letter

*Department of Education's April 4 "Dear Colleague" directive

*Jennifer C. Braceras, Civil rights wronged on campus

*Sandy Hingston, The new rules of college sex

*Peter Berkowitz, College Rape Accusations and the Presumption of Male Guilt

*Robert Shibley, A warning to college parents and grandparents

*Paul Elam, An urgent and rare opportunity to speak out

*Cynthia Bell, Rape should be tough to prove

*Christina Hoff Sommers, In making campuses safe for women, a travesty of justice for men

*Cathy Young, Sexual Assault on Campus--Is It Exaggerated?

*AAUP, First letter to Department of Education

*AAUP, Second letter to Department of Education

*Tim Cavanaugh,  Stanford so smart even its rapists are logical

*Jacob Sullum, At the University of North Dakota, yes also means no 

*Ilya Shapiro,  Due Process stops at the campus gates?

*Harry Crouch, The death of due process for men in higher education

*Charlotte Hays, The pesumption of male guilt

*Harvey Silverglate, Yes means yes, except on campus

*Jeffrey Hadden, The feds' campus Keystone Kops

*Michael Barone, Feds crack down on campus flirting, sex jokes

*Hans Bader, Education Department Undermines Due Process and Accuracy in Campus Sexual Harassment Cases

*Hans Bader, Education Department “Dear Colleague” Letter Shreds Presumption of Innocence in Harassment Cases, Ignoring Supreme Court

*Hans Bader, Falsely accused teachers and students will be harmed by new Education Department policy

*Pierce Harlan, The Chances of Holding Your Son Responsible for a Rape He Didn’t Commit Have Just Skyrocketed

*Mark Bennett, Stanford and the loss of innocence

*Greg Lukianoff, Yale, the Department of Education and the looming free speech crisis

*FIRE, letter to Department of Education

*FIRE, FAQ for Students on New OCR Mandates

NCHERM, which plays a leading role in setting campus policies on sexual misconduct, thinks the example below is misconduct. What do you think?

The National Center for Higher Education Risk Management (NCHERM) advises colleges on sexual assault policy and plays a major role in shaping the public discourse about sexual misconduct on campus. It's client list reads like a who's who of American institutions of higher learning. The federal initiatives reflected in the Department of Education's April 4 "Dear Colleague" letter were a reaction to its efforts.  (See, e.g., here.) 

Here is an example of what NCHERM thinks constitutes sexual misconduct (found on page 9 of this document). What do you think?

Foolish teens file false sexual assault report

The two claimed that they had intervened in an attack on a woman being sexually assaulted, but it turns out they had been horsing around and that is how they were injured. Exactly how they thought that was a good idea, we likely will never know. The posted $1,000 bail each and were released.


Sunday, August 28, 2011

I don't know what scares you, but Brett Sokolow scares me

Sandy Hingston proved that the sexual grievance industry isn't some imaginary bogeyman concocted by rape apologists, but that it's alive and well and living on campus, and that mothers and fathers of college-aged sons should be afraid. Very afraid. Read Hingston's New Rules of College Sex here.

If Hingston is correct, the leader of this industry is a Villanova law grad from Malvern, Pennsylvania -- a sexual assault activist and a true believer who has capitalized on his convictions named Brett Sokolow.

Hingston writes: "IF YOU'RE CURIOUS as to how student sexual misconduct became a federal civil-rights liability for colleges, the man with the answer is perched in shorts and bare feet on a big, comfy sofa in the vault-ceilinged living room of his stone home in Malvern. Brett Sokolow, a ’97 Villanova Law grad, is founder of the National Center for Higher Education Risk Management, or NCHERM (pronounced 'en-kerm'). For more than a decade, the genial 39-year-old has been warning colleges and -universities—he’s of counsel to more than 20, and has advised thousands—that the day was coming when courts would allow Title IX claims against them for sexual assaults. 'The ‘Dear Colleague’ letter was one of the most important moments of my professional life,' he says."

Here's the chilling part. One of Sokolow's models for sexual assault judicial procedures is the NCHERM CAMPUS SEXUAL MISCONDUCT JUDICIAL TRAINING MANUAL (now in revision, so download this version quickly) found here:

We will have much to say about this document, and others written by Mr. Sokolow, but for now, let us focus on just one: Mr. Sokolow's take on whether the "clear and convincing" standard of proof or the "preponderance of the evidence" standard should be used in college disciplinary hearings for sexual assault. Don't trust my characterization -- read for yourself on pages 21-22.

The gist of it is that Mr. Sokolow understands why some colleges want to use the higher "clear and convincing" standard due to considerations of "fairness" for accused students who might be expelled. However, he declares, that is not the best practice because the clear and convincing standard doesn't allow the "victim" (his word) to "win" under certain sexual assault scenarios.

Let that sink in. Sokolow seems to understand the concern about the danger of punishing the presumptively innocent, but dismisses it in the face of his fear that "victims" can't "win" with the "clear and convincing" standard.

And Blackstone's formulation (it is "better that ten guilty persons escape than that one innocent suffer," Commentaries on the Laws of England, 1765) -- which, I'd guess, young Mr. Sokolow doesn't think should apply in this setting -- is not a concern.

I don't know what scares you, but Brett Sokolow scares me.

Friday, August 26, 2011

The man behind the Dept. of Education's crackdown on campus sex: Brett Sokolow

Must reading:

Daily Mail: 'Wicked' women jailed for accusing man of rape after he showed police pictures of their consensual threesome

Court told they lied because they had partners and felt ashamed by what they had done

By Sarah Graham

Two 'wicked' women who falsely claimed they were raped by the same man were jailed today after he showed police photos of them enjoying a threesome.

