Briefly, On Football’s Culture and Rape

Steubenville

On Monday, the Notre Dame Fighting Irish will compete for college football’s national championship. This is the kind of thing that gets sportswriters in a tizzy. If you’re of a certain Age, Notre Dame is what college football is all about, so the school’s sudden (and entirely unexpected) reappearance in the sport’s championship is a big deal. So big, in fact, that nothing else matters.

Part of the reason that it’s a big thing is that, as recently as a few years ago, Notre Dame was a football backwater, a school who college football fans rightly saw as receiving much more respect than it actually deserved. Part of this was because of the team’s poor play; part of this was because of the school’s tradition. That tradition condescends to its opponents, insisting that unlike those other schools, things are done right at Notre Dame. But because college football is a thoroughly dirty sport – no reasonable person pretends otherwise – Notre Dame’s detractors have always assumed that the school engaged in as much chicanery as anywhere else.

Chicanery though doesn’t begin to accurately describe Notre Dame in 2010. One of the team’s student assistants died. He had been sent up a scissor lift in high winds to record the team’s practice. The winds blew the scissor lift over and Declan Sullivan died. We were instructed by the school to believe that an accident had occurred, nothing more, despite the obviously dangerous situation that Sullivan’s bosses insisted upon. Maybe that’s a situation that deserves the benefit of the doubt; maybe nobody realized that scissor lift in 60 mile-per-hour winds is incredibly dangerous.

But what’s to make of what happened to Lizzy Seeberg? In 2010, she accused a Notre Dame player of raping her; a week later, she died by her own hand. Between the assault and her suicide, one of the accused player’s friends warned her not to, “…do anything you would regret. Messing with Notre Dame football is a bad idea.” And Notre Dame’s response? Well, it responded much like the Catholic Church that Notre Dame is so proudly associated with; Notre Dame didn’t so much as investigate the accusation as drag Seeberg through the mud while acting like nothing had happened. Here’s Deadspin:

The smear about Seeberg was that she was “a troubled girl” who had “done this before” (according to friends and family members of a “long-serving trustee” at Notre Dame). She was “the aggressor” (according to the accused player’s lawyer, a Notre Dame alum). She was “all over the boy” (according to a “top university official” at Notre Dame). After reporting the alleged assault to campus police, Seeberg was told by a friend of the football player: “Don’t do anything you would regret. Messing with Notre Dame football is a bad idea.” No charges were filed. Notre Dame police didn’t interview the player—who was never disciplined by the school or the football program—until five days after Seeberg killed herself. Later, they told the family they weren’t sure when they could follow up. “They said they were pretty busy,” said Lizzy’s mother, Mary, told Henneberger, “because it’s football season and there’s a lot of underage drinking.”

The Henneberger referenced is Melinda Henneberger, a Notre Dame graduate herself. She did more reporting for the National Catholic Reporter, reporting which seemed to indicate that Seeberg probably wasn’t the only person experiencing the team’s (or the school’s) darker side. That darker side refused to investigate the player Seeberg accused until 15 days after the assault was reported, or five days after Seeberg killed herself.

There’s a funny thing though about Notre Dame’s “investigation” into the assault. It looked then an awful lot like a higher profile investigation looks today. That investigation was the one done in Steubenville, Ohio, after a young woman was gang-raped by local high school football players. As with Notre Dame’s, the investigation was…well, let’s say less than stellar and then flesh that idea out.

There’s this, for instance:

In one photograph posted on Instagram by a Steubenville High football player, the girl, who was from across the Ohio River in Weirton, W.Va., is shown looking unresponsive as two boys carry her by her wrists and ankles. Twitter users wrote the words “rape” and “drunk girl” in their posts.

It took a local blogger, Alexandria Goddard, publishing details of the assault before anybody official in the town would pay any attention.

Before many of the partygoers could delete their posts, photographs or videos, she took screen shots of them, posting them on her site, Prinniefied.com. On Aug. 24, just after the arrests, she wrote on her site that it was “a slam dunk case” because, she said, Mays and Richmond videotaped and photographed their crime and then posted those images on the Web. Goddard pressed her case.

“What normal person would even consider that posting the brutal rape of a young girl is something that should be shared with their peers?” she wrote. “Do they think because they are Big Red players that the rules don’t apply to them?”

So that was where things stood a few days ago. (Reading through that makes things bad enough.)

Then, more disturbingly, this video of a former Steubenville baseball player being less than charitable about the victim even as she’s in the other room, being assault surfaced. (This is not a video I would advise watching; the quoted sections are bad enough):

At one point, a voice belonging to someone off-camera says, “Trent and Ma’lik raped someone.” The two boys charged in the rape are Trent Mays and Ma’lik Richmond. It’s unclear how many other Steubenville students are in the room at the time, although at least two of them, who remain off-camera, admonish Nodianos for making light of a rape. “What if that was your daughter?” one of them asks. Nodianos replies simply, “But it isn’t.”

The video emerged after an element of the hacker collective Anonymous – a group called KnightSec – got involved as a protest against what it saw as the unacceptably weak official response. That response involved the following punishments:

-The two assailants have been charged. They were also suspended from football for the year.
-Others at the party – including three who testified about the crime, but did nothing themselves to intervene, and may have been amongst those who pushed the story onto various social media outlets – received no immediate punishment, and were only later suspended from football for the season.

KnightSec has begun the process of heaving much of the town under the bus using Anonymous’s famed document dumping technique. Here’s everything released so far. It paints a picture of a small town in which everybody with power knows everybody else with power. It also suggests that those on the right side of that power structure might have received preferential treatment.

