The Rot At Duke — And Beyond

National Journal

You might think that a university whose students were victims of the most notorious fraudulent rape claim in recent history, and whose professors — 88 of them — signed an ad implicitly presuming guilt, and whose president came close to doing the same would have learned some lessons.

The facts are otherwise. They also suggest that Duke University’s ugly abuse in 2006 and 2007 of its now-exonerated lacrosse players — white males accused by a black stripper and hounded by a mob hewing to political correctness — reflects a disregard of due process and a bias against white males that infect much of academia.

In September, far from taking pains to protect its students from false rape charges, Duke adopted a revised "sexual misconduct" policy that makes a mockery of due process and may well foster more false rape charges by rigging the disciplinary rules against the accused.

Meanwhile, none of the 88 guilt-presuming professors has publicly apologized. (Duke’s president, Richard Brodhead, did — but too little and too late.) Many of the faculty signers — a majority of whom are white — have expressed pride in their rush to judgment. None was dismissed, demoted, or publicly rebuked. Two were glorified this month in Duke’s in-house organ as pioneers of "diversity," with no reference to their roles in signing the ad. Three others have won prestigious positions at Cornell, Vanderbilt, and the University of Chicago.

(Disclosure: I co-authored a 2007 book on the case, Until Proven Innocent, with historian KC Johnson of Brooklyn College and the City University of New York’s Graduate Center. His scrupulously accurate blog details the events summarized here.)

The two stated reasons for the revised sexual-misconduct rules, as reported in the student newspaper, The Chronicle, almost advertise that they were driven by politically correct ideology more than by any surge in sexual assaults.

Opening Argument – ‘Rape’ and the Navy’s P.C. Police

National Journal

This is a story about a 23-year-old African-American midshipman who has limitless potential to serve his country but now faces a grave risk of seeing his Navy career derailed because of a bogus rape charge by a white woman whose violations of Navy rules were worse than his.

Lamar Owens Jr., the star quarterback, captain, and MVP of the Navy football team through the 2005 season, was resoundingly acquitted of rape last July 20, after the evidence presented to a military jury of five naval officers showed clearly that his sexual encounter with a female midshipman six months before was consensual and that the rape prosecution was a travesty.

More broadly, this is a story about how overreaction to the bad old days when real rape victims were not taken seriously has fostered a politically correct presumption of guilt in many rape cases, leading to wrongful prosecutions of innocent men and, probably, the convictions of some.

In the now-infamous Duke lacrosse rape fraud, the falsely accused men are white, the lying accuser is black, and racial demagoguery has fueled the prosecution. In other cases, such as that of Lamar Owens, the races have been reversed and suspicions of racially selective prosecution muted. In most, the men and women have been of the same race.

Owens endured a court-martial that should never have been convened, in the face of powerful evidence of innocence, thanks to the "leadership" of the Naval Academy’s superintendent, Vice Adm. Rodney Rempt. He has led a much-publicized crackdown on sexual assault and harassment, but has badly overshot the mark.

“Rape” and the Navy’s P.C. Police

The Atlantic

This is a story about a 23-year-old African-American midshipman who has limitless potential to serve his country but now faces a grave risk of seeing his Navy career derailed because of a bogus rape charge by a white woman whose violations of Navy rules were worse than his.

Lamar Owens Jr., the star quarterback, captain, and MVP of the Navy football team through the 2005 season, was resoundingly acquitted of rape last July 20, after the evidence presented to a military jury of five naval officers showed clearly that his sexual encounter with a female midshipman six months before was consensual and that the rape prosecution was a travesty.

More broadly, this is a story about how overreaction to the bad old days when real rape victims were not taken seriously has fostered a politically correct presumption of guilt in many rape cases, leading to wrongful prosecutions of innocent men and, probably, the convictions of some.

In the now-infamous Duke lacrosse rape fraud, the falsely accused men are white, the lying accuser is black, and racial demagoguery has fueled the prosecution. In other cases, such as that of Lamar Owens, the races have been reversed and suspicions of racially selective prosecution muted. In most, the men and women have been of the same race.

Owens endured a court-martial that should never have been convened, in the face of powerful evidence of innocence, thanks to the "leadership" of the Naval Academy’s superintendent, Vice Adm. Rodney Rempt. He has led a much-publicized crackdown on sexual assault and harassment, but has badly overshot the mark.

