The Violence Against Women Act, and the Creation of South Park Nation

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Even though
at our house we don’t have television reception, we do have a TV
and watch videos. My kids like to watch reruns of shows like “Bones”
and “Castle,” and I admit to enjoying the old “Nash Bridges” episodes.

All of these
shows involve cops and other government officials “solving” crimes,
and while the methods used at times might not exactly be constitutional,
nonetheless they always get it right. Furthermore, the cops in these
shows care about getting it right.

Once again,
we see how Hollywood fantasy collides with reality. The “superdetective”
who uses deduction and intelligence to solve a crime simply does
not exist, anymore, or if in existence, is a very rare species.
Instead, police today depend heavily upon preconceived “narratives”
in which they decide at the beginning who is “guilty,” and how to
construct “evidence” to prove that guilt. If the evidence does not
fit the narrative, then police either ignore it or get prosecutors
to do the legal version of pounding square pegs into round holes.

I make this
point because American law increasingly has moved in the direction
where evidence no longer matters when it comes to determining who
has committed a crime. For that matter, it does not even matter
if someone actually has committed a crime; the only thing that is
important is whether or not the authorities claim there has been
a crime and that the “guilty” party will be punished. Modern criminal
"investigations are not something out of "Bones"
or "Law and Order." Instead, they are something
out of South Park
.

Nowhere are
“imaginary crimes” more prevalent in this country than in so-called
sex crimes, be they rape, sexual assault, or child molestation,
and no other set of “crimes” requires less proof for conviction.
For all of the wistful talk of “revolution,” Americans need to understand
that a legal revolution already has occurred, as Congress, the courts,
and the executive branch have teamed up to wipe out what once was
called “due process of law.”

While “due
process” exists in form, it no longer means anything in substance,
and the Mondale Act and the Violence
Against Women Act
have further eviscerated what have been called
“the rights of the accused.” Being that the main purpose of the
VAWA was to get more convictions of assault, sexual assault, and
rape against men, the law has been very successful, but only by
spreading the net very wide (on the assumption that all men are
rapists and women always tell the truth they when accuse men of
rape) and eliminating requirements that the prosecution bring corroborating
evidence.

It is important
to remember that”sex crimes” in this era
have become intensely political
. Passage of the VAWA, just like
the Mondale passage some 20 years earlier, had been preceded by
huge amounts of propaganda claiming that rape and sexual assault
were “epidemic,” and that only the federal government could save
the day, and the way to do that was to destroy due process, rules
of evidence, and any sense of “fair play” when “sex offender” accusations
were made.

For example,
the so-called “rape shield” laws that exist under the VAWA umbrella
prevent defendants from entering a lot of exculpatory evidence in
the name of “protecting the victims’ privacy.” When combined with
the “no drop” policy that the VAWA has encouraged, it becomes extremely
difficult even for falsely-accused me to be able to avoid going
to prison. (The assumption behind “no drop” is that a recantation
of the charges by the original accuser always comes about because
of “sexist” pressure placed by the male accusers. In reality, because
prosecutors have so many legal weapons, “no drop” pretty much means
that even innocent people are going to plead out to something
even if there is no evidence except for the original accusation.)

Federal authorities
were able to entice states to end due process in so-called sex crimes
by offering huge amounts of money to state and local governments
which not only can be used to prosecute such cases, but also for
a number of other programs, such as battered women’s shelters and
the like. (Yes, rape and domestic violence exist, although the kinds
of numbers that are thrown about such as more than a quarter of
women attending college are raped are based upon very shaky numbers
and methodologies.)

To put it another
way, when crimes such as rape, sexual assault, and child molestation
are alleged, innocence really is not a defense at all. Thus, there
is no need for government investigators to do an accurate of thorough
job, as such work might uncover evidence that the charges are false,
and police and prosecutors are loathe ever to admitting any kind
of wrongdoing no matter how outrageous their actions.