And here’s where we stand now. There are rumors that the team’s (legendary) coach, Reno Saccoccia may resign; he, after all, didn’t punish any of his players in the aftermath of the surfaced photos, claiming that his players didn’t think they’d done anything wrong. Investigating police departments are howling about crimes committed by…KnightSec and Anonymous, which seems like the sort of thing that people fundamentally unconcerned about the rape itself might do. Anonymous, predictably, hasn’t exactly offered to back off. Meanwhile, Occupy Steubenville has been going all day, including an interaction between the investigating Sheriff and somebody in a Guy Fawkes mask. The city of Steubenville, overwhelmed by the world’s criticism at what looks to be a coverup of the crime, has set up a website absolving itself of any responsibility for anything.

There are a lot of people who object to football for its on-field violence. I don’t disagree. It gets harder and harder each week to be a fan when we know more and more about what their lives will be like after they’ve long since stopped playing the game. But the sport’s culture is perhaps more concerning, one in which the game’s importance is elevated over everything else, treated as though what happens during those 60 minutes matters more than what happens at any other time.

On Monday night, the player accused of raping Jill Seeberg, a player who was never charged with a crime, will stand either on the sidelines or get into the game. Seeberg, of course, will still be dead. Henneberger, one of the reporters who looked into Seeberg’s allegations, won’t be cheering. Neither will another national reporter, Gregg Doyel; he seems unnerved by the situation. Meanwhile, in Steubenville, it takes online vigilantes to do the work police should have been doing in the outset.

At some point, football and its culture and the idea that nothing else matters must change. I used a period there, but maybe a question mark makes more sense. Because while it ought to change – while the tolerance of these crimes ought to be chased from the culture forever – there’s no way of knowing whether it will. But revelations like what we’ve seen at Notre Dame and what we’re witnessing in Steubenville aren’t going to disappear in a digital age; they’re only going to get bigger and more horrifying. We’re not going to know less in other words. We’re going to know more. It seems then unavoidable that a culture in which nothing is more important than those 60 minutes will have to adjust accordingly.

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71 thoughts on “Briefly, On Football’s Culture and Rape

  1. It’s also disturbing at how casually this stuff gets thrown about by the media.

    Most recent example I can think of was how two UT players were “suspended” before their bowl game.

    The media then went back to breathlessly reporting about the gameplan….rather than the allegations that the rule infraction was for sexual assault.

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    • Well, ya’ know, those players are making the NCAA, the universities, ESPN, and other cable channels lots of money. The sophomore who had the temerity to be attractive to a group of football players and say no? She isn’t going to make those groups of people any money.

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      • One wonders what it would be like if there was not money to be made through professional sports* and it was strictly an amateur thing. No Division I, No Pro Teams, No ESPN, merchandisizing, deals, etc.

        *There have been professional sports for most of human history probably. The Gladiators were professional sportsmen in a rather dark way and obviously not for their own profit. You can also probably find examples from the Middle Ages and Renaissance (though Bear Baiting and Cockfighting probably do not count). There were certainly professional boxers during the 1700s (when it was a bare-knuckle and bloody sport). Though modern professional sports as we know them as probably around 150 years old.

        So banning pro-sports and making big money off sports is not going to happen. Prohibition never works. But you are right that all the Powers that Be have too much incentive not to support the victim and something needs to be done about that.

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          • Agreed.

            That being said, I am not sure that college athletes should be paid. Honestly many or possibly even most of them do not have the grades for college admittance in the first place. I’ve read some articles in the Chronicle of Higher Education about a community college in nowhere Oklahoma that has basically become a grade academy for college athletes. The classes sounded like jokes.

            You also count ban the broadcast of college sports because that would violate the First Amendment. I wonder if you could make them illegal though. Probably not because of the Iron rule of prohibition.

            My personal ideal would be no-Division I level mania for sports and the professional sports teams forced to have farm leagues/minors for the development of professional athletes. Someone else suggested letting them just major in “sports”, he came up with a course to make it sound more academic but the problem with his program is that it was too academic. The athletes would probably fail some of the more academic courses that were part of the program to make it look academic and just like a surrender.

            The problem is that we like the narrative of college players who go onto the majors for some reason more than we like the idea of sending an 18 year old kid straight to the pros or to the farm leagues for a while. It has been a story for decades if not over a century.

            Out of curiosity, what are college sports like in Japan? I know high school baseball is very big. I know Europeans look at university sports in America and think we are bonkers. But it strikes me that Japanese universities might have a similar status for their college athletes. Is there a popular narrative for someone to play for Waseda or Tokyo and then go to the majors in Japan? Complete with draft pick, etc. Do you have any other big college sports besides baseball?

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            • Rugby’s a pretty big sport, but admittedly nowhere near baseball. Soccer is also big at the high school level, but university level has basically died since the J-League’s feeder clubs have taken all the developmental functions that universities used to do.

              And yeah the “Six University” system in Japan for baseball is HUGE. But it’s not monetized nearly to the same extent as NCAA football. The thing that’s comparable in terms of boosters and unhealthy financial obsession would be high school baseball and the koshien tournament. I honestly think the “amateurism” crap in baseball is actually retarding the sport’s development in Japan, but that’s something bound for its own post.

              There’s less of a tendency for it to breed a culture of BMOC, but it still happens.

              I do think college athletics would be better if athletes were paid and treated essentially as other university employees like AIs or TAs and required to basically be judged on the same ethical standards.

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            • >>>I’ve read some articles in the Chronicle of Higher Education about a community college in nowhere Oklahoma that has basically become a grade academy for college athletes. The classes sounded like jokes.

              Not unusual. In fact it’s rather common. Many “student-athletes” will attend community colleges for a year or two to get the GPA necessary to make it in to Big State U. I lived in a small town where a community college did such a thing. Sent 3 or 4 kids to the University of Texas after spending a year on the basketball court of Hicktown CC. And surprise, surprise, the local community college coach was subsequently added to the UT staff as an assistant coach. Must either be coincidence or a small world…

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            • You could probably easily ban televising college football from public universities. Make a law that no public schools may sign TV rights contracts. No TV, no big money. Without public universities you have USC, Stanford, ND, BC and just a handful of other teams. Not enough for the type of money today.