Jennifer France, 24, and friend Kelly Weston, 27, posed for saucy snaps on victim Enes Gozalan's bed after meeting him in a local pub.

A court heard they later made the false allegation because both had long-term boyfriends and were ashamed of what they had done.

Their 30-year-old victim said the incident had ruined his life and he was relieved that he kept the photos on his mobile phone.

He was arrested and kept in custody for 18 hours after the pair claimed they had been raped multiple times.

As soon as Gozalan was arrested and put in a police car he pulled out his mobile phone and told officers 'I can prove that I did not do it because I have taken pictures.'

He later told the officers: 'The photographs show the girls were having a good time. I do not understand why they would make up something so nasty.'

Prosecutor Carolyn Branford-Wood told Southampton Crown Court that Weston attended a police station two days after the alleged attack.

She said: 'Miss Weston had been out with Miss France for a meal.

'Following the meal both young women continued to socialise together and drinking.

'During the course of the evening they met two Turkish men. The four of them had been in a pub together and left together.

'Miss Weston went on to claim that she had been raped by one of these men at his home.

'The following day Miss France also informed the police that she too had been raped by the same man.

'Officers arrested Mr Gozalan and his immediate response was 'I can prove that I did not do it. I have taken pictures of the contact between us on my phone.'

'He surrendered the phone to the officer, who was able to examine the pictures.

'These show not only him engaged in sexual activity, but the two women too.'

Mr Gozalan was released on bail following his arrest on October 18 last year.

He was later informed no further action would be taken.

Weston and France were arrested in January on suspicion of perverting the course of justice.

In two interviews Weston maintained that she had been raped, but in a third interview she broke down when she was shown the photographs.

Miss Branford-Wood added: 'She said she had gone to Mr Gozalan's house and had consensual sexual activity with both him and Miss France.

'In police interview Miss France said she had made up the account to cover up the fact she had had sex with someone who was not her boyfriend.'

In a statement read to the court Mr Gozalan said the incident had 'ruined' his life.

He said: 'I was shocked when I was arrested for rape. My first thought was that I was pleased I kept the photographs, which showed the girls were having a good time.

'I do not understand why the girls would make up something which is nasty.

'I have faced threats of attack following the allegations and have had sleepless nights. I hope I never see them again because they have ruined my life.'

France, of Southampton, Hants, and Weston, of Eastleigh, Hants, each admitted one count of perverting justice. They were jailed for 20 months each.

The court heard mother-of-two Weston accepted she had done wrong and feared going to jail because she wanted to look after her children.

Natalie Wood, defending France, said she had felt guilty about having sex with Mr Gozalan because she too had a boyfriend.

Judge Peter Ralls QC described their false rape claims as 'wicked.'

He added: 'The allegations you have made are of the most serious kind and were entirely false.

'Although there had been sexual activity between you and Mr Gozalan and between you together, there was no force and it was consensual.

'By supporting one another with these wicked allegations, you have aggravated matters.

'If carried through, this man was at serious risk of being imprisoned for a long period of time, perhaps 10 years, perhaps indeterminately.

'The consequences would have been catastrophic.

'Perhaps you embarked on this because you felt ashamed. You undermine public confidence in rape cases and do society a misjustice.

'Fortuitously Mr Gozalan was able to provide photographs. I dread to think what might have happened if he hadn't.'

After the case Detective Sergeant Martin Myers said: 'Hours of officers’ time were wasted which could have been used to investigate genuine reports of crime.

'The investigation process would have also caused the man being accused of committing a serious sexual offence a great deal of distress.

'We continue to encourage anyone who has been a victim of a sexual offence to report it to police.

'All reports are taken seriously and support is available throughout the investigation and trial process.'

Women's advocates do disservice to rape victims by telling them that justice was not served in the DSK case

FRS Reveals What's In the Motion to Dismiss: It's Eye-Opening

This is a post intended for rape victims. Although this blog gives voice to victims of wrongful rape charges, we also want rape victims to be able to seek healing and justice. A close a family member of mine was a victim of a brutal sexual assault. We do not harbor rapists at FRS nor do we advocate for them to elude justice.

To all victims of sexual assault we say this: do not -- we repeat -- do not allow the decision by New York County prosecutors to dismiss the charges against Dominique Strauss-Kahn ("DSK") to dissuade you from reporting that you've been raped. 

You are being terribly misled if you listen to the persons or groups who suggest that the DSK case sends a "very bad message to women vulnerable to sexual abuse" that rape victims have to be "perfect" in order to get justice. It is most distressing to read the following: ". . . for many feminists and victims' advocates, the victory for Strauss-Kahn is a defeat for women who have been sexually assaulted or raped, and who may already have been nervous about coming forward." See here.

By failing to tell the whole story, and by publicly insisting that women can't get justice unless they are "perfect," those victims' advocates, themselves, are improperly discouraging rape victims from coming forward.

The accuser in the DSK case, whose name is Niasfatou Diallo, wasn't just not perfect; according to the very prosecutors who arrested and charged DSK (and allowed him to experience a humiliating and high profile "perp walk"), she was "persistently" and "inexplicably" untruthful to prosecutors. But don't believe me -- read the motion to dismiss that was filed by prosecutors. I suspect that very few, if any, of the persons who are alarming rape victims have read it. See here:  We are going to explain it, below. We suspect it will be eye-opening for a lot of people.

In their motion, the prosecutors make clear: "That an individual has lied in the past or committed criminal acts does not necessarily render them unbelievable to us as prosecutors, or keep us from putting them on the witness stand at trial." But the prosecutors explained that Diallo's case was different: ". . . the nature and number of the complainant's falsehoods leave us unable to credit her version of events beyond a reasonable doubt . . . ."  They explained that Diallo's "credibility cannot withstand the most basic evaluation. [She] has provided shifting and inconsistent versions of events surrounding the alleged assault, and as a result, we cannot be sufficiently certain of what happened."

