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Brett Kavanaugh, The Duke Lacrosse Team, and Déjà vu

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American politics seems to revolve around claims of sexual assault, be it the recent fight over the Supreme Court nomination of Brett Kavanaugh (and whether or not he did everything but run a sex trafficking ring at a pizza shop), the past escapades of President Donald Trump, or the sexual exploits of Bill Clinton who also was accused of brutally raping a campaign worker while he was attorney general of Arkansas. Politics not only plays the central role about who is accused, but also about the believability of the accuser and the accused.

While many people have compared the Kavanaugh affair with the infamous SCOTUS hearing involving Justice Clarence Thomas and law professor Anita Hill, the recent goings on remind me much of an event in which I was involved more than a decade ago: the Duke Lacrosse Case. While the drama of the Kavanaugh accusations at most may last a few weeks, the Duke spectacle went on for more than a year before the attorney general of North Carolina, Roy Cooper (now North Carolina’s governor) declared the three lacrosse players accused of rape actually were “innocent” of all charges.

Although people may have different memories of the case and its outcome, it general is accepted that three lacrosse players from Duke University were falsely accused of raping a black stripper named Crystal Mangum at a team party in late March 2006. People with at least some knowledge of the incident will say that the Durham County prosecutor, Michael Nifong, was overzealous in his prosecution of the young men and, as a result of his “win at all costs” efforts, crossed the legal line and was punished by losing his job and his law license, and spent a day in jail after being convicted for contempt of court.

People also might say that early on there was a “rush to judgement,” as the explosive accusations fueled the narrative of “privileged, drunken white males” raping a poor black woman and it took a while before the defense could lay out the facts. In the end, people would say, “the system worked,” and the lacrosse players were exonerated.

Such a narrative of the case, while partly true, does not tell about the underlying and relentless effort by the leftist establishment from the Duke faculty to the New York Times to railroad the three accused young men into prison despite the mountains of exculpatory evidence, with the mob engaging in intimidation of witnesses, promoting false evidence, and appealing to political narratives. Although the lack of evidence and the exposure of official misconduct might lead one to believe this was a slam-dunk for innocence, that was not the case and if the same accusations were made in today’s “Always Believe Her” atmosphere, it might be impossible for someone falsely accused in a high-profile situation to be able to receive justice.

When one adds the presence of all-encompassing social media – something that for practical purposes didn’t exist in 2006 – one can understand how lies that that uphold popular political narratives will gain traction to the point where the truth is lost in a blizzard of Tweets and Facebook memes. And there is one more development of the past few years that had it existed in 2006 would have been the proverbial game changer: the rise of Antifa and Black Lives Matter.

While the Duke accusations produced plenty of demonstrations, most of them were homegrown and consisted of Duke students, faculty, and assorted local social justice groupies. Other than a brief appearance by the out-of-town New Black Panthers, whose members verbally intimidated one of the accused, Reade Seligmann, while he walked with his attorney to a hearing at the courthouse in Durham, no outside groups promoted or engaged in violent protests. While George Soros in 2006 was writing checks for left-wing causes, he had not yet started funding violent street-fighting groups, but ever since the Ferguson riots, which apparently were financed in part by Soros money, the protest landscape has changed.

If the same accusations were made today, one can assume that both Antifa and BLM protesters would pour into Durham, and the protests would be violent. No one even remotely associated with the lacrosse team would be safe, from coaches to players to families of the players and coaches, not to mention the attorneys for the players (and their families, too). Social media would explode and no doubt Twitter would suspend the accounts of anyone remotely questioning the pronounced guilt of the players. Furthermore, the news coverage today would be even more craven than it was in 2006 – and that is saying something, given the guilt-affirming media coverage that characterized the Duke reporting .

More important, is that even though we now know why the Duke charges were false – and that science itself (and progressives claim fealty to the God of Science) proved that point – the media continues to promote the view that the accuser, Crystal Mangum, was telling the truth. Lest one believe I exaggerate, read from the following reviews of William D. Cohan’s 2014 The Price of Silence , which claimed that the exonerated players might not have been so innocent after all. (Cohan interviewed the disgraced prosecutor Nifong and Mangum, who was in prison for murdering her boyfriend, and claimed that they presented “new information” to him that cast doubt on Cooper’s pronouncement that no rape had occurred.)

“Fascinating...What Cohan’s extraordinary 600-page tome shows is that there is a yawning gap between the lofty rhetoric and grubby reality of American elite universities... It is around the issue of sports that the tangled questions of power, money, racism and culture crystallize particularly clearly…as anthropologists know, every society has power networks and rituals that enable groups to coalesce. But another truism of anthropology is that rituals are most effective in upholding power structures – however distasteful – when nobody talks about them at all, be that on Wall Street or university campuses. In that sense, then, the good news about the 2006 scandal was that it spurred debate about standards.” ( Financial Times)

The Price of Silence is the definitive account of what happened up to and after Crystal Gail Mangum made her accusation. Its 600-page length might at first seem more appropriate to a presidential biography or a history of one of the world wars, but The Price of Silence earns its heft, and unlike most biographies and histories, it rarely loosens its grip on its reader’s attention.” (Salon)

When President Obama recently issued new guidelines for reporting and investigating sexual assaults on campus, he signaled his intention to curb violence against women and to confront a toxic culture that is deeply entrenched in higher education.