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  2. I don’t really understand the Friday Night Lights and Division I atmosphere that seems to always allow these things to happen.

    This is not to say that other places do not have problems with rape. Amherst College had a rape scandal this year. However, I am always struck by the Friday Night Lights atmosphere.

    In the Ohio case, the football team seemed to be the only thing that the town had going for it. It was a dying industrial town with huge problems of poverty and drug abuse according to the Times story. However, it somehow scrapped together the money to build a football stadium that can hold 10,000 people. What kind of high school needs that kind of football stadium? This is not a rhetorical statement. The NY Times article also mentioned that many of the games had tailgating parties that start at 9 AM when the games start at 7:30 PM. I think I also read that the high school has 19 football coaches (the article did not say whether they were full-time or parttime or had other responsibilities in the school district.)

    Pardon me but this is rather insane. I can understand that a small town especially one with a dying or dead economy can want something to cling onto. An event that the entire town can rally behind to provide a sense of community, hope, and something to cheer for. But it strikes me by spending so many resources on so many people seems wrong-headed still. Surely the resources would be better spent on both vocational and career track education. Most of their players will probably not go pro or even college.

    I think it is making these boys and young men into Titans on campus that helps encourage the culture and violence.

    I should add that I don’t come from this culture. I grew up in a well to-do suburb and attended a high school with good academics and sucky sports teams. We had football, basketball, and baseball teams but it was not a big deal to attend the games. I only went to football games because I was in band and needed to play. My college was Division III and had no sports teams.

    This is a sincere question but can anyone justify the Friday Night Lights atmosphere of towns like Ohio or at Division I schools like Notre Dame? Especially for the high schools. Is there any argument to be made that this is not a misuse of educational resources and the culture is good?

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  3. This is possibly and/or probably not the place to bring up these things but they always come up with stories like this especially when people defend the defendants/alleged defendants.

    1. An accusation/indictment is not a conviction. In the Ohio case, the evidence out already is damning but I wish people could remember more often than an accusation/indictment is not a conviction or proof of guilt. There are plenty of false convictions in the world.

    2. People always show shock when friends and family members defend people accused of horrible crimes in the media. But isn’t this what we would want our families to do if we were accused of crimes? Do people really want their friends and families to drop them like a hot potato just because they were accused of a shocking or notorious crime?

    None of these questions are to imply that the men in these cases are innocent but they are philosophical and important questions none-the-less connected to these situations. I also firmly believe that the friends and family can support the defendants without destroying the reputation of the victim.

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    • 1. Accusations where the evidence appears to be overwhelming and yet the local constabulary is capable only of charging the two guiltiest parties looks an awful lot like football players getting preferential treatment. I think highly of your position to move cautiously, but not to the point of doing nothing.

      2. Defending family is one thing. Covering up crimes is another. Surely it’s possible to do the one without doing the other?

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      • I agree. In this case, the evidence that Anonymous came up with his very damning and there certainly does seem to be a coverup and preferential treatment (hence my other posts here).

        You are right on the second point. I heard that the county prosecutor recused herself for various reasons or was forced to recuse herself because of connections to the time. I did not hear anything about a cover up.

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  4. As a Canadian, this is one of those times that I find Americans completely bewildering. We don’t really have much in the way of “college sports” up here. Partly (I’ve been told this by an aquaintance’s husband, who’s a professional sports writer) because we have a strong amateur sports establishment outside of post-secondary education, and partly because there just aren’t that many sports that get us all riled up. Aside from hockey, of course, but even there it’s the amateur leagues that get the attention.

    I think it’s dangerous to treat young males with so much reverence and shower them with so much glory for sports – it turns their heads and encourages reckless stupidity and bravado. They’re Masters of the Universe: immortal, unchanging, invincible. Not a healthy emotional development, I think.

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  5. Going in a weird direction… What do we make of the fact that Malik Richmond, who appears to be the lone black suspect, remains the lone person facing charges in Stuebenville? I’m tempted to go back and finish reading JHG’s exchange with Jaybird.

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          • Please do, I am not seeing that anywhere. Everything I see, as of yesterday, indicates Mays actually has an additional charge against him, for taking the photographs; but not that the rape charge against him has been dropped.

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            • You are right that the rape charge remains, but has been shifted to the juvenile court system, which is also true for Richmond. I was skimming the article and caught the first sentence regarding Richmond but not the rest. My apologies for jumping to a conclusion. Anonymous appears to be using an odd definition of “charged”:

              “Trent Mays: Was a sophomore and a quarterback for the Big Red football team at the time of this brutal crime in August of 2012. He was originally charged as an adult with rape and kidnapping, and held in custody. He has since had the kidnapping charges dropped, the rape case moved to the juvenile court system – and has been released on bail. Trent Mays is the son of Brian Mays former football coach at Cadiz and Indian Creek who was removed from Indian Creek staff for having girls alone in locker room with him.

              Malik Richmond: The only other member of the football team to remain charged. Richmond was also originally charged as an adult with rape and kidnapping, and held in custody. Like his co-defendant Mays, he has since had the kidnapping charges dropped, the rape case moved to the juvenile court system – and has been released on bail.”

              http://localleaks.blogs.ru/2013/01/01/steubenvillefiles/

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  6. Investigating police departments are howling about crimes committed by…KnightSec and Anonymous, which seems like the sort of thing that people fundamentally unconcerned about the rape itself might do.

