In A Nutshell
Early in the morning of Sunday, September 13, 2009, Danmell Ndonye (pronounced en-DAHN'-yeh), then an 18-year-old Hofstra University student, lied about being gang raped in a Hofstra dormitory bathroom, causing four young non-white men ranging in age from 19 to 21 to be arrested by Nassau County police and held in custody for almost four days. Another young man, a high school senior, was about to be arrested at the time the false accuser recanted.
Jesus Ortiz and Stalin Felipe, both of the Bronx, Kevin Taveras of Brentwood, New York, and Hofstra student Rondell Bedward, were charged with five counts of rape in the first degree. Their bail was set at $500,000 bond or $350,000 cash, effectively insuring they wouldn't be freed until trial or until the charges were dropped. They each faced up to 25 years in prison if convicted.
Newspaper reports treated the naked allegation as a proven rape, with scary lock-the-doors-and-hide-the-daughters headlines. Mugshots of the four frightened young men were plastered across the pages of some of America's leading dailies. Television news reported the story with a frantic tone that left little doubt that a terrible rape had definitely, absolutely, certainly occurred.
The only falsely accused young man who was a student at Hofstra was immediately suspended and banned from campus. Another of the young man was immediately fired from his job. The men received death threats. Jail guards badgered, pushed and shoved at least one of the men. The men's families were harassed.
The reason the false accuser recanted was because she learned that one of the young men had videotaped the sordid event. But even when it was revealed that the claim was a lie, progressive pundits insisted "we'll never know what really happened" even though we do know what happened. Chivalrous men said the falsely accused men got the good scare they deserved.
Professor KC Johnson, the guru of the Duke Lacrosse false rape case, said that the Hofstra sexual assault claim was "equally spectacular" to the claim at Duke. Yet, while entire books have been devoted to the Duke case, the claim at Hofstra received relatively little analysis after it was no longer "news." Perhaps this is because the suspects were non-white and the criminal charges were not motivated by a corrupt district attorney or the sort of runaway race and gender political correctness that marked the Duke case.
But the fact that there was no corrupt district attorney in the Hofstra case makes the terrible things that happened to four innocent young men all the more alarming because what happened to them was "business as usual" in a culture that has fogotten Blackstone's formulation.If the system worked "the way it should," there is something terribly wrong with the society that designed it.
Hofstra holds innumerable lessons, and to properly focus attention on them, the story needs to be told in its entirety.
The False Claim
On Saturday, September 12, 2009, Rondell Bedward, 21, a Hofstra student, invited his friends, Messrs. Felipe, Taveras, and Ortiz, to attend an Alpha Kappa Alpha sorority mixer at a campus club called Hofstra USA.
Ndonye, the putative victim, claimed she was dancing when she was approached by one of the young men, Jesus Ortiz. Ndonye claimed that Mr. Ortiz snatched her cell phone from her waist and left the building with it.
Ndonye allegedly followed Ortiz and his friends out of the building and over to her dorm, Estabrook Hall, where she and the men rode the elevator up to the eleventh floor. Mr. Felipe allegedly made advances on her, which she says she resisted. She claims one of the young men lured her to a dormitory bathroom. Once inside, the men allegedly tied her to a stall with a rope, and then took turns raping her. Mr. Bedward was the only one of the five men who did not rape her, Ndonye said.
In the course of the subsequent police investigation, the infamous rope was not found, but police did find used condoms from the encounter. The "rapists" apparently knew enough to cover their tracks by stashing the rope, but inexplicably left behind the most telling evidence that sexual contact occurred.
After the encounter ended, Ndonye said the "rapists" asked her to come with them. She refused. Detective Lt. John Allen, investigating the claim, apparently didn't think such a request was in any sense inconsistent with a vicious gang rape. He chalked it up as the brazen act of predators: they "actually had the audacity to ask her if she wanted to go with them," he declared, not acknowledging the obvious truth that this would be strange behavior for rapists.
Ndonye's tale was a modern day Chicken Little fable, an urban campfire story about goblins with non-Caucasian penises. It raised a lump in the throats of parents with daughters enrolled at Hofstra, and it rattled students on campus. Young women warily looked over their shoulders at the young men around them.
The only problem was, the story wasn't true. There was no rape. There was no rope. The information that subsequently came to light revealed that it was Ndonye herself who initiated a round of raunchy, consensual group sex, then lied about it. The reality was the exact opposite of the terrifying story being repeated as fact by police, the news media, and an uncritical public: the men everyone assumed to be the criminals were the victims, and the woman everyone assumed to be the victim was the criminal.
Here's what really happened: Ndonye and her boyfriend had been dancing together at the mixer but got separated when a fight broke out. For reasons not known, Ndonye started dancing with Mr. Ortiz. They began to make out, and she said to him, "Do you want to come back to my dorm?"
Ortiz said: "I have friends here with me."
"Bring 'em along," Ndonye said. "It'll be hot."
They proceeded up to the dorm bathroom where the romp occurred. One of the young men, Stalin Felipe, said to her: "Are you sure about this?"
Ndonye told him it was OK: "Yeah, sure, I want to."
Some of the young men used condoms as they began to have sex.
Ndonye's phone rang seven to eight times during the wild tryst. It was her boyfriend trying to find her. The young men asked her why she didn't answer the phone, but she said it was OK.
Ndonye's boyfriend, worried that he couldn’t reach her, went to her seventh-floor dorm room at Estabrook Hall. She wasn't there. He explained what happened next:
"As I was about to leave, she comes up and she has no shoes on, she is holding them in her hands. She looked like she just finished hot sex. I said, 'Where were you? What were you doing?' She told me, 'Nothing.' I said, 'What do you mean, nothing?' I said, 'Don't lie to me, what's going on?' And she said, 'Oh, I just got raped.'"
