Mike Nifong's handling of the case was clearly outrageous. But he would probably not have gone so far, indeed would not have dared to go so far, had he not been egged on by two other groups that rushed just as quickly to judge the three accused young men guilty of gross and racially motivated carnal violence. Despite the repeated attempts by the three to clear themselves, a substantial and vocal percentage--about one-fifth--of the Duke University arts and sciences faculty and nearly all of the mainstream print media in America quickly organized themselves into a hanging party. Throughout the spring of 2006 and indeed well into the late summer, Nifong had the nearly unanimous backing of this country's (and especially Duke's) intellectual elite as he explored his lurid theories of sexual predation and racist stonewalling.
Although outsiders know Duke mostly as an expensive preppie enclave that fields Division I athletic teams, the university's humanities and social sciences departments--literature, anthropology, and especially women's studies and African-American studies--foster exactly the opposite kind of culture. Those departments (and especially Duke's robustly "postmodern" English department, put in place by postmodernist celebrity Stanley Fish before his departure in 1998) are famous throughout academia as repositories of all that is trendy and hyper-politicized in today's ivy halls: angry feminism, ethnic victimology, dense, jargon-laden analyses of capitalism and "patriarchy," and "new historicism"--a kind of upgraded Marxism that analyzes art and literature in terms of efforts by powerful social elites to brainwash everybody else.
Postmodern theorists pride themselves in discerning what they call "metanarratives." They argue that such concepts as, say, Christianity or patriotism or the American legal system are no more than socially constructed tall tales that the postmodernists can then "deconstruct" to unmask the real purpose behind them, which is (say the postmodernists) to prop up societal structures of--yes, you guessed it--race, gender, class, and white male privilege. Nonetheless, in the Duke lacrosse case the theorists manufactured a metanarrative of their own, based upon the fact that Durham, North Carolina, is in the South, and the alleged assailants happened to be white males from families wealthy enough to afford Duke's tuition, while their alleged victim was an impoverished black woman who, as she told the Raleigh News and Observer in a credulous profile of her published on March 25, was stripping only to support her two children and to pay her tuition as a student at North Carolina Central University, a historically black state college in Durham that is considerably less prestigious than Duke. All the symbolic elements of a juicy race/gender/class/white-male-privilege yarn were present. The theorists went to town.
Allen offers some in-depth discussion of how the "metanarrative" played itself out both in statements by the left-wing faculty at Duke and in the mainstream media coverage; her article is worth reading just for that account. With the case unraveling, the hanging party at Duke remains unrepentant. Allen quotes an inadvertently hilarious article by Duke English professor Cathy Davidson, one of the 88 faculty members who signed a full-page ad in the Duke student paper, The Chronicle, on April 4, 2006 -- a so-called "listening statement" expressing solidarity with students who sided against the accused players. Davidson's op-ed, worth reading its entirety, defends the ad by claiming that (1) it never fostered a presumption of guilt toward the lacrosse players and (2) that the real issue here is assorted social injustices (poverty, unequal pay for women, lack of affordable health care and child care, etc. etc.). Davidson does mention in passing, toward the end of her piece, that "if it turns out that Mike Nifong has no evidence (as he insisted he did back in the spring), he will have betrayed the trust of an entire community and caused torment to these young men and their families"; but she also suggests that the accuser deserves to be seen as a victim simply because she is "a single mother who takes off her clothes for hire partly to pay for tuition at a distinguished historically black college."
As for the suggestion that the "listening" ad never promoted a presumption of guilt: read for yourself. By the way, the ad has been taken down from its original location on the website of Duke's African-American studies department; but the Google cache remains. As Allen notes, comments such as, "These students are shouting and whispering about what happened to this young woman and to themselves," certainly imply that the ad signers assume the woman's story to be true. In fact, every single student comment quote in the ad that is directly relevant to the case is supportive of the accuser and skewed heavily toward belief in the guilt of the accused.
But in addition to the professors and the journalists, there is another culpable group that has not received enough attention: the sexual assault victim advocates and the professional feminists (two overlapping groups) who have been fanning the flames as well.
I made two blogposts on this issue in 2006. The first, built around my May 1 Globe column, dealt with the advocates' attitude toward this case and the "women don't lie about rape" mindset in general. As I wrote in the column:
Feminism has achieved real and important progress in the treatment of sexual assault victims. A couple of generations ago, a stripper at a party with athletes would have been viewed by many as fair game. That this is no longer the case surely makes us a more decent society.
