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Until Proven Guilty: The vanishing of due process in campus rape tribunals

Stuart Taylor, Jr. — Mon, 07 Dec 2015 12:00:07 +0000

When it comes to due process on campus, Republicans in Congress, who campaigned on vows to rein in the Obama administration’s abuses of executive power, have largely acquiesced in its bureaucratic imposition of quasi-judicial tyranny. For more than four years, the White House and the Education Department’s Office for Civil Rights (OCR) have used an implausible reinterpretation of a 1972 civil-rights law to impose mandates unimagined by the law’s sponsors. It has forced almost all of the nation’s universities and colleges to disregard due process in disciplinary proceedings when they involve allegations of sexual assault. Enforced by officials far outside the mainstream, these mandates are having a devastating impact on the nation’s universities and on the lives of dozens — almost certainly soon to be hundreds or thousands — of falsely accused students.

One might have expected an aggressive response by House Republicans to such gross abuses of power — including subpoenas, tough oversight hearings, and corrective legislation. Instead, most of them have been mute. In the Senate, meanwhile, presidential candidate Marco Rubio of Florida, Judiciary Committee chairman Charles Grassley of Iowa, and rising star Kelly Ayotte of New Hampshire have teamed with Democratic demagogues Kirsten Gillibrand of New York and Claire McCaskill of Missouri in co-sponsoring a bill that would make matters even worse.

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A Smoking-Gun E-mail Exposes the Bias of ‘The Hunting Ground’

Stuart Taylor, Jr. — Mon, 16 Nov 2015 13:30:26 +0000

A so-called documentary about campus rape, The Hunting Ground, is set to air Thursday on CNN, which co-produced it. But a newly available e-mail from an investigative producer of the film spectacularly belies its pretensions to be honest, balanced journalism. Instead, the e-mail adds to the large body of evidence that that the film is highly misleading if not dishonest.

In the December 21, 2013, e-mail from Amy Herdy (billed in the film as working with independent director Kirby Dick and producer Amy Ziering), Herdy sought an interview with Erica Kinsman and her lawyer about her highly publicized rape accusation against Jameis Winston, the Heisman Trophy–winning, first-NFL-draft-pick former Florida State quarterback. The Herdy e-mail, sent to Kinsman’s then-lawyer, included this assurance: “We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side” (emphasis added).

This e-mail appears directly contrary to claims by both Dick and CNN — which calls itself “the most trusted name in news” — that this is an accurate, balanced documentary, fair to both sides of every story. While calling himself “both an activist and a filmmaker,” Dick stressed in a typical promotional interview that “for us first is accuracy.”

Jeff Zucker, president of CNN Worldwide, let slip the network’s own bias at the Sundance premiere, where he brushed aside anticipated criticism of the film by universities — which it smears as covering up for rapists — by saying that “they are on the wrong side.”

The Herdy e-mail, originally sent to Kinsman’s then-lawyer (and aunt) Patricia Carroll, and related documents were made available to this writer today by Florida State, which obtained the e-mail in connection with Kinsman’s lawsuit against the school.

A second e-mail from Amy Herdy, dated February 12, 2014, asked accuser Kinsman’s lawyer whether she was “ok with us sending [to Jameis Winston] the official request this week” for an interview. Herdy added: “I’m sure he will say no . . . and then I want him to have a gap of a couple of weeks to get complacent because then we will ambush him.”

Also today, FSU president John Thrasher issued a statement that the film’s claim that FSU and many other schools have turned their backs on Erica Kinsman and other alleged victims of sexual assault “contains major distortions and glaring omissions to support its simplistic narrative.” He added: “It is inexcusable for a network as respected as CNN to pretend that the film is a documentary rather than an advocacy piece.”

Thrasher likened the film to the notorious, now-retracted Rolling Stone article about what proved to be a fabricated story about an alleged sadistic gang rape, atop shattered glass, at a University of Virginia fraternity. The Rolling Stone article, Thrasher said, took a purported rape victim’s “story at face value without getting the other side or checking the details with other sources, including the accused.” He said that FSU had expressed to top CNN executives, to no avail, “our concerns about the factual, statistical and ethical defects in the film.”

Thrasher is far from alone is assailing the film’s veracity. Among others, 19 Harvard Law School professors, including eminent feminists and progressives, said last week in a press release that “this purported documentary provides a seriously false picture both of the general sexual assault phenomenon at universities and of our student Brandon Winston,” who was “vindicated by the Law School” and by a criminal jury that found him not guilty of any sexual misconduct.

The Hunting Ground, which runs 103 minutes, has been shown since last January at the Sundance Film Festival, in hundreds of theaters around the country (mostly at colleges), and at the White House, where President Obama has led a major propaganda effort linked to his administration’s campaign to destroy due process for students falsely accused of rape.