    Every time Anonymous or Wikileaks are involved in breaking the secrecy on some sort of documents showing coverups and fraud by authorities, the response of the authorities looks like a “and I would have gotten away with it too, if it weren’t for you meddling kids” followed by a vow to punish the meddling kids for proving that the authorities were engaging in violations of the law…

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    • There are stories of wrongful accusations in all crimes and no doubt that wrongful convictions and false accusations hurt everyone severely. They hurt the wrongfully convicted and falsely convicted, they hurt the victims of crimes because it spreads doubt and distrust and makes it harder for them to get justice.

      However that does not mean that all accusations are false. At the very best, the videos and other stuff unearthed by Anonymous show a bunch of callous young men. At very worse, it shows a very bad coverup and commission of a crime.

      And I am generally pretty pro-Criminal Defendant and Criminal Defense lawyer (though I don’t want it to be my practice in law).

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      • Everything I read about this case looks really bad for the defendants. And I am kind of predisposed to mistrust jocks (why, yes, I *was* shoved into a locker – why do you ask?). In my experience, they often were a toxic combo of arrogant entitlement, ego and testosterone-fueled aggression.

        But the Duke lacrosse thing looked really bad for the defendants too – until it didn’t. So I am cautious.

        If the Sandusky thing has taught us anything, it’s that it’s the *coaches* we need to keep an eye on.

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        • “Everything I read about this case looks really bad for the defendants. And I am kind of predisposed to mistrust jocks (why, yes, I *was* shoved into a locker – why do you ask?). In my experience, they often were a toxic combo of arrogant entitlement, ego and testosterone-fueled aggression.”

          This is really happens? I was far from popular in high school but was never really beat up either. I always thought the shove-in-the locker thing was something that movies came up with.

          “But the Duke lacrosse thing looked really bad for the defendants too – until it didn’t. So I am cautious.”

          This is true for most wrongful convictions.

          Criminal Justice is tricky. Very tricky in maintaining a proper balance between the rights of the accused without damning while still being kind and compassionate to the victim.

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          • This is really happens? I was far from popular in high school but was never really beat up either. I always thought the shove-in-the locker thing was something that movies came up with.

            There were a number of people who were threatening to me and my friends. The worst? The worst were almost never the jocks. If anything, athletics seem to give them something to color inside the lines for. Or maybe it gave them an alternate way to prove themselves. Or maybe it just gave them a subculture that kept me out of their way.

            But by and large, the jocks were more inclined to do their own thing than their similarly athletic or well-built counterparts.

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          • Re: the locker thing, that was mostly a joke (though I had an interaction once with one in which I was shoved “into” a locker in the sense of “being shoved up against a closed one”, in the same sense that a hockey player is checked “into” the boards). I should also clarify that I know full well that my description is a stereotype, and in fact one of my two best HS friends was a big jock, and just the nicest person you can imagine.

            Saved my life, maybe; just saw I needed a friend when I really did, and took it upon himself to be that friend, despite the fact that a popular dude like that didn’t need any more friends, particularly not a scrawny weirdo like me.

            But there were still plenty I didn’t like, and for the reasons I state. Plenty of them were like that, and weren’t particularly nice to girls, or anybody really.

            My point was just intended to be that these are exactly the sorts of accusations that play to my own prejudices and stereotypes, and so I need to be extra cautious about letting that drive my judgement.

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          • I knew a kid who got thrown against a locker. He deserved it (and no, I don’t know what he said, but… I knew the kid. pushed boundaries).

            Another kid screwed off in chem class. The football coach threw him against a locker right outside the door.

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      • Also, re: false accusations

        Not saying these are false; but there was a discussion a while back in which I was asked whether false rape accusations merited any different consideration than false accusations of any other crime, and I think they sort of do.

        Because if I am accused of stealing property, and that turns out to be false (or even true) it just doesn’t as seriously affect the way people will treat me the rest of my life. People will get over it, sooner or later. But we treat sexual offenders (with somewhat good reason) as untouchables (pun only somewhat intended) for life. My sense is that our moral revulsion and suspicion, while appropriate for those that truly did the crime, is unique/doesn’t abate very readily in cases of sex crimes, and this is catastrophic for those falsely accused.

        I don’t know if people even treat a convicted killer with the same moral revulsion; once he serves his time, he may be able to convince us he was falsely accused; or that prison reformed him; or that there were special circumstances for the killing.

        But an accused sex offender (again, largely correctly) will be “tainted” for life in a way that it seems other criminals are not, even if the charges are dropped, the suspicion and revulsion remains, falsely accused or no.

        So of all crimes, I think moving cautiously is not a bad idea. Of course, this can then look like foot-dragging or coverup to the victims. So maybe there is really no good solution.

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        • You’re proposing raising the stakes for the victim in a scenario in which most victims ALREADY hide from public view and don’t go to the police. It seems quite clear that at least one victim in this very case was already talked out of pressing charges, ostensibly by a female DA who essentially said that it wouldn’t be worth it.

          I don’t see what good comes of saying, “Well, for most charges, we’ll treat a false positive this way, but a false positive rape charge will result in more serious retribution for the accuser.” Except if the point is to make it even more difficult for victims to come forward. Which I’m sort of assuming ISN’T the outcome you’d want.

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          • Yeah, I allude to that in my closing sentence, and I am not making any legal “proposal” per se, just one to maybe be applied in the court of public opinion, you know? Sex crimes just have a weird dynamic that can lead to perverse outcomes.

            Like, in the Duke case, Mangum never faced ANY charges for making false accusations – accusations that could have sent people to jail for a long time, undoubtedly cost great sums to fight, had the potential to inflame racial tensions, and no doubt to some degree still dog the accused, even though the accused eventually got the lucky and unusual break of being declared “innocent” (not just “not guilty” or “charges dropped”) by the NC AG. That outcome doesn’t seem totally right either, does it?