Triangle readers might view these policies as a delayed response to the Duke lacrosse controversy of 2006, where a racially charged rape allegation made by a stripper against members of the Duke men's lacrosse team later proved unfounded. It remains one of the most prominent and confounding cases of its kind—less for the alleged assault than for a botched prosecution that led to the disbarment of District Attorney Mike Nifong. ( Indy Week)

Note that Indy Week is a socialist publication located in the Durham area – and its insistence that the problem was not that the accusations were false, but rather that the prosecution “botched” the case – actually is not surprising. Indeed, “botched prosecution” or “botched investigation” has been one of the dominant themes of news coverage of that event, then and now. The problem is that Nifong and the Durham police did not “botch” the investigation. A “botched” investigation would have consisted of failure to pick up vital information and clues that either would have better confirmed the guilt of the suspect or suspects, or it would have led police away from the trail of the real perpetrators.

Furthermore, as I pointed out in my original review of Cohan’s book, he claims that because DNA analysis was not a factor in rape convictions in the past (before such analysis became developed in the science labs), the DNA evidence in the Duke case was irrelevant . I wrote:

Cohan in both his book and also in many of his radio and TV talks show interviews has stated that the DNA results – finding no DNA of any lacrosse player (not just the three accused) and the discovery of DNA of at least four other men on her body and in her “body cavities” – was a “red herring.” In other words, the DNA results were irrelevant.

Why? According to Cohan, since there were rape prosecutions (and acquittals of and convictions for) before DNA results became part of forensic science, DNA results then should have no bearing, at least in the rape accusations against Seligmann, Finnerty, and Evans. To bolster his claim, Cohan quotes Nifong, who declares, “Absence of evidence is not evidence of absence.”

Neither the DNA evidence nor any other part of the faux investigation was “botched” in the Duke case. From the start, the goal was to indict and convict the lacrosse players, come the proverbial hell or high water. In that regard, no one “botched” the investigation; it was rigged and police and Nifong lied from beginning to end. They didn’t “botch” the collection of evidence; they made it up or they tried to hide the exculpatory evidence, and then when attorneys uncovered their lies, they then claimed that DNA didn’t matter, anyway.

Lest one think that the praise for a false narrative is limited to obscure outlets, think again. Sarah Jeong, the new editorial writer for The New York Times who became infamous because of her “I hate white men” Tweets, also weighs in on both the Duke case and the false “Jackie was raped at the University of Virginia” story that made Rolling Stone a laughingstock of journalism and resulted in a scathing investigation from Columbia Journalism Review. Ignoringall of the evidence otherwise that the RS story wascompletely untrue, Jeong writes:

I keep getting bogged down in the details of Jackie’s “unraveled” story. The party that wasn’t on the fraternity calendar. The date that wasn’t a fraternity brother. The wrong time of year for pledging. The more I see these “inconsistencies” and “discrepancies” touted as evidence of falsehood, the more convinced I am that Jackie is not lying. I go over them again and again in my head. I keep starting this conversation with my boyfriend. He tells me that that’s not even the point—the issue isn’t with Jackie’s story, the issue is with Rolling Stone’s decision to run the story without Jackie’s willingness, their failure to properly fact-check. I know, I know, I know, and yet I’m still stuck on the details, the way I’m still stuck on, “I’m wearing you.”

I believe Jackie. It’s a different kind of believe from believing that her story is a historical, factual account. But she’s not lying. Her story is one she’s pieced together through a haze of agony, even as every neuron in her brain worked to forget what had happened. She didn’t know her date’s actual affiliation with the fraternity. She didn’t even know which fraternity it was. (She says herself that she later pointed the building out to a friend, and the friend identified it for her).

She continues:

Something terrible happened to Jackie. I don’t know what it was. Her suitemate doesn’t know what it was. I don’t even know if it’s clear to Jackie. But something happened.