The lesson, as shown below, is that in rape cases, which often hinge heavily or even entirely on credibility, rape victims need to be completely honest with prosecutors. I am aware of many rape cases brought to trial where the accuser was herself accused of making prior false rape claims, but this did not dissuade the prosecutor from bringing the rape case to trial. Having an imperfect victim does not normally preclude charges from being brought to trial. But lying to the prosecutor, whose job it is to try to weave a credible narrative for the trier of fact, will.

According to the motion to dismiss: "In virtually every substantive interview with prosecutors, despite entreaties to simply be truthful, [Diallo] has not been truthful, on matters great and small . . . . Over the course of two interviews, for example, [she] gave a vivid, highly-detailed, and convincing account of having been raped in her native country, which she now admits was entirely false."

Diallo's "longstanding pattern of untruthfulness" includes some false statements under oath about this case to the grand jury, which would have been revealed at any trial.  Diallo admitted that she lied to the grand jury about her activities in the immediate aftermath of the alleged incident. And it wasn't even limited to that. Diallo "displayed a repeated lack of candor about a wide range of additional topics concerning her history, background, present circumstances, and personal relationships." She has been "persistently" and "inexplicably" untruthful to prosecutors, the motion said.

Let's focus on one. Diallo gave prosecutors "irreconcilable accounts" of what happened in the immediate aftermath of the alleged incident.  From May 14 to June 28, Diallo told prosecutors that after the incident, she immediately fled DSK's suite at Room 2806 of the  Sofitel Hotel near Times Square and went to the far end of the 28th floor hallway.  She claims she spit out semen on the carpet of the hallway.

On June 28, however, she admitted that she had lied under oath to the grand jury and that she had been untruthful with prosecutors on material points about this incident.  For the first time, she admitted that immediately after the incident, she went to another room, room 2820, to finish cleaning it. She detailed her activities in cleaning in that other room. Then, she said, she returned to DSK's room and began to clean it as well. Then, she happened to encounter her supervisor when she went to a linen closet to retrieve supplies. 

Prosecutors checked out the electronic swipe records and determined she was only in room 2820 for a very short time -- less than a minute -- and could not have engaged in the cleaning activities she detailed.

On July 27, her story changed again. This time, she said she had cleaned the other room, room 2820, earlier in the day, not after the alleged assault. She said that after the alleged incident, she ran into 2820 only momentarily to retrieve cleaning supplies. And, importantly, she denied that she told the same prosecutors a different version of the story on June 28, as noted above. That latter denial caused the prosecutors to call her credibility into question on a most fundamental level. (The suggestion from the motion is that they lost all faith in her.) Prosecutors said they had no confidence as to whether Diallo would tell the truth on this issue at trial, which is highly problematic. They simply didn't know what to believe.

Diallo also lied to prosecutors about being gang raped in Guinea. Again, much misinformation about this lie have been floating around the press. On May 30, she told prosecutors a powerful, emotional, and convincing account of being gang raped in the presence of her 2-year-old daughter.  But on June 8 and 9, she admitted "that she had entirely fabricated the attack."  Asked why she had lied, she told prosecutors that she had relied on the incident in her application for asylum (in fact, she had not), and besides, she said, her prior statement to prosecutors wasn't under oath. 

Have you read enough yet?

Wait, she's not finished. Then, she admitted that she had learned the gang rape tale by memorizing a fictional rape recounted on a cassette tape because she intended to use it when she sought asylum. But she decided not to use the tale in her written asylum application. 

Prosecutors found it fatal that Diallo had lied with with the same conviction about the alleged gang rape in Guinea that she employed to describe the alleged incident at issue.  On June 9 and 28, she insisted again that she had been raped in other incidents in Guinea, but prosecutors had no way to investigate these alleged incidents.

Beyond that there were other credibility problems. She repeatedly committed fraud in seeking low income housing. Moreover, she had a telephone discussion with her alleged fiance about financially profiting from the DSK incident. Despite insisting she did not want to benefit financially from the case, she later filed a civil action for money damages.

In addition, the motion painstakingly details the fact that there is no physical evidence of forcible compulsion or lack of consent.

The prosecutor, the motion explains, has an obligation not just to the "victim" but to society. He has a duty to seek justice, not just win cases. His or her obligations are bottomed on the "fundamental value determination of our society that it is far worse to convict an innocent [person] than to let a guilty [person] go free."  While charges may be brought on probable cause, felony prosecutors in New York County have a policy of only bringing cases to trial where they are personally convinced of the defendant's guilt beyond a reasonable doubt. Here, they were not so convinced.

My summary can't do justice to the motion. The cumulative effect of a cavalcade of lies, both big and small, under oath and not, and especially the lies told to the prosecutor whose job it is to present a credible narrative, was overwhelming.

To suggest that the charges were dismissed because Diallo is not a "perfect" victim is a gross and puerile distortion of reality and can only dissuade rape victims with legitimate claims from coming forward.  To better serve both rape victims and the presumptively innocent accused of heinous sex crimes, we need to move the discourse to a more mature level.

It is well to note that no one else, aside from women's advocates, are spreading the view that justice was not served here. There is, in fact, a widespread international consensus among objective observers -- observers who do not speak regularly on gender issues and have no axe to grind in the matter -- that the sexual assault charges against Dominique Strauss-Kahn were properly dismissed. That consensus was generated not by any sympathy for Mr. Strauss-Kahn, who is by no means a sympathetic figure, nor by antipathy for his accuser's gender, race, or ethnicity, but because it is painfully self-evident that the charges simply are not sustainable. Many thoughtful observers, including feminist Naomi Wolf and a host of serious commentators in the European community, viewed with alarm American law enforcement's zealousness in bringing the charges.  Those who condemn the dismissal of these charges voice a position that is so extreme and discordant with fundamental values cherished by our jurisprudence, and that strays so far from the mainstream of serious and reasoned thought, that they have lost any rightful claim to participate in the public discourse about the serious issues relating to sexual assault.