The boyfriend was confused: "It didn't seem real to me. She was calm. Then she started crying and saying, 'I was raped.' She lied to me. I think she was embarrassed. I said to her, 'You have to call public safety.' She hesitated. It seemed like she didn't want to."
Then she tried to backpedal. "Oh, you know, no, it's OK," she told him.
He was incredulous. "How could it be OK that you just got raped?" he asked.
Ndonye reported the supposed rape, and four of the five men were quickly arrested on Sunday, September 13.
The four young men had no prior records. One of them was an employee of Cablevision. Another was enrolled at Hofstra. Their versions about what happened in the bathroom were consistent.
It was the word of four respectable young men versus one rape accuser.
The police believed her.
The young men were subjected to a terrible ordeal. After they were arrested, bail was set sufficiently high to insure they wouldn't get out.
One of the young men said he was treated like an animal.
One said he felt the arresting officers and investigators were "on her side."
Publicly branded as rapists, the young men were treated as if they were, as one of them put it, "disgusting men." They were hounded as the lowest type of criminal in jail, and they feared for their lives.
"They were harassing me more than anybody else, just because of what I was in there for," one of them said. "[The guards] were badgering me. They would push me and shove me. I thought I was dreaming. The worst part was hearing that I could do 25 years. I'm not even 25 years old. I'm just 19."
One of the young men was forced to ask for protective custody because "the inmates were referring to him as the rapist," said his lawyer.
At least one of the young men received a death threat through his lawyer. "I got a call from a blocked number saying I should keep my f- - -ing client off the campus. He's a dead man," said the lawyer.
The young man who worked as a dispatcher for Cablevision was fired (to its credit, Cablevision reinstated him when the truth came out).
Rondell Bedward, the lone Hofstra student among the falsely accused men, was immediately suspended and banned from campus, on the say-so the lone accuser.
Once the lie was told, it took on a life of its own, and events unfolded with dizzying rapidity. Ndonye quickly discovered that she couldn't control her own story short of recanting.
The lives of four young men were altered forever, all because an 18-year-old woman cried “rape," and pretty much everyone assumed the claim was true.
If the police had to invent a witness to build a rape case around, they probably would have constructed Danmell Ndonye.
"The girl was genius-like. She wanted to be a physicist," said a neighbor. "She's quiet -- she doesn't say two words. She's a nice, innocent, well-bred, shy girl."
Another neighbor said her granddaughter used to play with Ndonye when they were children. "This kid is brilliant, scary brilliant. I think she wanted to pursue medicine. This child would read The New York Times when she was 3. I mean, she is a prodigy," she said. "This child has such an intact mother and father. It's a devout family -- structured."
She was the model witness. The only problem was, her claim was a lie.
On Monday morning, aside from suspending Mr. Bedward and banning him from campus, Hofstra University Relations issued a statement: “We are saddened and deeply distressed by these allegations of horrific crimes perpetrated against a member of our community. Acts of sexual violence are not tolerated on our campus.”
Stay tuned for Hofstra's reaction following Ndonye’s recantation.
All The News That’s Fit To Fear
The news media slipped into hysterical overdrive mode. Journalists treated the alleged attack as an undeniable rape.
Journalists at the New York Post became little more than stenographers for police, and police weren't telling anyone about the weaknesses in their case. The headline for one of its stories on the alleged rape read as follows: "Nightmare gang rape at Hofstra." The first two sentences left little doubt for readers that a rape certainly occurred: "An 18-year-old Hofstra University co-ed was gang-raped by five men on campus, cops said last night. The shocking attack took place Sunday at around 3 a.m."
On September 16th, the day that Ndonye's story would unravel, the New York Post ran a comment by Kieran Crowley with this headline: "Hofsta rape case. Fiends lured co-ed to attack: cops." Here is the first sentence of that story: "They were 'predators' and she was their prey."
In the court of public opinion, the trial was over even before it had begun, because the news media declared that the men were rapists.
The television news media was even better equipped to foment good old fashioned rape hysteria. TV reporters described the supposed event with a frightening gravitas. The transcript of one particular chilling news report (set forth below in its entirety) underscores the rush to judgment that marked the entire affair. Not only did the reporter parrot what police told her, she did not make it clear that the evidence for the alleged rape was a "he said, she said" claim with no other evidence to support it. Nor did she bother to explain that the four young men told consistent stories, which contradicted the accuser's tale. Nor did she bother to point out the holes in Ndonye's narrative. The four young men were identified, and the accuser was not. As you read the transcript, note that virtually every sentence uttered turned out to be grossly incorrect:
BONNY GHOSH, ASSOCIATE PRESS: She was tied up in a men's bathroom stall where five men, one by one, would rape her.
CHIEF STEVEN SKRYNECKI, NASSAU CO. POLICE DEPT: It's possible that her cries were not heard.
BONNY GHOSH, ASSOCIATE PRESS: An 18-year-old Hofstra student recounted her traumatic ordeal to police. It all happened Sunday around 3 a.m. The student first met one of her attackers, Jesus Ortiz, at a dance held on the Hofstra campus. Police say Ortiz snatched her cell phone as a way of getting the girl to go back to a dorm with him.
CHIEF STEVEN SKRYNECKI, NASSAU CO. POLICE DEPT: We believe he lured her into a dormitory, ah, for purposes of engaging in sexual activities with her.
BONNY GHOSH, ASSOCIATE PRESS: Trying to get her phone back, the girl followed Ortiz back to a dorm close by. That's where her attackers were waiting with the rope ready to tie her down and rape her.