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            • Given how badly rape cases are prosecuted, and given how rarely women come forward to press charges, introducing a special level of punishment into the system for false accusations in rape cases only strikes me as dangerous.

              After all, an “Innocent!” verdict isn’t necessarily the same thing as the individual not having committed the crime; proving these things can be terribly difficult.

              I would just want to avoid anything that further stacks the deck against the victims of these crimes.

              Your notion then that there is no good solution is probably the correct one.

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              • The state NEVER declares someone “innocent” (this is not even a “verdict”) – it’s always “not guilty”/acquitted of charges, or charges dropped (as you say, rape’s a hard crime to prove).

                That the North Carolina AG, no less, took this really, really unusual step in this case – he came out and declared the players “innocent” – is an indication of how flawed the charges/prosecution were there.

                And I don’t want a “special” level of punishment; but fraud is fraud, right? Shouldn’t Mangum simply have been charged with making clearly false accusations – accusations that cost the defendants and the citizens of NC much, and had the potential to cause them all still more? How do we deter false accusations, since presumably we don’t want these? Normally we do so by imposing some penalty on the defrauder.

                If I gave you my car, then we had a falling out and I went to the police and told them you stole it, shouldn’t I face some sort of penalty when the truth comes out?

                And this sort of accusation is nowhere near as serious socially. Even if you DID steal my car, you really won’t be a social leper for the rest of your life over it.

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                • I think the question is one of priorities. Are we assuming that false accusations are a regular and routine thing? My suspicion is that they’re not. But more to the point: the people that ought to face charges and retribution for false charges are the prosecutors, not the people who make the false accusations. After all, it’s the prosecutor that decides to bring the case.

                  But even then, we can imagine prosecutors doing generally what they did in Steubenville: talking victims out of charges as a means of protecting the guilt. The entire situation plainly benefits rapists and not the victims, and surely we can agree that justice ought not look that way.

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                  • There are two different types of wrongful convictions:

                    1. One where it is a false allegation and no crime occurred.

                    2. One where a crime did occur but the police and prosecutors go after the wrong person.

                    I think number 2 is much more common than number 1. Number 2 probably happens more than any society would want to admit. How many times has the Innocence Project been able to exonerate someone who lost decades of their life to death row or prison? Hundreds? Thousands? In one of the most infamous Supreme Court cases over the past few years, the Supreme Court granted immunity from tort to DAs for going after the wrong man in a capital murder case and then covering it up for years/decades. This is the case the cemented Justice Thomas as a cruel and bitter man to many liberals.

                    http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/supreme-court/the-myth-of-prosecutorial-accountability-after-connick-v.-thompson:-why-existing-professional-responsibility-measures-cannot-protect-against-prosecutorial-misconduct/

                    The Central Park Jogger case is an example of it happening with rape.

                    There are examples of number 1 including for rape but it is hard to come by statistics on how many people are accused of crimes that never happened. Kohole points to one story. The Duke Lacrosse team is another example.

                    The Duke Lacrosse team is a rare example of a prosecutor getting disbarred for prosecutorial misconduct. And the Duke DA probably only got disbarred because he went after wealthy white college students. If it was the basketball team, I doubt we would have been disbarred. Here is another example of a prosecutor getting in trouble. This time there might have been no crime:

                    http://www.veritasinitiative.org/news/california-state-bar-charges-santa-clara-prosecutor-with-misconduct-disbarment-possible/

                    I urge anyone who wants justice and compassion for the victims of crime especially rape and other violent crimes that wrongful convictions are bad in both cases but especially false accusations are very bad. A False Accusation where no crime occurred spreads doubt and disbelief and makes people more prone to think that a victim is lying. Wrongful Convictions where a crime occurs but the wrong person is punished are bad because even if a person is exonerrated, the victim must go through the pain of another criminal trial and the wrongful defendant lost years if not decades of their life. Can you imagine losing 30 years of your life to prison for a crime you did not commit? There was an article in the Texas Monthly this year about a man who was just exonerated in the murder of his wife. His son grew up thinking that he murdered his mom. How horrible is that? Pretty damn bad.

                    “Injustice anywhere, threatens justice everywhere.” This is more true in criminal law than anywhere else. Of course the question of what is justice is unsolvable and open to constant debate. But it should be a no brainer than a wrongful conviction/false accusation can do irrepairable damage to justice.

                    Again, I am not saying that the defendants in this case are innocent. The biggest problem lies not with the victims but largely with the fact that prosecutors are elected and every incentive they have is on getting a conviction. Not convicting the right person. In my ideal world, DAs would not be elected. I would like other incentives to prevent just going for max number of convictions.

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                  • Lots here, let me take piece by piece (and again, please allow me to make it clear that I am not in favor of making it any harder for rape victims to obtain justice, and that historically the system has been against them, and this may be a problem with no good solution):

                    Are we assuming that false accusations are a regular and routine thing? My suspicion is that they’re not. – Frankly, I am not sure how we know (and my brief looking seems to confirm, no one really knows). It’s the flipside of the exact same “he said/she said” characteristic of the crime that makes it so hard to prosecute that potentially makes a false accusation an easy weapon to hand for someone out for vengeance/money or just plain mentally ill/mistaken (and as I note,the accusation *itself* is almost a sufficient *social* weapon to destroy someone’s life, regardless of whether a conviction is ever obtained). Modifying my car example, in theory one of us has the title; so we can, with some certainty, adjudicate who is telling the truth. In a rape, there’s no paper trail; in fact, as this current case shows, once the victim takes a shower, most evidence that an act even occurred at all is gone (and even if it remains, we still don’t know if the act was consensual).