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The Cinematic Railroading of Jameis Winston

Stuart Taylor, Jr. — Thu, 12 Mar 2015 15:54:08 +0000

The Hunting Ground joins the movement to ruin a man’s career for the sake of an ideological agenda. A movement is afoot to destroy the career of a young black man whom a young white woman with overwhelming, well-documented credibility problems has accused of raping her. Three separate investigations, including a Florida State Code of Conduct hearing, have found former Florida State quarterback and Heisman Trophy winner Jameis Winston not to be a rapist. But now The Hunting Ground, a much-touted documentary on campus sexual assault, features his previously anonymous accuser presenting her case publicly for the first time. Senator Claire McCaskill (D., Mo.) has warned that NFL teams had better “watch this movie before they draft him.” The movie, co-produced by CNN and created by Emmy-winning director Kirby Dick and Oscar-nominated producer Amy Ziering, has already aired at the White House, the Sundance Festival, many campuses, and in New York and Los Angeles. It will air on March 13 in other major cities, including Washington, D.C. The film’s longest segment — 15 full minutes — is designed to prove that Winston raped former classmate Erica Kinsman and got away with it because of bad police work and college administrators’ greed and favoritism toward football stars. The film “throws down a challenge of a sort for the National Football League with a not-so-subtle suggestion that teams should think twice about drafting one of the top college prospects, Jameis Winston,” as the New York Times enthused. The 103-minute film shows dozens of college women telling heartbreaking stories of being raped by male students and then further victimized by callous college officials who, the film alleges, cover up the crimes to avoid bad publicity. Campus rape is a serious problem, and the film helps activists gain for it the attention it deserves. But the film also “traffics in alarmist statistics and terrifying assertions,” as Emily Yoffe details in Slate. Like President Obama, it uses “studies that don’t hold up to scrutiny” to claim that 20 percent or more of college women are sexually assaulted while in college. Careful research by the Bureau of Justice Statistics suggests that the number is closer to 2.5 to 3 percent. Still far too many, but hardly an “epidemic.” Indeed, the rape rate for college women is “significantly lower than the rate experienced by women that age who don’t attend college,” as the criminologist Callie Marie Rennison has noted. More to the point, it’s fair to wonder whether the exclusion from The Hunting Ground of facts that cast grave doubt on the credibility of Kinsman, the most celebrated alleged victim featured in the film, may be representative of the work as a whole. ADVERTISING In making its case against Winston, the film conceals from viewers how Kinsman’s story conflicts with the physical evidence, other witnesses, and her own past statements. It also distorts why the three investigations all found that the evidence does not prove that Winston raped Kinsman. In these respects, the film is strikingly similar to the gross, systematic distortions of the evidence by the New York Times to portray Kinsman as a truth-teller and Winston as a clearly guilty rapist. The first investigation, by Tallahassee police, was deeply flawed by errors including the failure of investigators to find and interview a taxi driver who could have been a significant witness, failure to find and preserve possibly relevant videotapes, and failure to find out more quickly that the alleged rapist was Winston and seek a timely interview. The second investigation, however, by State Attorney William Meggs, was thorough and careful. Meggs publicly concluded that Kinsman was not “a witness that we believed we could put on the stand and vouch for” — a polite way of saying she had little credibility. And in the third investigation, for Florida State, former Florida supreme-court justice Major Harding reviewed a file of more than 1,000 pages. After conducting a meticulous, thorough, and fair two-day hearing, he found that Winston’s claim that Kinsman consented to sex was as credible as her oft-revised claim that he raped her. The film does not disclose Meggs’s or Harding’s findings that Kinsman was less than credible, or the reasons for their conclusions, or the extent to which Florida State went to give Kinsman a chance to prove her case. In The Hunting Ground, Kinsman tells of going on December 6, 2012, as a Florida State freshman, to a popular off-campus bar where an unknown man gave her a “shot” of liquor that she believes was drugged. “I’m fairly certain that there was something in that drink,” she says, adding that it soon rendered her “incompetent.” Kinsman says she then remembers somehow finding herself in a cab with three men she did not know — Winston, his roommate, and a third football player. Next she recalls finding herself in someone’s (Winston’s) apartment, where “this guy was sexually assaulting me, he was raping me.” She says that she protested, “Please stop,” and that Winston’s roommate came through the broken bedroom door “saying, ‘Dude, stop, she’s telling you to stop.’” Then Winston carried her into the bathroom, locked the door, and raped her more violently there, pinning her arms down and pushing her face into the tile floor. But according to testimony ignored by the filmmakers, Winston’s friend says that he came into the bedroom hoping to join the sex and that, when Kinsman shouted for him to leave, he left. He and Winston’s other friend, also an eyewitness to part of the sex, said that Kinsman’s actions and statements showed clearly that she was a willing participant. More important, the film does not mention the critical fact that two different police-ordered toxicology reports of Kinsman’s blood showed that no known date-rape or other known drug (and not much alcohol) was in her system. The second test, done by the prominent Dr. Bruce Goldberger of the University