CHIEF STEVEN SKRYNECKI, NASSAU CO. POLICE DEPT: Ultimately pushed her into a stall within the bathroom, bound her within the stall, and then began to have sex with her.
BONNY GHOSH, ASSOCIATE PRESS: At that point, three other men showed up. Seeing them, she was relieved, at first. She pleaded for help. But then she soon realized they were there to rape her, too. Now, four of the men are charged with five counts of rape. Police are still looking for a fifth man. Only one of the men actually attended Hofstra, but regardless, students on campus are horrified by the incident.
VERONICA DESOUZA (STUDENT): Someone takes your cell phone and you want it back. I mean, she didn't know that she was going to be tied up and and raped in a bathroom.
DOUG TEMPLE (STUDENT): It happened ah right below us, actually. It was kind of, freaked me out.
LINDSAY DWYER (STUDENT): Its just a horrible thing to hear about somebody. Especially, she was a freshman, like, your second week of school, like, it's just, it's horrible.
BONNY GHOSH, ASSOCIATE PRESS: Those who knew the student Rondell Bedward are especially stunned.
VICTORIA LIRO (STUDENT): He's been in, like, my room with me, you know I, it's crazy. That's scary.
BONNY GHOSH, ASSOCIATE PRESS: The four men arrested all pleaded not guilty and are each being held on a $500,000 bond. If convicted, all face up to 25 years in prison. In Hempstead, New York, Bonny Ghosh, the Associated Press.
Now, imagine if that story had made it clear that the only evidence for the alleged rape was the word of the young accuser, and that the four arrested men told consistent stories that no rape occurred. Imagine further if Ms. Ghosh had pointed out that no one on the floor heard anything, when typically, everyday sounds presumably far less tumultuous than a vicious gang rape are heard on the floor. Imagine further if Ms. Ghosh had revealed that the alleged rope that supposedly tied the woman up was not found at the scene, but that used condoms were. And imagine if Ms. Ghosh had pointed out that even the accuser admitted that the alleged rapists asked her to come with them after the alleged rape.
In short, imagine if Ms. Ghosh, the New York Post, and everyone else had reported the facts in a complete, fair, and objective manner instead of doing the journalistic equivalent of jumping out of the bushes and yelling "boo."
But the student news editor of the Hofstra Chonicle knew there was something wrong: "[H]er story didn’t make sense. Nothing about the story made any sense.. . . . [T]he Nassau County Police and Hofstra’s story made absolutely zero sense . . . ."
The Evolving Narrative of a Woman Groping For Victimhood
But then, on September 14, deus ex machina, the fifth suspect, the one not arrested, Arvin Rivera, an 18-year-old senior at Harry S. Truman High School in The Bronx, contacted prosecutors through his lawyer and said he had videotaped the sex romp with his cellphone.
The video showed the sex was consensual. "It looks more like a porn movie," said the attorney for another one of the young men. "It showed just the opposite of what the allegations were. There was no tying up, there was no bruising, there was no screaming."
Despite this revelation, the young men were still held in custody. For reasons not clear, law enforcement did not see the video that day. Even without the video in its possession, by Wednesday, September 16, it became obvious to police that all of the irregularities they had known about since the case broke didn't add up.
The more Ndonye talked, the more her story changed. Details were added, details were omitted, and the model witness was looking to be anything but reliable. Her tale was the evolving narrative of a woman groping for victimhood.
Prosecutors were perplexed about several things. They wondered why none of the students living on the floor where the incident supposedly occurred heard any commotion whatsoever that night, when usually they could hear the sound of the most mundane of activities.
They also wondered why the accused rapists would have taken the time to dispose of the infamous rope the woman said they used to tie her to a bathroom stall, but carelessly left used condoms to litter the bathroom floor. If a "rapist" wanted to dispose of evidence of his crime, wouldn't he likely ditch the residue of his ejaculation?
They also wondered why the "rapists" asked their "victim" to come with them when the encounter ended, as Ndonye admitted. Remember, a detective previously had chalked up that request to "audacity." But now, police were beginning to think that this was the kind of request that doesn't make sense in the aftermath of a vicious gang rape.
Saved By High Tech
Prosecutors decided it was time to reveal to Ndonye the possible existence of the video. The moment they did, her story collapsed under the weight of her prevarications and the truth came cascading out. Madeline Singas, the county’s chief sex crimes prosecutor, said to her: "If there is a video, and I get that video, it’s going to show me that what you’re saying is true?" Ndonye sat silent for several long moments, Singas said. Then Ndonye admitted that sex with the young men had been consensual. She made up the twisted tale because she didn't want her schoolmates -- particularly her new boyfriend -- to think she was "easy."
Like something out of Hollywood, Singas said she rushed from the interrogation room and picked up the phone to stop a detective who was headed to get a warrant signed to obtain evidence in the case, and then to arrest the fifth man, the high school student who took the video. "Once she recanted, we had to stop everything," Singas said.
Prosecutors soon confirmed the woman’s admission that the sex was consensual. Within hours, charges against Messrs. Bedward, Felipe, Ortiz, and Taveras were dropped, and they were released from jail late that night, Wednesday, the 16th.
Ndonye went into hiding.
"[Arvin Rivera] saved us. He was our messiah," Felipe Stalin said. "If he hadn't had that [video], she would have continued with no remorse and I would be released from jail when I am 44 years old for something I didn't do." But he added: "If [Ndonye] didn't know there was a video out there, she wouldn't have cared. She would have let us rot in jail."
