Duke Case: Fairness Requires Publicizing the Accuser Too
As the complete dismissal of the deplorable Duke case comes closer in time to be a factor in Durham County, North Carolina District Attorney Michael B. Nifong's hearing next Friday on his motion to dismiss part of the ethics complaint against him filed by the North Carolina State Bar), it is particularly appropriate to ponder the lessons of the case, especially the ones the earlier supporters of the Hoax hope are not learned, such as the need to publicize the accuser as well as the accused and to make sure so-called rape shield laws do not exclude pertinent evidence as well as irrelevancies.
In an April 20, 2006 article I challenged the media characterization of the accuser as a victim and asked whether she really was a victimizer. The next day I followed up the next day with a suggestion that the accuser should be more accurately described as an erotic dancer than an exotic one (to the consternation of Hoax supporters).
In a June 17, 2006 article entitled "Suggestion to Crystal: pray, learn from Cynthia, apologize" (former Congresswoman Cynthia McKinney had stopped playing the race card and apologized for striking a policeman), I gravely offended many by using the false accuser's full name and offering her some unsolicited, but sound, advice that went unheeded. (One erudite Black professional whom I will not name promptly and passionately emailed me privately and at length her thoughts on my article, and then an apology for jumping to a wrong conclusion when I responded that I had publicly criticized the prosecutors in both the Kobe Bryant and Michael Jackson cases, proving not only that some people on the other side are open-minded, but that sometimes it's wiser to rail privately than to rant publicly.)
Meanwhile, individualist feminist Wendy McElroy was antagonizing feminists like Susan Estrich, Wendy Murpjy and Nancy Grace by focusing on the facts instead of the fantasy in the Duke case.
Wendy McElroy on Wendy McElroy: "Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, 'Liberty for Women: Freedom and Feminism in the 21st Century') (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.
A bit more than a year ago., Ms. McElroy wrote an article entitled "Duke Rape Case Raises Issue of Protecting Identity of Accused."
To her credit, Ms. McElroy was concerned about fairness and justice, not agenda and advantage.
"The accusation of rape against two Duke University students has set loose the media equivalent of a lynch mob. To the media mobsters, trials seem to be a legal nicety, not a necessity, to ascertain guilt.
"The names and photos of the accused are smeared across network television in what sometimes seems to be a conscious effort to destroy lives. Meanwhile, so much as hinting at the accuser's initials is strictly forbidden. The imbalance is wrong."
Of course it is! Just as the gag order issued in the Duke case by Judge Kenneth Titus (later lifted by Judge Osmond Smith) was wrong.
Ms. McElroy: "I believe that neither party should be named until a public trial begins; at that point, the names of all parties should become public record. The demand for transparency in judicial proceedings does not reflect indifference to victims."
That is balanced, but not fair.
A public trial can begin and end on the same day.
That doesn't give the public adequate time to come forward with pertinent information.
As the Duke case demonstrated, there can be plenty of pertinent information that can come out if the public becomes aware.
If the names were concealed until a public trial began, (1) we still would not know who was accused in the Duke case and who was doing the accusing; (2) Durham County, North Carolina District Attorney Michael B. Nifong would have lost the Democrat district attorney to Freda Black and she would have replaced and sent him packing by now: (3) there would not have been a "60 Minutes" hoax expose with the late Ed Bradley interviewing the Duke Three (Reade Seligmann, Collin Finnerty and David Evans) and showing the world that they were not the rapacious monsters of urban legend and their false accuser (Crystal Gail Mangum) had returned to pole dancing with a rapidity that belied her claims, or the follow up with Leslie Stahl showing that Mr. Nifong's hope of escaping punishment was growing more and more small; 4) The New York Times and the bulk of the biased leftist media would not have exposed themselves as agenda-driven instead of reality-oriented; and (5) Mr. Nifong would not have had an apparently irresistible (for him) temptation to not only ignore, but conceal, exculpatory DNA evidence and seek politically advantageous, but morally outrageous, indictments.
Ms. McElroy: "'The right to a public trial' is one of the most basic guarantees of justice and nothing expresses concern for victims better than ensuring judicial fairness."
Exactly. An accuser may be a victim or a false accuser, and a false accuser may falsely accuse deliberately or mistakenly. The purpose of the judicial system is not to rubberstamp or reject accusations, but to ascertain whether they are supported by competent evidence sufficient to prove guilt beyond a reasonable doubt.
Ms. McElroy: "Moreover, maintaining the privacy of only one party to a public procedure encourages unbalanced reporting in the media, which is fair to no one."
True. It also encourages false accusations.
Ms. McElroy: "The media is not required to protect the name or privacy of accusers. Although rape shield laws are widely viewed as imposing such an obligation, they are actually rules limiting what evidence about a victim's sexual history can be presented at trial. They do not limit freedom of speech or the press."
True. Neither a rape shield law nor a judge can trump the First Amendment!
Ms. McElroy: :The media's silence is a voluntary code of conduct. A different code could be adopted by which both parties or neither are named."
I named all parties, to the consternation of some feminists.
"Why doesn't that happen?
"Part of the reason is that the media still buys into the theories of rape promoted by political correctness. One of those theories is that false accusations of rape are extremely rare. This means the accuser is generally assumed to be telling the truth; even if there are reasons to doubt the accuser's accuracy, there is still the assumption that 'something' must have happened."