Is It Sexual Exploitation If Victims Are ‘Virtual’

Newsweek

In 1982, when the Supreme Court first upheld a state law banning child pornography, nobody was thinking about the possibility of making child porn without a kid. But since then wonders of modern technology have brought us virtual child porn: images that look exactly like children engaging in sexual conduct but are created by computers, without using real children. This has teed up a new issue for the court: does the First Amendment right to free speech protect the creation, distribution and possession of computer-created child porn?

Five years ago Congress expanded the federal child-porn law to cover the virtual variety. The Child Pornography Prevention Act of 1996 bans any image that "appears to be" sexually explicit conduct by an actual child. Congress found not only that pedophiles use such images to whet their own appetites and lure children into sexual activities, but also that virtual child porn can "desensitize the viewer to the pathology of sexual abuse or exploitation of children."

Rejecting these justifications as constitutionally insufficient, a panel of the U.S. Court of Appeals for the Ninth Circuit, sitting in San Francisco, voted 2-1 in December 1999 to strike down the 1996 statute. The decision came in a lawsuit brought by the Free Speech Coalition, an adult-entertainment trade association, along with a painter of nudes, the publisher of a book on nudism and a photographer. Only "the protection of the actual children used in the production of child pornography" can justify a ban on child porn, the Ninth Circuit panel held. In seeking Supreme Court review, the Justice Department countered that the ban on virtual child porn was necessary to protect "children who may be abused as a result of the dissemination of visual depictions of child pornography." The Supreme Court agreed in January to hear the case.

Legal Affairs – Why You Can’t Sue Your Rapist In Federal Court

National Journal

"The 1994 Violence Against Women Act provided (among other things) that victims of rape, domestic abuse, and other "crimes of violence motivated by gender" could file federal civil rights lawsuits against their alleged assailants. The measure was nothing if not popular. Championed by President Clinton and feminist groups, it sailed through the House and Senate.

Legal Affairs – Congress, The Court, And Violence Against Women

National Journal

Can Congress authorize battered wives, rape victims, and other people harmed by gender-motivated crimes to file federal civil rights lawsuits against their assailants? That’s what Congress did in the Violence Against Women Act (VAWA) of 1994, and that’s the specific question on which the Supreme Court will hear arguments on Jan. 11 in United States vs. Morrison.

The broader issue is whether the justices should expand states’ rights by striking down the VAWA provision, despite congressional findings that a federal remedy is necessary to combat discrimination against victimized women in state justice systems and to enable such women to participate fully in the economic life of the nation and in the interstate commerce that Congress is empowered to protect.

This may be the biggest states’ rights case since 1992, when the justices began breathing new life into the federalist principle that the national government has limited powers and may not unduly encroach upon the domain of the states.

It’s an easy case for many liberals, who support VAWA, and for many conservatives, who would love to see it struck down. It is likely to be a hard case for the two centrist justices whose votes will almost certainly determine the outcome: Sandra Day O’Connor-whose passions include both states’ rights and women’s rights-and Anthony M. Kennedy.

It’s certainly a hard case for me. Part of me wants the court to strike down the statute as an unwarranted, largely symbolic exercise in political correctness that will do little for victims of violence and even less for interstate commerce. But judicial restraint argues for upholding the statute as a (barely) plausible exercise of Congress’s necessarily broad power to regulate activities that have a substantial effect on interstate commerce.

Pondering Paula’s Precedents

The myriad rationalizations offered by liberal feminist groups-which habitually canonize women alleging sexual harassment-for the disdain they have shown one Paula Corbin Jones is a bit reminiscent of the classic dog-bite defense: I don’t own a dog; my dog was out of town when the woman was bitten; it was his first bite; he bit her in self-defense; she asked for it; and she wasn’t really hurt.

The feminist line goes something like this: We don’t know this woman; she’s in bed with right-wingers; we already knew Bill was a womanizer, it was his first flashing; she probably came onto him; she asked for it; and she wasn’t really hurt.

There’s more: She waited too long (three years) before going public; we don’t believe her the way we believed Anita Hill (who waited 10 years); and her legal claims are so weak that they should be dismissed without ever getting to a jury, even assuming her allegations to be true.

I examined some of these points in "Her Case Against Clinton" (The American Lawyer; November 1996). Here I will examine the last one: the legalistic dodge, which seems increasingly in vogue.

The legalistic dodge misses the point that the most important public issue raised by the Jones case is not whether she could get past a motion for summary judgment, but what her evidence tells us about the character of the most powerful man in the world. And the dodge is, of course, advanced by many feminist groups and leaders who would argue the opposite if the accused were, say, Newt Gingrich.