A corrections officer in the jail told one of the young men that in 24 years working at the jail he'd never seen anything like the reversal of fortunes that freed the four accused men.
Prosecutors later learned of more evidence about the early morning hours of Sept. 13 -- including a second set of still images recovered from the phone of one of the men involved in the encounter. The images depicted similarly consensual portions of the encounter.
In addition, prosecutors obtained security video from Hofstra that prosecutors said contradicted many aspects of Ndonye's original statements to police.
Even though the case had a relatively "happy ending," the most important question has never been answered: why did police arrest, jail, and allow to be vilified four young men before they bothered to thoroughly investigate a claim that was so terribly flimsy? Was it just because the accuser seemed like a "model witness"?
"I think they should have gathered more evidence . . . looked at camera footage and tried to match up times and things like that before throwing us in and letting the wolves get us," said one of the exonerated men.
The D.A.'s Reaction: Thank Goodness There Was No Crime
Nassau DA Kathleen Rice made an announcement that the charges were dropped. It was just two sentences in length but even then, it somehow managed to botch the truth: "The young woman admitted that all of the encounters with the young men were consensual. A crime did not happen last Sunday at Hofstra."
But a crime did happen, Ms. Rice. Ms.Ndonye made a false police report that could have destroyed the lives of five innocent young men.
Even after the recantation, at first, the Nassau District Attorney's office refused to release Ndonye's name. The district attorney said: "Her actions and her demeanor depict a very troubled young woman in need of much help."
Prosecutors justified Ndonye's anonymity by noting that they feared for her safety.
Never mind the safety of the innocent men whose photographs were splashed all over New York's daily papers and whose lives were allowed to be put in harm’s way. Never mind the safety of the innocent man who said he was harassed even by employees of the jail who were supposed to keep him safe.To their credit, the prosecutors later released Ndonye's name, but the delay was unpardonable.
The News Media's Reaction: Nothing To See Here
The Associated Press's television news report about Ndonye's recantation was much shorter and lacked the over-the-top, Chicken Little drama of its initial report that a rape most assuredly, definitely, certainly, and without question had occurred. It was delivered in the hurried, matter-of-fact style of news reports that the news team knows won't be of much interest to viewers. Presumably, rapists are scary; false rape claims are only scary to the people, and their families, who’ve been falsely accused.
Consistent with its treatment of the Duke Lacrosse false accuser, The New York Times article covering the recantation shielded Ndonye’s name. Yet it made sure to include the names and ages of the four men she falsely accused. This fact didn't escape the notice of Professor KC Johnson, guru of the Duke Lacrosse case:
"In the one non-AP article the Times thus far has seen fit to run (on the dismissal of the charges), reporter Anahad O’Connor did not reveal the name of the false accuser, Danmell Ndonye, while he did mention the names and ages of the four people Ndonye had falsely accused. I e-mailed O’Connor to ask about his rationale for this decision; he did not reply. But he did reply, through the Times automated e-mail system, to a DIW reader. His explanation: 'The reason the article did not contain the accuser’s name is really quite simple. [Note in the e-mail, O’Connor still declines to use Ndonye’s name.] At the time the article was published, the authorities had yet to release it. It only came out at a later time. If you’re upset, you should direct your outrage at the district attorney’s office.' This explanation of what passes for Times journalism is an intriguing one. Perhaps the Times should change its motto from 'All the News That’s Fit to Print' to 'All the News Government Officials Have Seen Fit to Supply.'"
Hofstra suspended Ndonye and reinstated Rondell Bedward, the only Hofstra student among those arrested. The university said it would assist him in returning to campus, including living in a different dormitory if he so chose.
Melissa Connolly, vice president for university relations, a rare voice of sanity in this affair, said that everyone was just thankful it was over. “I actually started crying. It was partially relief and partially sadness that four young men had to go through this; that a member of our campus would do this to another member of our campus….” In addition: "I think in some ways the announcement last night was as heartbreaking as finding out or thinking that the incident had occurred originally. Again, a student did something that hurt another student."
Amen, Ms. Connolly.
The news editor of the Hofstra Chronicle wrote: "My God, what type of person not only belittles the seriousness of rape and consciously destroys the reputations of a school and four young men at the same time."
But Hofstra’s official reaction was different. Did Hofstra issue a statement similar to the one it issued when it assumed a vicious rape had been committed on campus? Such a statement should have read like this: “We are saddened and deeply distressed by these allegations of horrific crimes perpetrated against a member of our community and his guests. Lying about matters so serious are not tolerated on our campus.”
But, of course, no such statement was ever issued. Instead, Hofstra president Stuart Rabinowitz issued a statement that, while couched in generic terms, seemed intent on assuring parents and alumni that the school would vigilantly guard not against lies that destroy other students, especially rape lies, but against an entirely different crime -- rape:
"We will redouble our educational efforts and try to increase awareness among students, faculty, and staff of any potential signs of danger or dangerous behavior, and the need to pass that information on to Public Safety so that it can be adequately and appropriately addressed . . . I will be appointing a Presidential Task Force under the direction of the Vice President for Student Affairs and the Vice President for Facilities and Operations and consisting of representatives from students, faculty and administrators, to undertake a review of all aspects of security, including operations, communications, programs, policies and procedures to insure that we are taking every possible precaution to maintain a secure and safe campus. In addition, we will once again be seeking to utilize the services of an outside consultant to conduct a security audit and make recommendations as to best practices and possible enhancements to our program."
Professor KC Johnson recognized this statement for what it was, and what it wasn’t: "[T]he issue in this case was a Hofstra student making up a false rape claim. How would a security audit address that issue—will Hofstra security officers increase campus patrols, on the lookout for women who make false rape claims in their midst?"