The Duke
Lacrosse Case and the VAWA

The
infamous “rape” charges by a prostitute against three Duke University
lacrosse players
is a study in the injustices spawned by the
VAWA, although most people do not understand the role this law played
in the prosecution of what turned out to be a non-crime. Indeed,
while the facts of the case are most telling, the VAWA provided
the bedrock for prosecutor Michael Nifong’s baseless charges. The
account in Wikipedia explains the basic outline:

In March
2006 Crystal
Gail Mangum
, an African
American
student at North
Carolina Central University
who worked as a stripper, dancer
and escort, falsely
accused
three white
Duke
University
students, members of the Duke
Blue Devils men’s lacrosse
team, of raping
her at a party held at the house of two of the team’s
captains
in Durham,
North Carolina
on March 13, 2006. Many people involved in,
or commenting on, the case, including prosecutor Mike
Nifong
, called the alleged assault a hate
crime
or suggested it might be one.

In response
to the allegations Duke University
suspended the lacrosse team for two games on March 28, 2006. On
April 5, 2006, Duke lacrosse coach Mike
Pressler
was forced to resign under threat by athletics director
Joe Alleva and Duke President
Richard
Brodhead
canceled the remainder of the 2006 season.

On April
11, 2007, North
Carolina Attorney General
Roy
Cooper
dropped all charges and declared the three players
innocent. Cooper stated that the charged players — Reade Seligmann,
Collin Finnerty, and David Evans — were victims of a “tragic rush
to accuse.” The initial prosecutor
for the case, Durham
County
‘s District
Attorney
Mike Nifong, who was labeled a “rogue prosecutor”
by Cooper, withdrew from the case in January 2007 after the North
Carolina State Bar filed ethics charges against him. That June,
Nifong was disbarred
for “dishonesty, fraud, deceit and misrepresentation”, making
Nifong the first prosecutor in North Carolina history to lose
his law license based on actions in a case. Nifong was found guilty
of criminal
contempt
and served one day in jail. Mangum never faced any
charges for her false accusations as Cooper declined to prosecute
her.

While this
does explain what happened, nonetheless it does not tell how the
case got as far as it did. People tend to blame Nifong’s “rush to
judgment” and the explosive response from the local community and
the Duke University administration and faculty, but perhaps the
most important element is left out: the influence of the VAWA which
enabled Nifong to push what he and others knew to be baseless charges.

Following the
party during which two strippers (actually prostitutes) left in
a huff after it became clear that none of the players present were
willing to pay for sex, especially after the two women literally
had grossed everyone out with their antics during their “exotic
dance,” the women left in a car. After Mangum refused to leave the
car driven by her partner for the night, Kim Roberts, Roberts called
the police and an officer brought the drunken Mangum to a mental
health facility called Durham Access.

While an intake
nurse was examining Mangum, she asked the disheveled woman, “Were
you raped?” Mangum said she had been, and from that point, the provisions
of the VAWA took hold. If a woman claims to have been raped, a set
of procedures then must be followed, and the first is for the alleged
victim to be examined either by a physician or a certified Sexual
Assault Nurse Examiner or SANE.

Many SANEs
are professional nurses who perform their duties admirably, but
others simply are feminist zealots who see themselves as “anti-rape”
crusaders and the SANE who helped in Mangum’s examination, Tara
Levicy, fell into the second category. While Levicy did not do the
actual exam, nonetheless she signed the examination sheet (illegally,
I would add), and then became the point person from Duke University
Medical Center.

Levicy’s role
in this case was huge if for no other reason than she was a hook
onto which Nifong and his supporters in the news media and at Duke
University could hang their accusations. Even after word came from
the state crime lab that there absolutely was no DNA that matched
any of the players to Mangum, Nifong confidently went on
with the case, knowing that North Carolina had done away with any
requirement of corroborating evidence, thanks to the VAWA, and all
it would take would be an accusation. Furthermore, as he told the
media,
a lot of the information that would discredit Mangum would not be
permitted to be heard in court
because of “rape shield” laws,
another VAWA provision.

It could be
said of the Duke case that there was no “there” there. It was a
hoax, albeit a hoax kept alive by the VAWA, a dishonest prosecutor,
the academic community, and a news media that never learns. By setting
a required investigation into motion, one that came about even though
Mangum recanted her charges while in the DUMC emergency room (although
she revived them later), the VAWA did what it always does: establish
a pro-prosecution bias from the start.