These include ex-Rep. Patricia Schroeder, who suggested on CBS recently that Jones would have no claim "unless the governor or somebody had communicated to her she would lose her job, or she wouldn’t get her promotion, or there’s some job-connected consequence of her not having sex with the governor."

A Civil Libertarian’s Nightmare

Leroy Hendricks is every parent’s nightmare: a 62-year-old pedophile, convicted five times of molesting at least 10 children over a period of 40 years, who admits that he might well molest more if given the opportunity.

His case, Kansas v. Hendricks, is every civil libertarian’s nightmare.

That’s because, to prevent Hendricks from preying on more children, the Supreme Court may be tempted down the slippery slope of allowing states to lock people up-perhaps for life-based-on inherently Speculative predictions of future dangerousness. Down that slope lie questions like this: If pedophiles can be preventively detained for what Kansas calls a "mental abnormality" predisposing them to molest children- even though the likelihood that they will do so falls well short of certainty-why can’t recidivistic armed robbers, or violent drunks, or others be detained for what might be called a "sociopathic personality disorder," which makes them equally or even more likely to commit other crimes?

At the bottom of the slope lies the specter of totalitarianism, as Justice Antonio Scalia noted during the Dec. 10 oral argument in the case.

Anyone with a grain of concern for civil liberties would hesitate to venture down this slope. But do die justices have a choice, short of telling Kansas that it must free Hendricks until-as Chief Justice William Rehnquist put it-"he goes out and does it again"?

Hendricks is one of thousands of sexual predators who will remain a threat to children as long as they live. Studies indicate that many have had dozens, even hundreds, of victims. Some are in prison, but few are serving life sentences.

Paula Jones: A Federal Crime?

A stunning irony, so far unnoticed, lurks in a pair of pending Supreme Court cases: Clinton v. Jones, in which the president and his Department of Justice seek to block a sexual harassment lawsuit against him until after he leaves office, and the lesser-known United States v. Lanier.

The irony is that the crude sexual advances of which Bill Clinton stands accused by Paula Corbin Jones would apparently be a federal crime under the Clinton Justice Department’s legal analysis in the case of David Lanier, who was a monstrously lecherous chancery court judge in rural western Tennessee.

Clinton’s alleged conduct would be even more clearly a federal crime under the analysis suggested in amicus briefs filed by leading feminist groups and scholars.

Another irony is that while the Lanier case has become (understandably) a cause celebre in the women’s movement-with every major feminist legal advocacy group in the nation urging reversal of an appeals court decision that threw out Lanier’s convictions-the president’s so-far-successful effort to slam the courthouse door in the face of Paula Jones until the year 2001 has prompted not a whimper of protest from any of them.

Given all this, the rumor in the Supreme Court press room-that the cases may be set for argument the same day, sometime in January-seems almost too delicious to be true.

(For a fuller discussion of the Jones-Clinton case, see "Her Case Against Clinton," in the November issue of The American Lawyer, which I wrote before becoming aware of the parallels presented by the Lanier case.)

Real Sexual Harassment

Remember Graydon Snyder, the professor at Chicago Theological Seminary who got a sexual harassment reprimand for exploring the role of intent in sin by reciting a story from the Talmud about a man who falls off a roof, lands on a woman, and accidentally has intercourse with her?

Remember J. Donald Silva, the writing instructor at the University of New Hampshire who got a sexual harassment suspension for classroom use of sexual metaphors-like a famous belly dancer’s comparison of her craft to "Jell-O on a plate, with a vibrator under the plate"-that some female students found offensive? (Silva later won a judicial ruling that the suspension violated the First Amendment.)

Remember the student at Tufts University who was temporarily suspended for selling T-shirts inscribed with 15 reasons "Why Beer is Better than Women at Tufts"?

Such examples create a temptation in some quarters to dismiss reflexively claims of sexual harassment, and sex discrimination generally, as ideologically tinged whining over trifles by politically correct women whose actual agenda is censorship.

But now comes a timely reminder-from Normal, Ill.-of the real sexual harassment that stalks many women, especially blue-collar women breaking into traditionally male workplaces, who are often subjected to crude sexist vilification of a sort rarely experienced by pampered propagandists of PC paranoia who populate the professoriate.

Normal is home to the now infamous factory owned by Mitsubishi Motor Manufacturing of America Inc. The company was hit by the Equal Employment Opportunity Commission on April 9 with the largest sexual harassment suit in history, alleging rampant harassment of as many as 500 women at the plant since it opened in 1988.