The Decision Not To Prosecute
Finally, Nassau County District Attorney Kathleen Rice announced her decision: she would not charge Ndonye. But she did release Ndonye's name, nine days after the recantation. Moreover, on September 25, Ndonye signed off on a "Deferred Prosecution Agreement" in which she admitted, under oath, that she was not raped, sexually assaulted, or sexually abused. Further, she admitted that her rape claim had been a false statement.
In exchange for not facing a misdemeanor charge, Ndonye agreed to pay for and undergo one year's worth of psychiatric counseling and to do 250 hours of community service.
Rice said the agreement was far more than prosecutors could have expected if Ndonye had been prosecuted.
More troubling was that Rice justified her decision not to prosecute on the ground of avoiding a "chilling effect," making actual victims fearful to come forward: "There exists no perfect solution to this case," she said in a statement, "only our best attempt at holding her accountable while encouraging real victims to come forward and accusers to tell the truth, so that we can avoid incarcerating an innocent person for even one minute."
Lois Schwaeber, director of legal services for the Nassau County Coalition Against Domestic Violence, said prosecuting someone who has made a false report will discourage real rape victims from coming forward.
There is, of course, no objectively verifiable evidence for Ms. Schwaeber's assertion. More important, since when did society start combating serious criminality by ignoring other serious criminality?
Rice timed her decision so that it would hit the Saturday newspapers. Criminal defense blog Simple Justice explained: "Timing is key to the success of this maneuver. By Monday, when people get back to paying attention to the news, this will be an old story. The Saturday paper is the least read paper of the week. Over the weekend, nobody will know. By Monday, nobody will care."
Newsday properly dismissed Rice's concern about a "chilling effect": "That concern is misplaced. . . . Historically, police and prosecutors have been hostile to women who made rape charges, but the consensus now in law enforcement is that these cases should be fully and aggressively prosecuted."
The next part of Newsday's analsis is brilliant: "For legitimate claims to be taken seriously, however, society must also know that phony ones will be punished. That's what will make the voice of every true victim even stronger." It undermines confidence in the way rape is treated by law enforcement when the innocent are permitted to suffer. Juries are all the more wary about convicting for rape even where compelling evidence suggests they should.
Bronx attorney Victor Daly-Rivera, who represented one of the young men, summed it up with a real world analogy: "We feel that the law was broken and she should be made to answer for that. People are prosecuted all the time for filing false insurance claims and things like that . . . When you compare that to accusing four men of rape, it sort of pales by comparison."
The step-mother of one of the young men agreed: "He still gets flashbacks," she said. "It's not fair. She has to pay for that. All the family got hurt because of her."
Ellis Hennican of Newsday said: "Is New York law really that weak? A person can accuse another of a horrible felony without facing any serious charge? Maybe that's where this discussion should turn next."
But Bruce Barket, a Garden City attorney hired to represent Ndonye, made perhaps the most outrageous statement of the entire affair when he talked about the decision not to prosecute: "They took a very, very difficult situation, and we were able to fashion a reasonable and quick resolution that I think satisfies everybody's concern. It was a very difficult time for everybody involved . . . ."
Was it really "a very difficult time for everybody involved," Mr. Barket? Including your client? Or was she the author of her own "difficulties," not to mention the unfathomable terror to which she subjected five innocent men and their loved ones?
Implications of Not Charging Ndonye
For every crime aside from false reporting of rape, society recognizes the crucial importance of deterrence. Our sentencing laws are statutory articulations of the degree to which society disapproves of various forms of misconduct. The more severe the punishment, the more serious the disapproval. Rice's decision not to prosecute sent an unmistakable signal that, as Newsday explained, "risks creating the perception that there isn't much downside to making up a story that could have sent someone to jail for 25 years." Simple Justice summed it up: "It does . . . have a strong connection to encouraging false accusations, since the conditions of counseling and community services offer little disincentive to not take the risk."
Rice's decision, in effect, announced to the world that false rape claims would be tolerated in the interest of fighting the war on rape. Professor KC Johnson wrote this: "This was about as obvious a case of filing false charges as possible: a videotape showed that Ndonye had lied, and Ndonye admitted that she had lied. Yet even in this sort of case, where Ndonye's word and Ndonye's word alone could have sent innocent people to jail for decades, the maximum punishment she could have received was a slap on the wrist. . . . . there's something out of balance in this sort of arrangement."
The fact is, Rice probably was right that Ndonye's agreement was more than she would have gotten if the matter had proceeded to trial. The lenient statutory laws of New York treated this sort of misconduct as practically non-criminal. Any of the crimes she might have been charged with were misdemeanors, which, because of her age, would have carried a maximum jail sentence of 6 months. In practice, people like Ndonye who do not have prior criminal records almost never serve jail time upon conviction of misdemeanors.
The decision not to prosecute Ndonye became a campaign issue. Joy Watson, a former Nassau County prosecutor who once headed the county's sex-crime prosecutions and who hoped to unseat Rice in the upcoming election, said the seriousness of the accusation and the impact on the accused men warranted a criminal prosecution.
"A crime was committed, and there's no question who committed the crime . . . I prosecuted cases in the past where we had false allegations made, and arrests were made immediately," Watson said.
Rice's spokesman, Eric Phillips offered a rebuttal to Ms. Watson. The district attorney, he exclaimed, "doesn't make snap judgments or let political expedience replace diligent fact-finding in investigations . . . ."
Mr. Phillips continued: ". . . it's disturbing to hear that a candidate without the facts running for such a serious office would attempt to politicize and score political points on an issue like this."