The prosecution of sexual assault raises a host of complex issues that require the nuanced balancing of critical and delicate interests: we must, on the one hand, strive to punish malefactors, and on the other, insure that the innocent are not punished with the guilty. The balancing of those two imperatives is difficult enough in the rape milieu without injecting childish and shrill politicization into the discourse.

False rape accusers should not come forward, eveyone with any sense agrees with that.  But by any measure, justice for DSK should not stop rape victims from coming forward. Those who suggest otherwise are hurting rape victims.

Link to the Motion:

A prominent French intellectual's j'accuse against a nation that accepts lies to justify war, while extra-marital sex is the equivalent of 'national betrayal'

A provocative piece in Le Monde -- a French intellectual tries to comprehend America's twisted sexual values, here:

Excerpt: "The worst consequence of this DSK case is that, if it is confirmed that the complainant didn’t tell the truth, it would disqualify the real victims of rape who will be suspected of lying. Both the media and justice system will come out of this case with their stature reduced, even if the prosecutor Cyrus Vance honestly recognized from July that there were inconsistencies in the alleged victim’s version of events.

"There’s little hope that after the judge dismissed the case, the biggest U.S. press organizations who lynched the former IMF Director before he was judged, would ever apologize.

"To my fellow French who are planning to go to the United States: BE CAREFUL. If you ever want to flirt with an American citizen, male or female, you need to get an official document from them stipulating that you can enjoy their body. We have a lot to learn from our Americans friends, but certainly not the art of loving."

And this: "The US is home to a peculiar phenomenon that never happened in Europe: American feminists have allied with the very conservative American right. These two forces united in the name of different interests to stop what was achieved in the 1960’s and 1970’s in the field of women’s rights. Feminist intellectuals such as Joan Scott, an expert in French-bashing, have become propagandists for the United State State Department. They are in charge of promoting the American way of life. This explains the moral McCarthyism that prevails in American society when it comes to the issue of love, and which has been denounced by the more clear-sighted Americans for a long time.

"It is clearly a furious condemnation of sexual pleasures by criminalizing the heterosexual act. Every man is a rapist, every woman may be a victim. The flattering remark is a first step to harassment, seduction is on the road to rape, gallantry is a euphemism to blur the man’s predatory moves."

Man's claim of rape false, police say

Sadly, we are starting to see more men falsely claim rape. I don't know (hopefully one of our readers can better inform us) if New Zeland has a Compensation scheme such as the U.K. does, and if that is a factor.

A 22 year old vineyard worker called 111 and claimed he had been raped. Police responding found him on the Picton foreshore, drunk, and with a cannabis pipe and a knife.

Blenheim police Constable, Michelle Stagg the Marlborough Express the man would appear in Blenheim District Court today. He is charged with possession of a cannabis pipe, possession of a knife in a public place, breaching the liquor ban, and misuse of a telephone.

Comment: It's interesting that he isn't charged with something akin to filing a false police report.


Thursday, August 25, 2011

Note to Russlyn Ali, assistant secretary for civil rights at the U.S. Department of Education

Paul Elam obtained her email address:

Dear Ms. Ali,

The goal of holding sexual offenders accountable for their misconduct is one that is universally shared by all civilized people. However, and most respectfully, the Department's April 4 directive unacceptably enhances the risk of holding innocent persons responsible for such offenses in furtherance of the objective to hold true offenders accountable.

There is, in fact, no basis to believe that tramping on the rights of the presumptively innocent will cure the problems that some schools have experienced in properly handling claims of sexual harassment. The one has nothing to do with the other. It is both possible and imperative to hold sexual offenders accountable while at the same time insuring that the rights of the presumptively innocent are protected.

Among other things, the April 4 directive requires schools to conduct disciplinary hearings for such alleged offenses using the preponderance of the evidence standard. This mandate unconscionably enhances the risk of holding the innocent responsible for wrongs they did not commit.

It is a hallmark of the American legal tradition, and a universally accepted tenet of our jurisprudence, that it is preferable to let the guilty go free rather than hold innocent persons responsible for wrongs they did not commit.

A student’s interest in obtaining a college degree, with all it entails, is of such weight and gravity, and the damage attendant to a determination that a student committed sexual assault or a similar offense is often so severe, that institutions of higher learning should have the right to decide for themselves whether to impose a standard of proof greater than a mere “preponderance of the evidence.”

Institutions of higher learning also should be permitted to allow the accused or his or her counsel to question the accuser directly. The integrity of the hearing process, and fundamental notions of fairness to the presumptively innocent, demand nothing less.


Anatomy of how a boy's rape lie, and the media's rush to judgment, can turn an innocent life upside down

There is a villain in the false rape milieu who is rarely blamed.

He or she is typically pretty, articulate, and damn scary.

The villain is your local television news journalist reporting on a rape claim, and he or she often does more harm to the accused than the actual rape liar. 

This is an important, and almost entirely overlooked phenomenon that can and needs to be corrected.

A 48-year-old Kentucky man, who had no prior criminal record aside from some traffic tickets, was falsely accused of rape by a 12-year-old boy. The boy had been swimming with two girls and another boy in a lake near their homes when they saw an old, white former police car circling the neighborhood before parking near a wooded area that surrounds the lake.  "I seen the white car keep going up and down the street, like three or four times," said the young accuser.