But even some people who applaud this change believe that in some cases, the pendulum has swung too far. Many feminists seem to think that in sexual assault cases the presumption of innocence should not apply.
Appearing on the Fox News show ''The O'Reilly Factor," Monika Johnson-Hostler of the North Carolina Coalition Against Sexual Assault declared that her role was ''to support a woman or any victim that comes forward to say that they were sexually assaulted."
To O'Reilly's question, ''Even if they weren't?" Johnson-Hostler replied, ''I can't say that I've come across one that wasn't." Feminist pundits discussing this case, such as Wendy Murphy of the New England School of Law, exude an overwhelming presumption of guilt.
My second post, about a month later, was a response to Barry (Ampersand), who accused me of distorting Johnson-Hostler's exchange with O'Reilly (prior to the line I quoted) to imply that she had explicitly stated she did not believe in the presumption of innocence. Of course, I never suggested that; I think a presumption of guilt -- not in the courtroom perhaps, but in the court of public opinion -- comes out of Hostler-Johnson's assertion that every woman who claims she was sexually assaulted is telling the truth. (In another exchange Barry quoted later, she allows that these particular accused men may be innocent but goes on to assert that someone in that house was guilty of rape.)
As for Wendy Murphy: K.C. Johnson at the invaluable Durham-in-Wonderland has a mind-boggling compendium of her falsehoods, distortions, misstatements, and wild speculations uttered on CNN, Fox News, and MSNBC. (There is also the classic: "I never, ever met a false rape claim, by the way. My own statistics speak to the truth.")
Here are some of the lies, with comments by KC:
1.) (22 December 2006) “One of the reasons I think she should be thought of as fairly credible is that she rejected a 2 million dollar plus offer by people on behalf of Duke at the outset.”
In fact, the accuser told police on June 30 that she had never been offered any money, by anyone, to drop the case.
2.) (1 May 2006) “All the photographs showing how really fine she was when she left scene were doctored, where the date stamp was actually fraudulent.”
In fact, these photographs have been cited in various defense motions, and even Nifong hasn’t challenged their veracity.
3.) (11 April 2006) “You know, these guys actually . . . some of them have been, according to neighbors, reportedly been involved in not only carousing activity but other sexual offenses.”I am aware of no statement, by any neighbor, accusing any of the players of involvement in “other sexual offenses”; the Coleman Committee Report established that they had no such records.
9.) (27 April 2006) “It was because a broom handle was used, which by the way, doesn’t produce DNA when you put it inside someone.”
The search warrant for the lacrosse house contained no mention of a broom; and at no point in her myriad stories did the accuser claim assault by a broom.
10.) (2 May 2006) “The broomstick DNA has not yet been revealed.”
In fact, no “broomstick DNA” exists, since the police never seized a broomstick.
11.) (5 April 2006) “She had a torn genital area.”
In fact, in a recent court filing, even Mike Nifong conceded, “There is no scientific or other evidence independent of the [accuser’s] testimony that would corroborate specifically” a charge of rape.
The unfounded speculations:
1.) 1.) (19 June 2006) “Let me tell you what I think [Nifong] probably has—statements from some of the players who are probably cooperating because they actually have a conscience and think it matters when you tell the truth. And I bet she has GHB in her blood.”
2.) (26 Dec. 2006) “There’s a good chance a few of [the players] actually saw what happened and may well be cooperating.”
3.) (26 Dec. 2006) “Are there photographs? We know there were before photographs and after photographs. There’s a chance there are during photographs.”
(There are five more where that came from.)
And, on that pesky presumption-of-innocence issue:
(May 1) “I’m really tired of people suggesting that you’re somehow un-American if you don’t respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you’re a liar.”
(April 10) “These guys, like so many rapists—and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim.”
As this email posted on the conservative website MichNews.com shows (assuming it is authentic), Murphy is still sticking to her guns, even in the face of the prosecution's collapse, and still repeating her wild fantasies about photos of the sexual assault.
Murphy, a former sex crimes prosecutor and an adjunct professor at the New England School of Law in Boston, is a real piece of work. She's a tireless defender of discredited child-abuse witch-hunts based on junk science. She's an ideologue whose contempt for opposing viewpoints puts off even those sympathetic to her cause (see this page for some student responses to a lecture she gave at Harvard), and who once called a snow sculpture of an erect penis built as a campus prank a "powerful symbol of sexual dominance and gendered violence" similar to "a snow sculpture of a Nazi swastika or the confederate flag." And then people wonder where the "man-hating feminist" stereotype comes from.