Rice won the November election handily.
Hofstra Students Are Conflicted
Most Hofstra students interviewed were sympathetic to the young men. The rape report "just really gave the university a bad name," said Dani Frank, a print journalism major. "I really wish there hadn't been conclusions jumped to because it put the boys in a negative light, it put Hofstra in a negative light, and people will give her a lot less credibility in the future."
"Her false accusations hurt a lot of people," said student Zach Parker. "Yes, it hurt the gentlemen who spent time it jail. It hurt the university. It hurt the university's reputation and it hurt Nassau County financially."
Other students didn't care for what Ndonye did, but didn't think it was a crime. Freshman Amelia Yu said: "I'm not sure she should be charged with a crime . . . ."
Freshman India Nelson chimed in: "There's definitely an apology that needs to be in there. But a crime? Probably not."
Despite the crystal clarity of the undisputed facts -- Ndonye told a vile rape lie that wrongly caused four young men to be arrested -- some students were confused about what to think. Elisha Stavropoulos, for one, said this: "I'm really, like, stuck on what to believe and, I don't know. Now I feel more confused." Another student, Peter Duffy, said this: "Who knows what really happened with her and everything? So, I don't know. I really don't know what to think now."
In the face of video evidence proving consent, the evidence showing the accuser's tale didn't add up, and the accuser's sworn recantation of her rape claim, the fact that members of an uncritical public still say they don't know what happened at Hofstra is proof of one thing: rape lies are essentially impossible to undo.
'Rape Culture Made Her Do It'
Amanda Hess of the Washington City Paper's Sexist blog wrote: "I can't recall how many times I've seen a discussion of a rape accusation devolve into the one side arguing why the accuser should be believed, and the other side arguing that the accuser should be discredited. . . . .The meaningless squabbles between the two camps tend to overlook the fact that people concerned about rape and people concerned about fake rape accusations are both fighting against the same thing: rape culture."
"Both rape and rape accusations are products of the roles assigned by rape culture. In the traditional seduction scenario, a woman is expected to not desire to have sex, and to only submit after the man has successfully coerced her into submission. When the preferred model for consensual sex looks a hell of a lot like rape, an array of fucked-up scenarios are inevitable: the woman never wanted to fuck the guy, refuses to submit, and is raped; the woman submits to the man's coercion in order to avoid other negative consequences (like being raped); the woman had desired the sex all along, but must defend her femininity by saying that she had been coerced into sex."
Ms. Hess makes an astute point. A great many "false rape" claims are lodged by women "defending their femininity." But that truism doesn't really explain this case. Ndonye's boyfriend was trying to call her at the very moment she was urging four strangers to insert their penises into her. Ndonye wasn't "defending her femininity" when she lied about this particular consensual romp, she was covering up for cheating on her boyfriend in a very nasty way. Ndonye can't hide behind cultural constructs to explain her grotesque lie.
Cheating lovers of both genders feel regret and don't want to be caught. One of the falsely accused young men in this case was greatly concerned about the need to explain to his girlfriend what he was doing in that bathroom. "I put her through hell," he said. "It's going to be hard to get through this."
A comment under a story at Huffington Post excused Ndonye's misconduct and trivialized the harm to the innocent young men:
"I try not to judge people, so I see this as a case of a woman getting a bit freaky and then having regrets. It happens, and it's unfortunate she chose to go the route she did afterwards without fully thinking about the ramifications of the accusations. It seems she felt it was the only option she could take in order to avoid being negatively talked about or judged. Lessons to be learned all around...the young woman, the dudes, and likely police department professionalism."
Declaring that there were "lessons to be learned" sounds like the denouement of an episode of The Brady Bunch as opposed to a case where five innocent lives were nearly destroyed. And note that among those who should learn a "lesson" from this affair are "the dudes." Can't ever leave "the dudes" out if we're passing blame around, even though, in this case, "the dudes" were the victims. In other contexts, that would be called "victim blaming."
A special mention is warranted for a writer named Deborrah Cooper whose take on the case was so over-the-top, it was a sort of radical diarrhea-of-the-keyboard. Cooper concluded that Ndonye -- the criminal, the false rape accuser -- was the one who was "victimized" at a rape "party." Cooper manufactured an imaginary storyline that had Ndonye pleading while the supposedly vile men laughed at her and congratulated each other for their score. With no evidence beyond her fantastic ipse dixit and a mammoth anti-male chip on her shoulder, Ms. Cooper knows that the young woman said "Stop it!," "I want to leave!" "Get off me!" and "Help!" This, despite the fact that there is no evidence that any of that occurred. Cooper's language is a case study in misandry: "Like rutting animals one after the other - posing her, plunging in and out of her like beasts, using her body for their sexual satisfaction while others cheer him on and await their turn. What happened in that bathroom was not sex – it is sexual perversity and objectification of women." The "victim" couldn't have consented, Ms. Cooper concluded, because "the victim is in a nasty men's bathroom smelling of urine, and on a cold tile floor." (Because, you know how college men pee all over the floors of their bathrooms and everything, just to be vile.)
How does Ms. Cooper know what really happened? Because "[a]s an advice columnist for the past 20 years, I have a handle on how men think, the rage men have towards women that deny them . . . ."
By the way, in Cooper's world, the young man who made the video -- you know, the video that prevented five falsely accused young men from serving 25 years in prison for a crime they didn't commit -- he "is the most twisted" one of all.
Cooper wasn't alone. A Women's Studies major at George Washington University named Juliette Dallas-Feeney used the false rape claim at Hofstra to raise awareness about an entirely different crime: rape. She wrote in the GW Hatchet: "The incident at Hofstra is a wake-up call for GW and all universities to answer the problem of rape on campus."