The man got out of the car, and the boy yelled to his friends "run, run, run."  Apparently the boy's friends took off and left the scene.  The boy described the alleged rape: "He put his hand over my eyes and covered my eyes then drug me to the woods and pushed me into the dirt, then pinned me down," the boy said. The boy claimed that when the man let go of him, the boy turned around and caught a glimpse of his face. That's how he was able to supposedly identify the man.

A television news reporter had the boy tell his frightening story on the air. "This is like my worst nightmare," the boy confided to the entire viewing area.

Police said they linked the man to the crime through a vehicle description and a positive identification by the "victim."  Within hours, before any forensic evidence was collected, and based solely on the word of the boy, the man was arrested and charged with first-degree rape.

The man's attorney said he had an alibi. "Given the opportunity, we had evidence showing exactly where he was at the time this was taking place," he said. "He was ordering a home movie from his telephone number."

A neighbor told a television news reporter that the man seemed to have mental problems. "He runs around the neighborhood and he tells everybody he is a cop, he's not a cop," said the neighbor. "He definitely, by talking to him, he has mental problems."

The man was held for two days before posting bond and was released to house arrest. A television news reporter investigated why the bond was set "fairly low."

A news broadcast showed a reporter banging on the door to the man's home, looking to snag an interview. The man, apparently, had vacated his home.  Neighbors say he moved out and the place is now up for sale. "I don't see him returning to this area anytime soon if he's got a brain in him," said a neighbor in a surly voice.

The boy's mother was outraged by the incident, and by the fact that the man was released. "Honestly, I'm ready to kill the man," she told a television news reporter. "That's the honest truth." She added: "I don't understand how they can sit there and let a sick individual on house arrest when people who do such minor crimes have a hard time getting out." 

The news coverage sloppily referred to the boy as "the victim" on numerous occasions.

The boy was taken to a hospital where a forensic interview was scheduled. A criminologist investigated the scene. It turns out that there was no forensic evidence to back up the boy's claim. Police said the boy's tale wasn't adding up. The boy changed his story, and admitted to police he had lied. “The alleged victim changed his story and admitted to investigators and that incident did not happen,” said a sheriff’s department sargeant.  (A newspaper quoting the sergeant left out the "alleged" before the word "victim.")

The man experienced death threats and said his life was turned upside down; ruined, in fact. It would be difficult to fathom the humiliation this man experienced. He did not even know the boy and had no idea why he was targeted.

The man's attorney had to jump through hoops to have the charge permanently removed from his record. It's not done automatically.

The boy's father told a television news reporter that his son does have a history of exaggerating, but that he still believes the boy is telling the truth. He claims the boy was pressured to change his story. (A television news broadcast reported that latter tidbit, allowing lingering doubt about the man's innocence.)

Police are investigating possible charges against the boy.

Lessons: Iconoclast film director and gadfly Michael Moore, who made the brilliant "Roger & Me," once made a film called "Bowling for Columbine" that explored why Americans are so heavily armed.  You might disagree with Moore's politics, but it's hard to fault the reason he posited: America lives in a culture of fear, largely stirred up by its news media.

It's true. Fear sells. And there's not much scarier than rape.

Fortunately for us, in this case, we have links to various television news reports about the alleged crime that give us a chance to explore how the media treated a claim that turned out to be false. A written description cannot do them justice. They are included among the links, below.

The most important lesson of this case is one we see repeated here over and over: the media coverage, and especially the television media coverage, of alleged rapes feeds our collective inclination to overreact to heinous sex crime accusations. (And by "our," I mean mostly men -- sorry guys, I might be wrong, but that's my observation.)

If we could change just two or three things to bolster the rights of the presumptively innocent persons accused of rape, one would be this: news reporters need to stop reporting rape claims that are under investigation as if a rape certainly occurred. I can't say it more plainly.

Time and time again we see television news reporters doing live reports from the "scene" of an alleged rape in a manner intended to scare more than enlighten. Speaking in ominous, alarmed, and almost urgent tones, they present news of the accusation as if a crime had certainly occurred, and they hide behind the usual "police say the assault occurred here, in this parking lot . . ." to make it sound as if a thorough investigation has arrived at the truth.  In point of fact, in case after case after case where the claims turned out to be false, we learn that the police already had serious doubts about the claim by the time the story aired. Those doubts are never voiced in the news story.

After a scary grabber to their reports, the news reporters interview the "victim" and his or her family to get the gut-wrenching, first-hand recitals of the trauma. Never do reporters challenge the alleged victim's story, and rarely do they explore the minutiae of the story with follow-ups. I suspect TV news reporters spend more time standing on street corners with a microphone in their hands, adjusting their hair and awaiting their cues, than actually investigating the story.

It's show business folks -- actually, more like gonzo demagoguery -- and the joke's on us for thinking it's news. The problem is that it masquerades as "news," and it makes viewers assume they are hearing the truth about a presumptively innocent guy.

Then the reporter tries to interview the accused, and the camera shows an arm and an ominous "knock-knock-knock" on the accused's front door. No one answers. (What purpose does it serve to show the hand knocking?) Since no accused person in his right mind would speak to the media without counsel during an ongoing criminal investigation, the attempt to interview him is more for television drama and to create the appearance that the reporter is being even-handed. It allows the reporter to present just one side of the story without seeming to be biased -- the side that claims a rape occurred, the scary side, the side that gets big ratings. Then the reporter heads off to get a sound byte from a neighbor in the vicinity of the rape, and that almost always involves the neighbor relating how alarmed everyone is to have a rapist in their midst.

If the viewer had been served up the truth instead of a mini-Lifetime movie, the harm to the innocent man would have been much lessened. No, we're not saying the news media should have known the claim was a lie before police did.  But if the newscasts had reported that the claim hinged on the word of one boy, that the accused denied it, and that the police were investigating it -- without the ominous tone, the scare fluff, the knocking on the door, the softball interview with the "victim" and his family -- the viewer would not have been urged to jump to conclusions, and a presumptively innocent man would have received a fair shake.