Murphy may be an extreme case, but her contempt for the presumption of innocence is fairly typical of the camp that Katie Roiphe once dubbed "rape-crisis feminists." These are the ideologues who see rape as the ultimate act of a male "war against women," and for whom, as Catharine MacKinnon put it in her 1987 book, Feminism Unmodified, "feminism is built on believing women's accounts of sexual use and abuse by men." In 1985, amidst the media storm surrounding Cathleen Webb's recantation of the rape charge she had made in 1979 against Gary Dotson (then serving a prison sentence for the crime), feminist sociologist Margaret Gordon wrote an article for The Chicago Tribune called "Rape and the Benefit of Belief." She concluded by saying, "Rape victims deserve the benefit of belief. To give them less is to do agreat disservice and injustice to all the women who tell the truth." This formula, of course, is a deliberate reversal of the classic legal principle that the accused deserve the benefit of the doubt.
In fact, no one knows the true prevalence of false accusations of rape, and it would be very difficult to establish an accurate picture. (I dealt with this topic in a 1999 article in Salon.com.) But obviously, false accusations to happen. As I wrote in Salon:
To recognize that some women wrongly accuse men of rape is no more anti-female than it is anti-male to recognize that some men rape women. Is it so unreasonable to think that a uniquely damaging and stigmatizing charge will be used by some people as a weapon, just as others will use their muscle as a weapon? Do we really believe that when women have power -- and surely there is power in an accusation of rape -- they are less likely to abuse it than men? As Columbia University law professor George Fletcher has written, "It is important to defend the interests of women as victims, but not to go so far as to accord women complaining of rape a presumption of honesty and objectivity."
Of course it's the job of rape victim advocates to advocate for victims, just like it's the job of defense attorneys to advocate for the accused. But the victim advocates should not rally unquestioningly to the side of anyone claiming to have been sexually assaulted, no matter how suspect her story, or slam those who raise legitimate questions about her credibility. A knee-jerk "if she says she was raped, then she was" stance is not only unfair to the accused, it is also, in the end, damaging to the advocates' credibility -- and therefore, to those for whom they advocate.
If the Duke prosecution case turns out to be the fiasco it now seems to be, it may become a turning point in media attitudes toward rape charges. Even some good liberals such as New York Times columnist Nicholas Kristoff have been appalled by the prejudice exhibited in this case against white male jocks -- no better, Kristoff suggests, than the prejudice directed against black hobos in the Scottsboro Boys case in the 1930s. (For those who don't have Times Select, the column is summarized here.) Maybe we're starting to remember that the presumption of innocence is a liberal value, even when an accusation of sexual assault is involved.
Sadly, a new skepticism would likely backfire against real victims. It is often said that women who make false accusations of rape cause great harm to those who really are raped, making it harder for them to be believed. Victim advocates who champion fake victims hurt the real victims too, by depriving them of effective and credible advocacy. Maybe we need rape victim advocates who are not committed to ideological myths, and who are more interested in helping victims than in gender politics.
More: An excellent column by Wendy McElroy examining the "talking points" posted by the National Sexual Violence Resource Center (NSVRC), and believed to be authored by Murphy herself. The "talking points" are basically verbal somersaults intended to prove that the "Duke Three" are probably rapists and that the prosecutor is guilty of no wrongdoing. Here's a mind-boggling sample:
The "talking points" address Nifong's suppression of DNA evidence -- a transgression for which he is being investigated on ethics charges by the North Carolina State Bar. The head of a lab testified in court that Nifong told him not to reveal exculpatory results.
The "talking points" state, "One can argue that Nifong's withholding of this information was proper because the [accuser's] sexual history, like the sexual history of the defendants, is constitutionally protected private information. It is improper for any prosecutor to disclose this information without a hearing at which a judge must make a ruling to decide whether sexual history is relevant to an issue in dispute."
And so the defamation and misinformation continues.
To those who ask, "What will make it cease?" the answer is clear: nothing.
The attack is not based on what is true or false, on whether a rape occurred or not. NSVRC derives its money from the current paradigm of victimhood. Murphy has based her reputation on it. They are fighting for their lives and livelihood.
I'm not sure it's money per se, so much as ideology. Either way, the victim advocates are strongly invested in perpetuating their dogma, at the expense not only of accused men but of the real victims.