Right. And an arson is a wake-up call to answer the problem of burglary.
"Whatever [the young woman's] reasons [for recanting], it's doubtful we'll ever know her true intentions because these situations are all purely speculative." (Funny, later on in her piece, Ms. Dallas-Feeney cites stats about the alleged prevalence of rape and doesn't bother to mention that those stats, by necessity, must be "purely speculative," too, since we can't possibly ever know for certain whether a rape claim is true or false. Right?)
Chivalrous Men Chime In
Three of the falsely accused men appeared on the Steve Wilkos show. What happened is chilling. The men come out, and were immediately booed by some members of the audience. Wilkos asked why audience members booed the young men. An angry young women came to a microphone and exclaimed that she had been sexually assaulted, and that "it's not cool. And if you guys are lying about it, that's not right. I know what it's like. It's not cool." Her comments were greeted with applause.
For his part, Wilkos was unsympathetic to the men. "Does that sound like a wholesome college experience?" Wilkos asks them, to applause. Later, one of the young men volunteered that they never should have gone to the party, to more applause. A male audience member stands up and says that he's gone to parties, and they don't have to end up having sex with a girl. The audience applauds again.
Wilkos said he's "not trying to be a prude," but the story of their encounter was "creepy." And "maybe if you held yourself to a higher level of conduct . . . ." And "doesn't that sound a little sleezy?" Wilkos then takes offense that one of the men was videotaping the encounter (the videotape, of course, is what led to their freedom), and asks one of the young men if he'd like it if someone did that to him. The audience applauds again. Another audience member stood up and expressed doubt about their innocence.
Finally, a young man stood up and said that he thought it was despicable that the men were booed, and that their personal lives were their business.
The Wilkos video is difficult to watch. Part of the audience's reaction seems to stem from the fact that Wilkos apparently didn't explain, in the clearest terms possible, that the Hofstra accuser not only recanted under oath but the circumstances of that recantation. It seems many in the audience weren't aware that the young men were truly innocent, which likely accounted for some of the applause at their expense. But it seems equally clear that at least part of the audience's disdain for the men stemmed from their views on the men's sexual conduct. For his part, Wilkos knew better. His disdain wasn't because he thought they committed rape. He was judging their morality.
If a television host had made similar comments about a rape victim, how long do you think he'd be on the air?
Another chivalrous man, a writer named Michael Daly, entered the misandry hall of fame with this gem: "The five were freed after getting the good scare that they well deserved." And this: "These five may not be guilty, but that does not make them innocent. They should stop their whimpering and apologize for acting like mutts."
Did you get that? The victims were not "innocent," and they should apologize to the criminal who did nothing less than they did – engage in consensual, albeit wildly raunchy sex – and then tried to destroy them because of it. The statement is breathtaking in both its idiocy and sexism. Yet, Michael Daly wasn't canned.
Cathy Young, for one, had no use for chivalry. The conduct of the young men wasn't "attractive behavior, to be sure,” she said, “yet we always have been told that rape victims don't need to be angels or models of chastity to deserve support. Surely the same should apply to men who are falsely accused."
If the "boys'" sexual escapades were troublesome, so was the "girl's," and, if it weren't for her lie about what happened in that restroom, what they did together would have been a purely private matter -- a matter that wouldn't concern the police, the courts, the news media, the feminist pundits, the chivalrous males, or any of us.
Although the young men were freed from jail and the charges were dropped, it can't really be called a "happy ending." The New York Post aptly ran a cover story "Smeared for life." The Post didn't bother to mention that it was one of the news outlets that helped smear the men for life.
It quickly dawned on the young men that, regardless of whether they would be found guilty, the stain of the crime had splattered on them with an indelible ink that would be impossible to remove. "Anytime anyone Googles my name, rape is going to be right there beside it. My name is forever tarnished," said 19-year-old Stalin Felipe. "What if I am applying for a job or whatever in the future? I feel like I am always going to have to offer some explanation."
One positive was that the young men did not appear to be consumed by hatred. One of the young men said he did not feel vengeful toward Ndonye. "Honestly, I was very scared. I don't know why she did what she did. I hope she doesn't go through what we went through."
Another of the accused young men, 20-year-old Jesus Ortiz, said he's trying to turn the horror of having his name dragged through the headlines into a positive. "People said I was a monster," Ortiz said. "I can't play baseball (at Bronx Community College) because the coach says I'm a negative influence on the team."
Most of the young men believed they could not obtain redress in a civil action. "I brought in a civil attorney I trust who reviewed it and found, unfortunately, there really is no case," said Victor Daly-Rivera, who represented the family of one of the young men.
Rondell Bedward was the only one of the men to sue. He sued Ndonye and Nassau County, the Nassau district attorney's office and the Nassau County Police Department for $70 million, saying that those agencies violated his civil and constitutional rights when they arrested him on first-degree rape charges in September 2009. He dropped the charges against everyone except Ndonye. When the matter proceeded to trial, just before Ndonye took the stand, the case settled on undisclosed terms.
Aside from the flashbacks and the mistrust they likely will harbor against women at least for a time, the real harm to the young men is the reputational injury they suffered, which is impossible to quantify. They have been branded forever by some as either rapists or potential rapists.
A student writer at Arizona State University summed it up as well as anyone could: "This controversy isn’t about men versus women, he said/she said. It’s about truth."
And, happily, the falsely accused men have youth on their side. As the saying goes, time heals all wounds. It is more than a little tempting to also hope that, as Groucho Marx said, time wounds all heels.