To get a sense
of just how ridiculous the whole thing is, take the situation of
Reade Seligmann. He was at the party, but left during the “dance”
because he was disgusted with the whole thing. He called a cab,
went to an automatic teller at a bank (where he was recorded by
the bank’s camera), went to a restaurant where he got something
to eat, and then went to his dorm.

According to
the clock at the bank, Seligmann was withdrawing money at the same
time he supposedly was beating and raping Mangum. Ordinarily, not
being present at the scene of the supposed crime while the “crime”
was being committed at one time might have been seen as a strong
alibi. However, the VAWA, along with other federal policies in cases
of alleged sexual assault or rape, go by the ironclad premise that
once an accusation of this kind is made, the authorities must pursue
the charges as though they were true.

(Nifong, after
being faced with this hard evidence, decided to change the timeline
arbitrarily in order to pound the square evidence peg into the round
hole of truth. Not surprisingly, the New York Times swallowed
the whole thing, which is typical in these kinds of racially and
politically-charged cases.)

Even when prosecutors
find exculpatory evidence or it becomes clear that their star accuser
is lying, for the most part they ignore the 800-pound gorilla sitting
in the corner because of “no drop” policies. Even though North Carolina
does not have such a policy, nonetheless once prosecutors in that
state levy charges, they are loathe to give up stalking their “prey,”
no matter how specious the evidence.

One has to
understand how close the Duke students came to being convicted for
something that never happened. Although much of the national media
(except the NY Times) turned against Nifong after defense attorneys
revealed in a December 15, 2006, hearing that Nifong had hidden
DNA evidence from the lawyers and had lied to judges during earlier
proceedings, Nifong still had the “law” on his side.

First, much
of the DNA evidence (that Mangum had the recent DNA of a number
of unidentified males in her underwear — none of it belonging to
any lacrosse players, despite her description of the alleged attack)
fell into the category that Nifong believed would be withheld due
to “rape shield” laws. Thus, to him, it was irrelevant even if it
did impeach the “victim’s” entire testimony.

Second, because
the VAWA did away with the “corroborating evidence,” the fact that
there was no DNA evidence to fit Mangum’s original claims was irrelevant;
all that was needed for a conviction was tearful testimony from
Mangum that Reade Seligmann, Collin Finnerty, and David Evans brutally
assaulted and raped her, and had the trial been held in Durham,
North Carolina, where there still exist a large number of “true
believers” in Nifong’s non-evidence, most likely the jurors would
have felt the community pressure for a conviction.

For that matter,
Mangum and Nifong already colluded in late December to change her
testimony and timeline in order to do away with both DNA and Seligmann’s
rock-hard evidence that he was not at the scene when the alleged
attack occurred. That Nifong’s credibility was shot did
not prevent the media (and especially Sports Illustrated)

from heaping praise on Nifong for doing a 180. The mentality behind
the VAWA and its supporters is such that prosecutors and their witnesses
always are assumed to be telling the truth — even when it is obvious
that they are not.

Third, the
State of North Carolina dropped charges in the case only after an
exhaustive investigation by two seasoned prosecutors who, unlike
Nifong, actually wanted to know what happened, not a fictional version
of the event. Nifong was out of the case because the North Carolina
State Bar did something that was unprecedented in state history:
it filed misconduct charges against a sitting prosecutor before
a criminal case had been fully adjudicated. The decision to charge
Nifong came from a majority of one vote from the committee that
fashioned the charges.

The investigators
were stunned by not only the lack of evidence, but the dishonesty
of the entire process, and the two special prosecutors made it clear
to North Carolina Attorney General Roy Cooper that he should choose
words that made it utterly transparent that the case had been a
fraud. Yet, because of the VAWA, had the NC State Bar voted not
to charge Nifong, most likely a jury in Durham would have convicted
the three young men, and they still would be in a North Carolina
prison.

Like the Mondale
Act, the VAWA is able to enable more criminal convictions because
the “rights of the accused” have been replaced with “the rights
of the victims” (even if there are no real “victims”). Hearsay “evidence,”
once rejected by Anglo-American courts as being unreliable, is standard
fare in “sex crime” cases. For a while, the courts even permitted
children to testify on closed-circuit television from the judges’
chambers so that the Sixth
Amendment right
of being able to “face one’s accuser” could
be ignored in the name of garnering more jury convictions.