In the aftermath of the Hofstra false rape debacle, mainstream media reporters held a forum at the school and echoed the sentiments expressed here. WCBS-TV's Jennifer McLogan said journalists should have "proceeded with more caution." Carol D’Auria of 1010 WINS agreed: "We just really need to move slower." She candidly added: “But I don’t see that happening.” The New York Post's Kieran Crowley noted: "I'm a mom with three kids in college; two girls and a boy. I wouldn't want my daughters to be the victim, but I wouldn't want my son railroaded either."  Sadly, our sons, fathers, brothers, husbands, boyfriends, and nephews are being railroaded far too often, and nobody seems to care.


Jocelynn Mackenzie Carter sentenced to eight months jail time

According to Frederick County Commonwealth's Attorney Glenn Williamson, on October 12th (2009 or 2010 we don't know) Jocelynn Mackenzie Carter filed a complaint that she was raped by a Front Royal police officer. She claimed that the officer pulled her over on the 24th of April in 2009, made her get out of the car and then took her to an undisclosed location and raped her.

Comment: She waited either 6 months or a year-and-one-half before she filed the claim. Either way, the officer, J. Lethcoe (assuming the incident was not recorded), would have had no way to prove at that point that he didn't rape her. The passage of time would have eliminated his ability to mount an alibi. As we have seen here many times, without any kind of recording of the officer pulling her over, how would it be possible for him to defend against this?

After a month long investigation in which the officer gave DNA samples and took, and passed, a lie detector test, it was determined that the allegation was false. Carter had alleged that Lethcoe was in uniform driving his official vehicle at the time. Based on this, I would assume there was videotape evidence which showed that the incident never took place.

On July 19th, Carter pleaded guilty to the charge of filing a false police report, and was sentenced to a year in jail, with four months suspended, was ordered to pay a $1,000 fine, and to serve two years unsupervised probation.

The second link below states that Carter told investigators that she told a friend about the rape, but the friend has denied that any such conversation ever took place. She also stated that the officer could be the father of her child, conceived around the time of the reported incident, but the DNA taken ruled out the officer as the father.


Wednesday, August 24, 2011

Not a good reason to risk penalizing the innocent

See the comment under this post -- Scholars oppose Dept. of Education's extremist April 4 directive by Anonymous on Aug 24, 2011 2:35:00 PM.  I responded at 3:01 PM.

Scholars oppose Dept. of Education's extremist April 4 directive

The American Association of University Professors (AAUP), an organization with 47,000 members, sent a letter to the Education Department outlining its concerns over the sexual harassment guidelines in the agency's April 4 directive. The group cited the “preponderance of evidence” standard for proving an instance of harassment. The previous wording for the type of evidence required had been “clear and convincing.”

“Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member’s career, we believe that the ‘clear and convincing’ standard of evidence is more appropriate than the ‘preponderance of evidence’ standard,” the letter says.

Glenn Ricketts of the National Association of Scholars previously condemned the directive here:

These are further indications that the unconscionable dangers to the presumptively innocent posed by the April 4 directive are widely apparent to important voices who do not write about "gender" issues. The April 4 directive represents an extremist position that is simply not consonant with our shared cultural values and the most fundamental notions of our liberty.

We've written about the directive extensively. See, e.g., here.

See and

NOW's reaction to dismissal of charges against DSK signals that it should have no voice in the public discourse on rape

There is a widespread international consensus among objective observers -- observers who do not speak regularly on gender issues and have no axe to grind in the matter -- that the sexual assault charges against Dominique Strauss-Kahn were properly dismissed. That consensus was generated not by any sympathy for Mr. Strauss-Kahn, who is not a sympathetic figure, nor by antipathy for his accuser's gender, race, or ethnicity, but because it is painfully self-evident that the charges simply are not sustainable.  Many thoughtful observers, including Naomi Wolf and a host of serious commentators in the European community, viewed with alarm American law enforcement's zealousness in bringing the charges in the first place.  Whatever Ms. Wolf's other views about men, she's been on the right side of some important false rape issues lately.

But the National Organization for Women has issued a statement condemning the dismissal of charges that is so extreme and discordant with fundamental values cherished by our jurisprudence, and that strays so far from the mainstream of serious and reasoned thought, that NOW has lost any rightful claim to participate in the public discourse about the serious issues relating to sexual assault.

NOW's statement said it "deplore[d]" the decision to dismiss the charges against Strauss-Kahn. The decision was, NOW asserted, a "miscarriage of justice" that "exhibits all the hallmarks of a society that tolerates sexual violence by blaming and shaming the survivors . . . ." Further, NOW "applauds Ms. Diallo for bravely coming forward to tell her story. . . . she stands as an example to all women that we can, with dignity, demand justice for ourselves -- that women who are sexually assaulted need not be perfect in order to be believed."  NOW added: "This case underscores the fact that we still have a long way to go in ending violence against women, and NOW will not rest until we achieve that goal. Ms. Diallo's courage gives us inspiration to hold our heads high and keep striving."  (Contact: Latoya Veal w. 202-628-8669, ext. 116, c. 301-660-3447)

Most troubling about NOW's reaction is the absence of even passing concern for the rights of the presumptively innocent. 

Beyond that, NOW does rape survivors and future rape victims no favors by tying its reputation to a sexual assault accusation that, by common consensus, was highly questionable.

The prosecution of sexual assault raises a host of complex issues that require the nuanced balancing of critical and delicate interests: we must, on the one hand, strive to punish malefactors, and on the other, insure that the innocent are not punished with the guilty. The balancing of those two imperatives is difficult enough in the rape milieu without injecting shrill politicization into the discourse. NOW has proven that its voice on these issues is not one that should be taken seriously. 