The lessons of Hofstra are many, and they are chilling. All of the horrors, all of the excesses, all of the injustices of Hofstra have played out countless times in innumerable false rape claims made since that September day when five innocent men were arrested for a crime they did not commit. Here are some of the more important lessons:
(1) The police need to thoroughly investigate first and arrest later. It's one thing to question an accused rapist; it's another to arrest, charge, and jail him when the investigation has barely begun. The assumption that a rape occurred on the basis of an accuser's say-so, in the face of the consistent, plausible, contrary story told by not one but four -- four -- men, is unjust, absurd, and frightening, all at once. In our zeal to stop rape, we not only scrapped the rule requiring corroboration, we've flipped it on its head: now, in "he said/she said" disputes, too often he is arrested and held for trial unless he can produce something akin to video evidence that will prove his innocence. The rush to judgment at Hofsta was an example of this, and it resulted in wide-ranging harm. While the false accuser is the party primarily responsible for that harm, law enforcement improperly acted as her "muscle" and should be held accountable.
(2) The news media does a lousy job reporting on rape cases. Is it too much for print and television news journalists to be anything more than law enforcement's parrots or to report more than what the police want them to know? Is it too much for them to actually do their own investigations, to report whether the rape allegation is supported by any known evidence aside from the accuser's word, to offer the other side of the story (e.g., the fact that the stories of the four accused men in the Hofstra case were consistent, and that the story of the accuser was riddled with inconsistencies)? What we saw here was a vicious smear, a wholesale destruction of four young nobodys, their scared and callow faces displayed so that the world could scorn them and titillate to their humiliation.
In the aftermath of the Hofstra debacle, Carol D’Auria of 1010 WINS said this: “We need to move slower." She added: “But I don’t see that happening.”
(3) False rape claims aren't considered a serious crime. Following Ndonye's recantation, the District Attorney said that no crime was committed, then made good on that declaration by refusing to charge Ndonye. In fact, false accusers are rarely punished for their crimes. In this case, the victims were incarcerated for four days, the criminal was not incarcerated at all. What message does that send would-be false accusers?
A refusal to prosecute someone who lies about rape undermines public confidence about the way rape claims are handled. Juries will be all the more wary of convicting men of rape, even those who deserve to be convicted, if they believe that prosecutors cavalierly allow accusers to tell rape lies with impunity as occurred here. There is no evidence that punishing accusers who tell demonstrable lies discourages victims from coming forward. The fact is, refusing to charge false accusers because we don't want to discourage rape victims from coming forward is having the opposite effect: by enabling rape lies, we diminish the integrity of every rape accuser, and the claims of rape victims are automatically suspect. Deterring false accusers with real punishments would enhance the integrity of rape victims by deterring the liars.
(4) Video evidence is too often necessary to spare innocents from the destruction of a rape lie. Case after case finds men and boys being freed because of video evidence. In many cases, we have turned on its head the former requirement that every rape claim be supported by corroborating evidence: now, to be cleared of rape charges, too often it is necessary for the accused to produce corroborating evidence. The chilling question is, how many wrongful arrests are made where there is no video evidence?
(5) Even after the rape claim is exposed as a lie, many people will insist that "nobody knows what happened there." This is so even with a recantation under oath and video evidence showing the act was consensual.
(6) Even when men are innocent of rape, they may still be guilty in the court of public opinion for "taking advantage of that girl." Sex outside the norm or sex with an "undesirable" male partner is presumed to have been forced on the female, either by rape or improper cajoling.
(7) When a rape claim turns out to be false, it's still a good opportunity scare everyone about rape. As in, "it didn't happen this time, but that doesn't mean it couldn't." All the while we ignore the crime that was committed, the false rape claim.
Where Do We Go From Here?
In the end, all of the hand-wringing that insisted Danmell Ndonye was a victim who could not possibly have consented to sex, and that the men were evil sex predators who most certainly raped her or at least most certainly took advantage of her, accomplished the seemingly impossible task of insulting two genders at one time.
First, it insulted women as a class by implying that they are either too stupid or too weak to act as free moral agents capable of making even fantastically dumb choices when it comes to sex, and that they need to be protected them from the male evildoers.
Second, it insulted men because it suggested that when men and women engage in consensual, albeit fantastically stupid sex, the men must be predators, the women must be innocent victims, and later, if the women try to destroy the mens' lives by crying "rape," at the very least, the men will get the "good scare" they deserve. The misandry at work here is breathtaking.
So what is the answer? The question first needs to be answered by police and the news media. Here are some suggestions for both. Heed the words of an expert on the subject: "Although it may not be 'politically correct' to question the veracity of a women's complaint of rape, failing to consider the accuser may be intentionally lying effectively eradicates the presumption of innocence." Dr. Bruce Gross, False Rape Allegations: An Assault on Justice, Annals of the American Psychotherapy Association, Dec. 22, 2008.
Our law enforcement personnel and print and electronic media journalists need to go back to doing what they were trained to do: investigate. Treat every rape claimant with the utmost respect, and treat every man or boy accused of rape the same way. And be critical of everything without treating either the accused or the accuser as a liar. Don't arrest for rape, and don't report that a rape occurred, until your investigation is sufficiently complete that you're sure about it. Journalists should never, ever, ever say "police say a rape occurred" and leave it at that. They need to tell us why the police say that, find out if there is another side to the story, and check into it on their own. They are playing with the lives of the presumptively innocent, and their responsibility far exceeds snagging big ratings. They need to be held accountable.
In fact, the most frightening aspect of the Hofstra case is that five innocent young men were nearly destroyed by practices that were, and are, deemed to be wholly acceptable -- practices that are business as usual.