Regarding the outcome of the Duke case, we get this:

They own the words. They own the law. They own reality or at least what everyone acknowledges as reality. They own the Truth™, the Truth that makes up how we understand our society—the truth of what happened with the Duke lacrosse players, the truth of the injured burglar who sued the property owner, the truth of the McDonald’s coffee that was too hot. (No, this isn’t the part where I link you to what really happened in those cases. Why would you care about what really happened, anyways?) (Emphasis mine)

Translation? They really did rape Jackie and Crystal, at least in the world that Jeong and other feminists and their allies want to create. Yes, yes, yes, in this “reality-based” world Reade Seligmann was somewhere else when he was supposed to be raping Mangum, but it doesn’t matter because he still is a rapist in Jeong World, which is the new order that the cultural left wants to impose. If law and views of guilt and innocence are nothing but a “social construct,” according to the modern academy, then feminists and their allies can legitimately create their own “social construct” that authoritatively claims those dastardly fraternity boys raped Jackie because she said so. Brett Kavanaugh organized gang rapes when he was in high school because politics demands it and because a publicity-seeking lawyer and an unreliable client have made the claim, a claim that no one would accept if Democrats did not think a Justice Kavanaugh to be a threat to Roe v. Wade.

Remember, Jeong is an editorial writer for the most influential newspaper in the world, The New York Times, where the editors claim that they believe in science. In fact, Jeong writes on technology issues, which one would think would involve something called science, but in the modern leftist world, feelings and the desire for a specific (if not realistic) political outcome always will trump those inconvenient things called scientific facts.

In 2006, the parallel universe in which all outcomes are based solely upon their political implications was not as well-developed as it is now, especially on university campuses. One of the sad ironies of the Duke case was that instead of forcing people to be circumspect when accusations of sexual assault and rape are thrown about, the American left has doubled down on its efforts to make sure that innocence is not a defense. Instead of being something that served as a reminder for people not to rush to judgment in the wake of such accusations, the Duke Lacrosse Case became the catalyst for the left’s campaign to ensure that targets such as Seligmann, Finnerty, and Evans would not slip through their fingers again.

That parallel universe almost was complete in 2014 when Sabrina Erdely wrote “A Rape on Campus” for Rolling Stone, and the immediate reaction was sadly predictable. Demonstrations exploded on the University of Virginia campus and the university’s administration suspected all fraternity and sorority activities, with the fraternity where the alleged gang rape occurred was singled out for “special treatment” by students and faculty.

Erdely and Rolling Stone, however, had overshot their hands. The story was so full of holes and so outlandishly false that all of the Usual Suspects had to run for cover. “Jackie,” the so-called victim, and Erdely had put together one fabrication after another, and even the academic left could not ignore the hard facts which totally discredited the article. Shortly after it appeared in November 2014, Rolling Stone had to retract the article and got Columbia Journalism Review to do a “What Went Wrong” review to help the magazine save face.

This outlandishly-false article, however, did not deter the left, just as the Duke case only energized the left to become even more outrageous. As what only could be seen as a response to Duke (as Indy Week had noted), the Obama administration imposed a new policy on colleges and universities in 2011 that required them to change how they dealt with alleged sexual assault cases on campus. Using bogus “one-in-four women are raped on campus mantra, Obama’s Department of Education demanded that higher education institutions impose new policies that, in effect, were aimed at adjudicating claims of sexual assault in campus critics like KC Johnson and others have labeled kangaroo courts. The Obama administration made it clear that it wanted more males found guilty of sexual assault, and if institutions did not comply, they would be in danger of losing federal funds, which essentially meant that students would lose most of their financial aid and student loans if they attended the college or university being targeted.

While we are speaking of administrative hearings versus the criminal charges in the Duke case, nonetheless, the development is ominous because the Obama policies were based upon overturning the legal doctrine of due process of law, and we already see that mentality bleeding over into the courts and into law journals which influence current and future prosecutors, defense lawyers, and judges. Congressman Jared Polis from Colorado declared that there should not even be hearings on campus , once an accusation is made. Instead, he argued:

It seems like we ought to provide more of a legal framework then that allows a reasonable likelihood standard or preponderance of evidence standard. If there’s ten people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all ten people.

Polis made that statement at a congressional hearing, and following his comments, the room erupted in applause. After a woman makes an accusation, why even bother with an investigation? An accusation is proof of guilt, and even if it is 80 percent unlikely that the accusation is true, authorities should treat it as bedrock truth, something that apparently has wide support with the left.

Lest one think I exaggerate, Judith Shulevitz writing in the New York Times notes that there is a growing movement among American lawyers and law schools to apply the same accusers-always-tell-the-truth to criminal law as well as civil law and administrative procedures, along with vastly expanding the criminal code to include brief hand-holding as sexual assault, that proposal coming from the American Law Institute.

As I pointed out earlier, the popular narrative about the Duke case is that “the system worked” and that good police work and proper investigations ultimately exonerated three falsely accused male college students. However, the real narrative is that the left sees the three young men as people who slipped through their fingers, and that can never be allowed to happen again. Soon enough, if the American left has its way, politics and only politics will determine what is a false accusation of sexual assault, and what is true. That is not something that will happen in a dystopian future; it is happening now and we are seeing it in real time.


Contact William L. Anderson

William L. Anderson is a professor emeritus of economics at Frostburg State University in Frostburg, Maryland.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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