Jury clears teenager of sex assault

A SCARBOROUGH man has been cleared of sexually assaulting a teenager who had sneaked out of home to spend a night with friends on the streets of the town.

Jamie Wilson, 19, of Bankside, Eastfield, was also cleared by a jury of a second charge following his trial at York Crown Court, added at the end of the presentation of the evidence against him, of causing, or inciting a child to engage in sexual activity.

Simon Kelley, prosecuting, had alleged that Wilson had kissed the girl against her wishes after meeting up with her and a friend on the night of June 5 last year.

He was alleged to have then invited the girls back to a garage in the back garden of his mother’s home on the pretext of hiding them from the police and others who might be looking for them. Later, in the early hours of the next morning, Mr Wilson was alleged to have assaulted one of the schoolgirls.

The alleged victim, who cannot be identified for legal reasons, told the court that both she and her schoolfriend had sneaked out of their respective homes with the intention of staying out all night, something both girls admitted they had done on several occasions.

The friend, told the jury that she had been afraid that her mother may have found out and reported her missing, Wilson offering to take them to the garage after she tried to hide in bushes so as not to be seen by other people.

Mr Wilson had claimed that he had been out with his brother and friends and had seen the two girls outside a local chip shop.

He told the jury the complainant’s claims that he had tried to ask her to go out with him were false and that he had simply walked home with members of his own group, the girls following them.

On arriving home at around 10pm, he said he had played on an X-Box with his brother and a friend, eaten his meal and then retired to bed in the room he shared with his mother, not leaving the house again before the following morning, adding that he had not seen the girls after arriving home and had never been in the garage, which was kept locked.


Tuesday, August 23, 2011

Calling all law students, retired attorneys

I need your help.

If you have access to Lexis or Westlaw, or even an old fashioned law library, and know how to do relatively simple searches, and if you could spare a few hours, I need to update a list of state statutes on false reporting. Given my schedule, it will take me a long time to get through the 50 states. I suspect that this will require an entire afternoon's work.

If you'd like to help out, I'd gladly keep your name anonymous. You would have (1) the joy of knowing you are contributing to a worthy cause and (2) my undying gratitude.  Write to me at


No punches pulled

Paul Elam on Ellen Gloria Ryan.

Our take on her here.

The Strauss-Kahn case: Have we handed lone rape accusers too much power to destroy the presumptively innocent?

Suite 2806 of the Sofitel Hotel near Times Square will always be known as the place where Dominique Strauss-Kahn, then one of the world’s most powerful men, had a brief sexual encounter with an immigrant maid named Nafissatou Diallo, which led to a spectacularly high profile sexual assault claim. The charges were officially dismissed today, but the damage to Mr. Strauss-Kahn can't be undone.

Even liars can be raped, but rape seems most unlikely here. Diallo repeatedly lied to police, and she possibly lied under oath to a Grand Jury, about matters important to the case. Her moving target account of what transpired was the evolving narrative of a woman groping for victimhood, and her lies may justify false reporting or more serious charges against her.

It also seems clear, beyond question, that the arrest, the disgraceful perp-walk, and the charges brought against Mr. Strauss-Kahn, which could have landed him in prison for more than 25 years, weren’t just premature, they never should have been brought. His treatment by the American law enforcement apparatus was unconscionable by any measure.

And it is also clear that this was yet another in a cavalcade of high profile rape cases blown out of proportion only to implode after an unjust and imprudent rush to judgment. Turning serious charges of criminality into media spectacles, arresting and charging before any serious investigation on the basis of the accuser’s word, is never just, and it does no favors to actual rape victims who might think twice about coming forward when they keep seeing rape cases fall apart.

According to the New York Times, “prosecutors went from characterizing Mr. Strauss-Kahn’s accuser as a credible woman whose account was ‘unwavering’ to one who was ‘persistently, and at times inexplicably, untruthful in describing matters of both great and small significance.’ Because eventually prosecutors could no longer believe her, they wrote, they could not ask a jury to do so.”

"We have no confidence that the complainant would tell the truth on this issue if she were called as a witness at trial," the DA's papers say.  See here.

A sexual assault motivational speaker named Jackson Katz recently wrote that the public was under "the mistaken impression . . . that it's a 'she said, he said' matter.” We now know it was Katz, not the public, who was mistaken. From the beginning, the entire case came down to the credibility of this maid. According to the Times, there was no physical or medical evidence to support a claim of a forcible or nonconsensual attack. At most, “[p]rosecutors said they had accumulated enough evidence to show that Mr. Strauss-Kahn, who was managing director of the International Monetary Fund at the time of his arrest, ‘engaged in a hurried sexual encounter’ with his accuser, a housekeeper at the Sofitel New York. . . . . Because none of the evidence established force or a lack of consent, the motion said, the case would hinge on the testimony of the woman, Nafissatou Diallo.” (Emphasis added.)

When the case first started to unravel, there was a suggestion in the press that Diallo might have had a financial motive. “Diallo discussed the incident with a friend incarcerated in an Arizona jail, and mentioned a possible financial pay-off in pursuing the case. (Diallo's attorney, Kenneth Thompson, has argued the translation of the conversation, which had been conducted in a dialect of Fulani, was not accurate.)” See here.