                    the people that ought to face charges and retribution for false charges are the prosecutors, not the people who make the false accusations. For all criminal cases, or only rape? Because I don’t think this is how we handle most things. If we let people defraud with complete impunity and no consequences on them for doing so, can’t we expect more of it? If you mean only rape, aren’t *you* the one asking for special consideration, and not me?

                    we can imagine prosecutors doing generally what they did in Steubenville: talking victims out of charges as a means of protecting the guilty. I can also imagine them talking them out of them because they know the evidence just isn’t there to obtain a conviction – and we want them to do so, don’t we? Isn’t that how the system is supposed to work, for efficiency’s sake and “innocent until proven guilty” and all that? Again, it’s the flipside of Nifong, who went forward in the Duke case despite the clear problems. How do we distinguish between a good prosecutor, and one who is covering for the guilty; or conversely, out on a witch hunt? To me, this goes back the previous point; the way we do that in part is making it so the prosecutor doesn’t bear all responsibility alone – as incompetent as Nifong was (he got disbarred over the mess) false accusers have to bear *some* responsibility for making false accusations; there must be some cost (though I am OK with a high bar for showing that an accusation is clearly false, like Mangum, rather than just “can’t be proven with certainty”).

                    The entire situation plainly benefits rapists and not the victims, and surely we can agree that justice ought not look that way On this we agree. So if I haven’t said it enough, let me say it one more time: it is not my desire that anyone who has already experienced the horrible experience of rape, experiences any further difficulty in obtaining justice.

                    This occurred to me: where on the prison “totem pole” do rapists fall? In my understanding, there is a pecking order, and for example child molesters often must be separated from the general population for their own safety. Do rapists fall somewhere down near that same bottom of “scum of scum”? If so, then this not only supports my contention that the social stigma against an accused sex offender is sort of uniquely strong (and again, with good reason); but that a false conviction could well be akin to a death sentence for one.

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                    • Glyph,

                      1. My assumption is that coming forward to say that a rape has occurred in it of itself has a particular social cost. My assumption then is that if somebody is willing to do so, they’re almost certainly telling the truth (even if there are high profile examples of where, in fact, the truth wasn’t told). After all, the victims of rape are routinely doubted, questioned, criticized, and slandered.

                      2. For all criminal cases. Nothing would be a greater staunch against the false charges that we routinely see the Innocence Project getting involved in than harsh retribution upon those who put the innocent in jail. But as it stands, individual prosecutors cannot be sued, individual police officers cannot be sued, and seemingly nobody anywhere is held responsible for the ought-to-be-a-crime of putting an innocent person behind bars.

                      3. The risk we take with the proposal I made is one where prosecutors avoid cases that hover on the margins and I agree, that could be awful. But let’s not pretend as though rape cases are taken as seriously as they should be; look at the way Notre Dame’s police responded to Seeberg’s allegation. And then there’s this in Texas: http://www.nytimes.com/2013/01/04/us/hefty-cost-to-testing-texas-huge-backlog-of-rape-evidence-kits.html?_r=0 What’s to be made of DNA evidence not being aggressively pursued?

                      4. Yes, an innocent individual being convicted of rape would be terrible. Nobody is going to bat for that. But isn’t there a middle ground between where we are right now – in which victims are doubted first and only barely believed, sometimes, later – and a scenario in which innocent individuals are going to jail by the score.

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                    • Sam:

                      1.) These assumptions are OK as far as they go, except for one fact: If I am knowingly lying, what do I care that people are accusing me of lying? I presumably am willing to take that risk, to have made the false accusation in the first place – and besides, I AM LYING. So the social stigma that is admittedly terrible in the true cases, is completely irrelevant in the false ones.

                      2.) This is a good point. Prosecutors in particular have near-godlike powers and immunities, and this must stop. I am not totally convinced that letting fraudulent accusers off the hook entirely won’t result in a flood of false accusations of crimes of all kinds entering the system, and as someone who believes pretty strongly in personal responsibility I don’t like the idea that we are not holding the individual who made the false statement responsible for same, but this is a perspective at least worth exploring and maybe implementing at least in part.

                      3.) Incompetent or malicious prosecution (treating accusations with less, or more seriousness than they deserve) needs to stop, as per 2.

                      4.) I don’t know exactly where the middle ground is. Like I said to start with, sex accusations are just uniquely problematic given current conditions. I have a son, and a daughter. A false accusation of rape committed against my son seems to me to be as potentially injurious to the totality of his life, as an actual rape committed against my daughter might be to hers (both could suffer lifelong damage from these malicious acts, IOW – and at least she will be viewed by with sympathy some in society as a crime victim, while he will forever be viewed by many as a crime perpetrator, and treated as an outcast from polite society). Crazy, maybe wrong (I suspect I will get pushback here, but so be it), but that is how it seems to me. So, I want to see someone who would (intentionally) falsely accuse my son, smacked just as hard as someone who would rape my daughter.

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                    • Glyph,
                      all due respect, but being called a rapist is not the same as being raped. It’s really, really not.
                      And if your son should have the illfortune to be raped, I hope you’ll start to know the difference. (yes, you started the gendering. Do you think your daughter would be so societally rejected if she was accused of rape?)

                      Most people who make an illfounded accusation of rape do it in the heat of the moment, I’d wager. Very, very few take it to the courts. (Big Ben’s accuser? had something terrible happen to her. they said it wasn’t rape, but it was still Very Bad.)

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                    • Kim, I suspected some pushback. But I took care not to say that the acts were the same (obviously, they are not) but that the duration and severity of the fallout could be lifelong and huge in both cases.

                      The gendering was simply an attempt to make the point pithily, no other reason. I do not think that rape victims are treated with the same stigma as they used to be (this is very much to the good). It used to be that a woman that was raped, was seen to have “lost her virtue”, and her social standing was completely destroyed.

                      Taking that Scarlet “R” off of her chest was a good thing; but we should also take care not to incorrectly affix it to men’s chests either.