of Florida pathology laboratories after Kinsman’s lawyer refused to believe the first, was negative for 172 different drugs and their metabolites. This virtually proves that Kinsman’s claim in the film that she was drugged was false, and she must have known it. Obviously she knew the test results. And obviously the filmmakers knew if they were the least bit careful. Also omitted from the film is the stunning fact that in her 28 pages of testimony to Justice Harding last December 2, she never suggested that she had been drugged or made “incompetent.” (Given the film’s release date, apparently her testimony came after her on-camera interview.) Perhaps these striking changes in her story reflect that on December 2, Kinsman was giving sworn testimony to a retired state supreme-court justice who knew from the toxicology reports that she had not been drugged. Indeed, Kinsman herself implied at the hearing that she had not been drugged. Also contradicting what she implied in the film, Kinsman at the December 2 hearing stated for the first time that “I’m pretty sure that the guy who gave me a shot of liquor” was Winston, and she omitted any implication that the drink was drugged. Describing how, outside the bar, she got into the cab with the three men, she acknowledged that she did so without protesting or resisting and that she proceeded to Winston’s apartment and into his bedroom. Kinsman testified that she got into the cab with the three men because she was “scared” of them. The film does not disclose Harding’s conclusion that this was less than credible given that she had entered the cab in front of a crowd of people and never sought any help. Nor could she cite anything Winston or his friends did to frighten her or force her to go with them. Then there is the stark contradiction — also entirely omitted from the film — between Kinsman’s initial report of an assault, which a friend phoned in on her behalf to Florida State police, and every one of Kinsman’s shifting accounts since then. The friend told police that Kinsman “said she thinks she was hit on like the back of the head,” kept “blacking out,” and had no recollection of how she got to Winston’s bedroom. The film starts playing the 3: 22 a.m. recorded phone report to campus police but omits the part about Kinsman’s being hit on the head. It’s not hard to imagine why filmmakers bent on portraying Kinsman as a truth-teller cut that out: In a report on her medical exam of Kinsman, a sexual-assault nurse made no mention of any sign of a blow to the head. Since then, Kinsman has never repeated that claim. Tallahassee police later reported that prosecution of Winston was unwarranted “given the conflicting statements between what the victim told her friends and what was reported to police.” (Kinsman and her friend suggested at the December 2 hearing that she had never told anyone she had been hit in the head and blacked out. The recorded evidence, and a separate Kinsman statement to another friend, suggest otherwise.) The film presents Kinsman saying that police “were watching bruises appear as I was laying in the hospital bed.” She and the filmmakers do not disclose that the sexual-assault nurse indicated in her report that the only recently incurred marks on Kinsman’s body (aside from mild vaginal redness and swelling, which the nurse said could have come from either consensual sex or an assault) were “mild redness on both . . . knees below the kneecap” and on the top of Kinsman’s right foot. As Justice Harding found, these red marks were at least as consistent with the claims by Winston and his two friends that Kinsman had been on her knees, voluntarily giving Winston oral sex, as with her story of a rape in which Winston pinned down her arms and pushed her face against the tile floor. There was, however, no finding of any recent bruising or lacerations to her face, arms, or genital area. Kinsman further tars Winston in the film by saying that a victim’s advocate told her that “we just want you to know that there’s another victim from him.” This appears to be a reference to an unidentified Florida State student who, according to the New York Times, did not accuse Winston of rape or sexual assault but rather sought counseling because she was upset about some unspecified experience with him. The film also omits the fact that Kinsman impeded the State Attorney’s investigation by refusing to tell an investigator the source of a second semen stain — not Winston’s — on her pants. The investigator had to divert time to find the source without her cooperation. It turned out to be a boyfriend who attended college in Ohio. The film makes no mention of Kinsman’s strong financial incentive to conceal the evidence supporting Winston’s claim that she consented. She had filed a lawsuit against Florida State for violating her civil rights and is expected to sue Winston for millions. Winston’s lawyers assert that in a phone conversation on January 14, 2014, Kinsman’s first lawyer, her aunt, Patricia Carroll, demanded $7 million, plus an insurance policy to pay Kinsman in case Winston got injured, in exchange for a promise that her client would never speak out publicly against Winston. Florida State president John Thrasher has denounced as false the film’s claim that he, among other university leaders, “declined to be interviewed for this film.” Thrasher said the filmmakers never notified him that the film would focus on Kinsman, Winston, and Florida State. We will probably never know exactly what happened that night between Winston and Kinsman. We do know that director Kirby Dick’s claim in one interview that “for us first is accuracy“ is far from accurate. — Stuart Taylor Jr. is an author, journalist, and Brookings nonresident fellow. Editor’s Note: This article originally described data from the Bureau of Justice Statistics as suggesting that around 0.6 percent of college women are raped before graduating. In fact, that is the annual percentage. The percentage of women raped while attending college is closer to 2.5 to 3 percent.

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