But that, as it turned out, wasn’t the most serious problem with the case. According to Reuters: “Perhaps most damning of all, prosecutors said, where three separate version of events Diallo told them about her actions immediately after the encounter with Strauss-Kahn . . . . * In version one, under oath before the grand jury, she said she had run down the hall of the hotel's 28th floor where she was found frightened and cowering by her supervisors. * In version two, she told prosecutors that immediately after the encounter, she went to another room to continue her cleaning duties and only encountered her supervisor by chance at the supply closet. * In the third version, Diallo said she went to the other hotel room only briefly to retrieve supplies. ‘These varying accounts also make it difficult to ascertain what actually occurred in the critical time frame,’ when the incident occurred, they wrote.” See here.

So why the rush to judgment against DSK? “[P]rosecutors described an impassioned and tearful Diallo telling them about a previous gang rape in Guinea -- which turned out to have been a lie. ‘That it was told to prosecutors as an intentional falsehood and done in a completely persuasive manner -- identical to the manner in which she recounted the encounter with the defendant -- is also highly significant,’ they wrote. ‘But most significant is her ability to recount that fiction as fact with complete conviction.’" See here.

Diallo’s acting ability was enough to destroy Strauss-Kahn. Newsweek quoted the spokesman for the New York City Police Department who said, "in his best authoritative voice, 'Experienced detectives found the complainant’s story to be credible . . . .” The New York Daily News opined: “Given the number of experienced investigators who believed Diallo's utterances, including her since-abandoned tale of having been gang-raped in Africa, she is a hell of a storyteller, one for whom getting caught in falsehood is but an occasion to spin anew.”

On her word alone, Mr. Strauss-Kahn was arrested, photographed naked by police, initially denied bail, held in solitary confinement, and subjected to a most humiliating "perp walk" to satisfy amoral media types, much to the horror of our European brethren who thought it all barbaric. The Police Commissioner made sure to boast to the press that Strauss-Kahn was strip-searched multiple times a day.

When the case started to fall apart, Diallo did what all great actors do to boost failing shows, she went on a media blitz. A reporter for the New Post said she “change[d] the subject.” She made it “about race.” Diallo’s lawyer said: "If it wasn't for race, if it wasn't for class, do you think [Diallo] would be treated this way?" Leaders from the black community and feminist groups publicly backed Diallo—scrapping all the lessons from Duke lacrosse about the dangers of mixing a serious criminal investigation and group identity politics.

Diallo’s media blitz implied that law enforcement--specifically, the people who unnecessarily photographed Mr. Strauss-Kahn naked, denied him bail, held him in solitary confinement, subjected him to a most humiliating "perp walk," boasted to the press how he was strip-searched multiple times a day, and, in essence, forced him to step down from one of the globe’s most important jobs--that law enforcement--wasn't taking her claim seriously. It was as dishonest as it was absurd.

Prof. Alan Dershowitz just shook his head. "The story," he wrote, "is almost never what it appears to be on first impression." Too often, he noted, cops in sex units "are . . . agenda driven. Too often they believe they’re on a mission . . . . They’re zealots; I call them Nancy Grace prosecutors. She behaves on her TV talk show as if there’s no such thing as innocence; everybody arrested is guilty." In a line that sums up the entire debacle, Dershowitz added: "They shouldn’t have presumed him guilty from the beginning."

Feminist Naomi Wolf found it all “profoundly worrisome.” She added: "Whatever happened in that hotel room, Strauss-Kahn’s career, and his presumption of innocence, was effectively over — before any legal process had even begun."

Noted attorney Roy Black put the case in larger perspective: “For decades, there has been a unique, growing disparity between the way we treat accused rapists and their accusers. It's grown because of a relentless pressure to manipulate the rules to increase arrests and convictions in rape cases. The protections against false accusations have been whittled away one by one to make it easier to charge and easier to convict, with the unintended consequence of making it easier to make a false accusation.”

But Susan Brownmiller, for one, would have none of it. She engaged in a sort of prejudgment by gender. "I believe her story," Brownmiller declared. Brownmiller’s proof? "Rape victims remember some facts vividly," she asserted, "but often get confused about exact timelines." As it turned out, timelines had nothing to do with the problems in this case. It came down to the simple fact that Diallo’s claim didn’t ring true. Brownmiller didn’t bother to note that rape liars also often posit narratives that are a hodgepodge of clarity, confusion, and vagueness. See, e.g., J. Savino, B. Turvey, Rape Investigation Handbook, at 286-87 (2d ed. 2011).

Ironically, the “perp walk” turned this man who just might have committed sexual assault into a martyr in France. "We're not used to those images. It was very violent for us, the handcuffs, his face when he emerged from prison after not sleeping," said a French journalist. "’He became a sort of martyr, said Laëtitia Lecomte, 26, of Paris, as she sipped a beer with her friend at a trendy Paris café.” See here.  

In the end, there were no winners. DSK has been unjustly destroyed. Diallo will be forever seen as a liar in many quarters. The New York law enforcement apparatus got it right, but only after it unnecessarily destroyed DSK. Actual rape victims saw yet another high profile rape case implode.

Since rape cases are too often handled as irresponsibly as this one was (remember Hofstra?), the question becomes this: have we handed too much power to lone accusers to destroy innocent men and boys? Is bringing charges based on a rape accuser’s acting abilities, or the fact that she’s a sympathetic figure, justice in any sense of the word?

The lesson is the same one that runs throughout so many of the cases we report on this blog: as a people, we seem to be hard-wired with a perverse inclination to rush to judgment when it comes to heinous sex accusations. Too often, that rush to judgment turns out to be wrong. As a society, we permit the reputations of persons falsely accused of sex crimes to be destroyed by even baseless accusations of a lone accuser; we permit the presumptively innocent, who too often turn out to be falsely accused, to be arrested and jailed on even far-fetched claims, with bail set sufficiently high to insure they won't be released before trial; and we excuse false accusers with little or no punishment, inviting others to falsely accuse with impunity and without deterrent.

We always hope that a case like this will be a wake-up call, but history tells us that's not likely.