Now that's really pre-judging, or prejudice.
Ms. McElroy: "The flip side, of course, is that the accused is prejudged as having done 'something' wrong. These two assumptions alone may account for the wildly different treatment of accusers and accused by the media."
Also, it makes a more sensational story to treat accusations as true.
"In contrast, I believe false accusations are common. How common? No one knows for sure. False accusations are not tracked or routinely punished as other crimes.
"Feminists often claim that 2 percent of all reports are false.
"Another widely quoted figure comes from a study conducted by Eugene Kanin of Purdue University, who examined 109 rape complaints registered in a Midwestern city from 1978 to 1987. The police finally classified 45 of them -- or approximately 41 percent -- as false.
"When statistics vary so wildly, all that can be said is 'we don't know.' But the prevalence of false accusations can [be] judged with reference to the importance placed upon preventing it throughout history. For example, there are only 10 Biblical commandments and one of them states, 'Thou shall not bear false witness…'"
Lying has been a problem for a long time!
As Ms. McEroy explained, Western jurisprudence seeks to stop it:
"Some of the main safeguards of Western jurisprudence are specifically meant to prevent false accusations. They include:
--The right of the accused to face and question an accuser. The public nature of these rights discourages lying and makes any lies that do occur more difficult to sustain.
--The presumption of innocence. This procedural right places the burden of proof on an accuser's shoulders. It recognizes the fact that accusations can easily made and, so, must be proven before they can be credited.
--Laws against perjury.
"A public trial. This not only provides the protection of publicity but also allows others who may have been wronged by the accuser to come forward."
Yes, but they need to know about it in time to come forward.
Obviously Ms. McElroy's own "common sense" told her to doubt that 2% claim:
"Moreover, from the anecdotal evidence of merely being alive, more people know that human beings often lie. The motives for lying vary widely: revenge, fear, profit, shame, in order to protect someone else. The incidence of lying increases when incentives to do so are present.
"In the Duke case, for example, the accuser has both an extensive police record and children. After the notorious party, she was described as 'just passed-out drunk' in a car by one of the first police officers to see her.
"By claiming rape she may have been trying to avoid the possibility of re-arrest and the possible loss of her children to the child welfare system.
"The fact that the media is shielding her name (while trumpeting those of the accused) provides another incentive. A shielded accuser does not incur the same degree of personal devastation as does a named accused."
The media demonized the Duke Three and exalted Ms. Mangum, until the truth emerged.
Ms. McElroy: "During trial, the act of extending privacy to an accuser sabotages the justice system that requires transparency to avoid corruption. But even before trial, shielding only one side sabotages justice."
Absolutely. And if truth is the paramount concern, there needs to be time for it to emerge.
"With particular reference to the media, it also reveals and encourages a bias that verges on hypocrisy in at least three ways:
--Accusers are not similarly shielded in other crimes involving adults, even to crimes that are as traumatic as rape (e.g. kidnapping, attempted murder).
--Through interviews with an accuser's family and associates, information that bolsters the accusation is aired yet the interviewer remains technically 'pure' about not naming names.
--The eagerness with which the accused is savaged casts doubt on the compassion and fairness that media mobsters often claim as their motives."
I have no doubt that much of the media is UNfair and agenda-driven.
The Duke case didn't require so much as an indictment for the eagerness to kick in. (Of course, once an accuser's identity becomes so publicly known that it cannot be ignored, the accused can be equally savaged thus bolstering the argument for a policy of privacy for both before trial.)
But telling the truth is NOT savaging. Ms. Mangum's criminal record and employment and medical history are what they are. The press reported on the incident that resulted in Ms. Mangum's conviction long before Ms. Mangum cried gang-rape by Duke lacrossers.
Ms. McElroy: "Shielding the identity of only one side of an accusation reduces justice, produces biased reporting and constitutes an invitation for abuse from those being 'protected.'"
Ms. McElroy: "Consider the Duke accuser's co-stripper Kim Roberts. She recently denigrated the character of defense attorneys for violating the accuser's privacy in releasing photographs and her own privacy in releasing her criminal record. (This, despite the fact that it was the prosecuting D.A. who opened the door wide to media disclosure.)
Since when does privacy justify concealment of a criminal record?
Or such photographs (evidence that contradicted accusations that resulted in baseless indictments)?
The criminal record was not falsified, and the photographs were not doctored, so releasing them was wise, not wicked.
Ms. McElroy: "Apparently, witnesses for the accuser have a claim to privacy by association, even regarding public records. Yet privacy concerns did not prevent Roberts from granting interviews to the media (Newsweek, the Associated Press nor from writing to the New York firm 5W Public Relations. Roberts asked the PR firm, 'I'm worried about letting this opportunity [the Duke case] pass me by without making the best of it and was wondering if you had any advice as to how to spin this to my advantage.'"
Ms. Roberts even made it on the first "60 Minutes" Duke case show (by which time she realized that her "advantage" involved telling the truth about what she did know).
Ms. McElroy: "One-sided demands for privacy are like a shell game played with moves meant to confuse. The solution is simple. The media should cease to make accusations into reality shows and shield the identities of both parties. Once a case goes to public trial, however, it should become just that: public, and for both parties."
The media has a constitutional right to "make accusations into reality shows" and will exercise it as long as profits and/or agendas inspire it to do so.
That means fairness requires publicizing the accuser too.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.