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                    • Glyph,

                      I would simply ask that you consider the societal response to rape versus the societal response to an individual falsely accused. The victims of rape are often told that they did something (ANYTHING!) to deserve what happened to them: they dressed the wrong way, they didn’t say “No!” in the right way, they shouldn’t have been there in the first place, etc. That’s actual victims of actual crimes being told that they essentially brought the crime upon themselves and, implied if not stated explicitly, is that what happened is probably the victim’s fault.

                      Meanwhile, a false accusation can be damning, for sure, but I seriously doubt those students at Duke are struggling with the consequences now; my guess is that they’ve got jobs and opportunities, that their entire life hasn’t been changed forever as a result of what happened.

                      Which isn’t to dismiss the seriousness of a false accusation; there are horrific stories. But what troubles me is the idea that we need to tackle both simultaneously, as if there are an equivalent number of false accusations and actual, bonafide rapes. I’m not saying you’re making the claim, but given how often we have to discuss the possibility of the false accusation, it seems as though society pines for this discussion more than any conversation of how we might do better by rape victims.

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                    • Sam,

                      Thank you for this:
                      given how often we have to discuss the possibility of the false accusation, it seems as though society pines for this discussion more than any conversation of how we might do better by rape victims.

                      It’s a really important point, particularly since I know very many women who’ve been raped and don’t know a single woman who’s reported the rape; anecdotally, I believe the vast majority go unreported due to the horror or re-victimization that goes along with filing a charge.

                      But you bring up something really crucial — why do we, society, pine for the discussion of false accusation? I’d guess it’s because most men have concerns that their behavior, which to them seems normal, might somehow unwittingly trip over the scale; that most men are also relatively decent people, and cannot imagine how there’s as much rape as there is.

                      I do know one thing: seeing the men out protesting in India has given me a sense of hope. Men can hold men responsible; men have the power to change rape culture.

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                    • Zic,

                      I’ve always meant to write a serious post – although I’m not ideal for this, given my general refusal to take anything too seriously – about the Just World Phenomenon, which is what we as human beings do to avoid how awful the world can be. It involves us tackling problems we imagine ourselves able to tackle while ignoring the ones that we can’t, or worse, shifting the blame for their occurrence onto them. So when we think about rape, for example, we hear so many people argue that the victim must have done something wrong; we can’t tackle a (sub)culture that rapes, so we shift the blame to the victim. But false accusations we CAN tackle: with laws and punishments and retribution. So we focus more on that.

                      Please note, I’m not accusing Glyph of this. Rather, it is a societal (and probably political, by extension) failing.

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                    • zic,
                      most rapes go unreported because they’re done by predators. They’ve got both the instincts and the experience to choose people who won’t report them, either out of shame, embarrassment, or a simple human instinct to “forget about it”.

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                    • Sam & zic both: Regarding why we focus on what we do, it absolutely has to do with what we can imagine clearly. I *know* I will never rape anyone; as an adult male in a First World country, I am also exceedingly unlikely to *be* raped, unless I am sent to prison for some other reason.

                      But could I imagine being falsely accused of rape? Yeah. WillT’s piece elsewhere today talked about a mentally unstable woman in his past who locked herself in his closet, screaming; BlaiseP has talked about at least one mentally unstable female in his past; I have known a couple myself.

                      Does this mean any greater percentage of females are mentally unstable than are males? Heck no, if anything I suspect more males are mentally unstable due to (IIRC) wider distribution across the mental function curve, and again I have known my share. But it’s exceedingly unlikely that they’ll ever accuse me of rape in any way that even comes close to credible (nor all that likely that they’d ever rape me).

                      Bottom line is, you shouldn’t be surprised when the 50% of the population with a Y chromosome wants some attention paid to the handling of an event (a false accusation) that they can imagine happening to them. And I don’t see anything controversial or unseemly or “pining” about saying, “as we are attempting to make things better for rape victims (problem X), let’s make sure we are not also facilitating false accusations (problem Y). If we see any attempt to discuss problem Y as de facto deflection or dodging etc., I’d suggest that is uncharitable.

                      Anyway, thanks for the thoughtful discussion, and for not going immediately to Defcon 1 upon the question being brought up.

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                    • http://www.politicsdaily.com/2010/12/27/notre-dames-fr-jenkins-pins-delays-in-lizzy-seeberg-case-on-d/

                      Notre Dame grad Joseph A. Power Jr., the high-powered Chicago attorney who has been hired to represent the accused, told the Tribune that his client is mulling legal action against what he called the “false accusations” that he “raped Seeberg or otherwise attacked her sexually.” Seeberg never alleged that he raped her, but according to her statement, she did consider the incident an assault.

                      It’s already true that the majority of sexual assaults go unreported, largely because of the indignities visited on the victims who do report them. We don’t need this is kind of crap making it worse.

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                    • “meanwhile, a false accusation can be damning, for sure, but I seriously doubt those students at Duke are struggling with the consequences now; my guess is that they’ve got jobs and opportunities, that their entire life hasn’t been changed forever as a result of what happened”

                      because they’re rich and white.

                      If they were neither one *they would be in prison* right now.

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                    • Kolohe – agree. I think also saying that false accusations don’t often happen ignores the other ugly historical racial aspect – there was a time not too long ago when many “uppity” black men were falsely accused of rape by white women (and their men). Presumably the benefit such accusers gained (or the loss they avoided) by making such a false accusation outweighed the risk of loss of social standing due to having one’s virtue supposedly taken by a member of an “inferior” race. If some would take that social risk then, why wouldn’t some take a lesser risk now?

                      zic – thanks for the link; the article, but more importantly the comments helped crystallize for me part of the reason these convos so often go off the rails, and that is that people mean different things when they say (or hear) the phrase “false accusation” – and I now realize that I myself have been extremely imprecise and variable in the ways that I am using that term, so I shouldn’t be shocked that the points I am trying to make are not coming through clearly. Again, I thank everyone involved here for their patience and for not immediately assuming bad faith/making uncharitable interpretations/going to Defcon 1.

                      I also think that there was illumination provided, from several sides, on why this is such a hard nut to crack (in brief, we are trying to deal with variables on variables – rape is *already* hard to prove due to the nature of the crime, and now we are trying to suss out something even more opaque – the subset of people who would intentionally hide the truth to varying degrees).

                      I don’t know that I am going to have the time anytime soon to give the subject the thorough treatment I think it deserves (my life is bonkers rt now) so if I can’t get back to this soon, let me make the following statements that I hope will be fairly non-controversial and indicate my basic position:

                      A. I agree that the phenomenon of rape is far more prevalent than the phenomenon of false accusation of same.

                      B. Accordingly, I have no problem with society devoting the bulk of its resources to preventing or obtaining justice for the more prevalent phenomenon.

                      C. I am not in favor of making it any harder than it already is for a rape victim to obtain justice, and in fact we should see what we can do to make it easier for them.

                      D. However, I do believe that false accusations do in fact occur, and that the unique social consequences of even a casual accusation (=gossip that never even reaches a courtroom), let alone the legal consequences of a formal accusation, are severe enough that they do warrant serious consideration when we are having discussions about how to improve the situation for rape victims.

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                    • Rape, for anyone who takes it seriously as a problem that plagues our society, presents a somewhat unique problem for us. The uniqueness comes from the fact that, unlike most other crimes, it is often the case that the only evidence that the crime occurred is the word of the victim. This is not only because whether a rape occurred hinges on whether the victim consented, something that, without (and even with) video and audio of the event, is difficult to discern after the fact, but also because rapes are often not reported immediately afterwards, which means that physical evidence that points to it is often degraded, if not gone entirely, by the time anyone begins to investigate the accusation. The problem is compounded by the fact that our culture leads to a tendency to immediately begin scrutinizing the woman and any observable behavior that we think might be related to consent, even if it’s really irrelevant: does she tend to dress provocatively? was she out too late? was she drinking? is it someone she knew (her boyfriend or husband, even)? does she usually look like she’s into him? was she flirting earlier in the evening? and so on. Unlike other crimes, say murder or theft, it’s the woman, not the accused, whose life and behaviors are immediately scrutinized, and often much shaming is involved (one of the many reasons that rapes are often not reported immediately).

                      If, again, we’re to take rape seriously, it seems that in some sense, when an accusation of rape is made, in order to be fair to the accuser, we need to assume that a rape did occur, as a necessary corrective to the culture that is so hard on the victims of rape. On the other hand, one of the most important parts of our system of justice is the assumption of innocence. This assumption doesn’t fit well with the corrective that our rape culture necessitates. Hence the unique problem that rape presents for us: because of the nature of the crime, in our cultural context, it is important for us to treat every accusation as though it were true, absent clear evidence to the contrary, in order to be sure that we not only investigate thoroughly, but we avoid shaming victims, but as with any crime, it is also important to assume that the accused is innocent for the purposes of both investigating fairly and avoiding ruining the lives of potentially innocent people. I don’t think there’s an easy way around this dilemma, or through it for that matter. All we can do is take every accusation seriously and investigate them promptly and thoroughly without dragging the victims through the mire. This, of course, is precisely what didn’t happen in the Notre Dame case.

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                    • Just a suggestion. Treat both as true… the accuser as being a victim, and the accused as being innocent… until proven otherwise.
                      This is akin to treating it as though someone accused of murder is probably guilty of manslaughter.
                      So, we know or we ought to know, that not all forms of non-consensual sex are prosecutable. We ought to validate the victim’s feelings, while understanding that they may be perhaps distorted. And ALSO, that many things that are ACTUAL CRIMES will NEVER EVER EVER get prosecuted as such.

                      Glyph, for every instance where someone is falsely accused, there are probably three where a man has willfully put a woman into a state/position where she cannot express non-consent, though she is non-consenting. I am told this is not actionable under current law, absent physicalformsofconsentremoval (read date rape drugs, in specific, or gags/blindfolds/bonds otherwise).

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        • “I don’t know if people even treat a convicted killer with the same moral revulsion; once he serves his time, he may be able to convince us he was falsely accused; or that prison reformed him; or that there were special circumstances for the killing. ”

          Or, bringing it back to football, he’s Ray Lewis.

          (who I think has redeemed himself)(and may have just been in the wrong place at the wrong time)

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        • A simple suggestion (and perhaps I’m playing devil’s advocate). Rather than “consequences”… can we differentiate a little, on the nature of sex crimes?

          There’s a lot of difference between “forced violently”, “tortured with sleep deprivation”, “didn’t want it, didn’t say no, but You Could Tell! (or should have known)”, “You didn’t wear a condom! you Said you wore a condom!”

          And all of these ought to be prosecutable. But differently. Throwing them all under the banner of rape… isn’t right.

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  7. By pro, I am sympathetic to the rights of criminal defendants and think that they are important. Not that I would always find for them as judge or jury.

    I also believe that the primary purpose of the criminal justice system should be reformation and that a conviction should not be a damnation to the shadows and underbelly for life.

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  8. The sad part? This isn’t the worst thing that happened in College Football this year.

    I mentioned it before when Penn State came up.
    There are other schools out there protecting evil dudez.
    Not even players who do one unforgiveable thing.
    Dudez who year after year continue to break people.

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  9. Very good article, but no need to exaggerate and lose credibility by calling the Seeburg allegation ‘rape’. It was an allegation of sexual assault and bad enough on its own.

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