While the VAWA
has not been successful in doing away with the “facing one’s accuser”
provision of the U.S. Constitution, nonetheless by destroying “corroborating
evidence” standards and by setting in motion a guilt-assuming process
of non-investigation, any man is vulnerable to accusations from
anyone who wants to make an accusation of rape or sexual assault,
since the accusation itself is the “conclusive” evidence. Lest anyone
doubt what I have written, the bizarre and utterly dishonest case
against Harold Allen of Narragansett, Rhode Island, should give
one much pause.

Patrick
Lynch and Rape Charges against Harold Allen

In June 2007,
Patrick
Lynch, then the attorney general of Rhode Island, announced

his office had charged Harold Allen of Narragansett with raping
a woman 32 years before. Lynch, who then had aspirations of being
the state’s governor (his 2010 Democratic primary bid was unsuccessful),
declared that Allen had raped a woman when both were 16 years old,
and that the woman had “just remembered” via “recovered memory”
therapy. (Lynch
pointed ignored that “recovered memory” techniques had long been
discredited, but like everything else in government and especially
criminal law, what is discredited in the real world becomes standard
fare when the state is involved.)

At least Nifong
had an actual place and (sort of) time when the alleged assault
against Mangum occurred. Lynch declared in his indictment that the
rape had occurred sometime between April and October of 1975, and
that the place where it allegedly happened also was unknown.

This was vintage
VAWA: no one knew the date, time, or place, but a rape must have
occurred because the woman, after having undergone therapy, claimed
it was so. There was no corroborating evidence, nothing; only her
claim. (The one “witness” said Allen had been at the girl’s house,
but Allen pointed out that the two were neighborhood friends, and
that it was not unusual for him to have been at her place or elsewhere
with her. After all, 16-year-olds generally tend to be social creatures.)

Yet, that claim
was enough for Lynch to file charges. Unfortunately for him (and
his political career) it became clear that even Rhode Island residents
thought his antics were a bridge too far, and
the AG soon after introducing the case with much fanfare went into
retreat and dismissed the accusations
. The real problem came
because Rhode Island law created high standards of proof for charges
involving “recovered memories,” in large part because of the publicity
garnered from earlier “repressed memory” cases that were strongly
criticized by experts in psychology.

Without the
VAWA, Lynch would not have dreamed about charging Allen with rape.
Despite there being no evidence other than a woman’s supposedly
“recently liberated” memory, Lynch was free to file charges. Likewise,
every male who reads this needs to understand that he, too, can
find himself in the same situation. Because there is no statute
of limitations on rape, any woman can accuse any man of rape after
the fact, even if the two never had any contact, or even if they
were in the same locality.

For example,
assume that one of my female students was unhappy with her grade.
She could get back at me by alleging that I raped her, and once
she made her accusation, the following things would happen:

  • I would
    be arrested, handcuffed, marched before a media in a “perp walk,”
    and have my mug shot then publicized in the media;
  • I would
    be suspended from my job and possibly fired;
  • The charges
    would be nationalized and I would be vilified from coast to coast;
  • In order
    to begin to be able to refute the charges, I would have to be
    able to account for every second of my time during a period perhaps
    of several months because the law would not require for her to
    be specific in either the time or the place when the alleged assault
    occurred;
  • The VAWA
    provisions would kick in if I were to find out that she had made
    false accusations before, because they would not be admissible
    as exculpatory evidence;
  • I would
    have tremendous pressure to plead to “something” because of mounting
    legals bills.

This is not
paranoia. This is how the law operates today in this country. As
I noted earlier, innocence no longer is a defense in American courts.

While most
readers rightly are horrified at the reality of modern American
law, there also are those people who believe that “rights of the
accused” should not be in existence at all, and are quite happy
with the state of affairs. For example, the American Civil Liberties
Union at first objected to both the RICO and VAWA statutes because
of the way these laws destroyed due process, but after both had
been in place for a while, the ACLU dropped its opposition and actually
praised the laws.

Why?
The ACLU leaders approved of the outcomes. The RICO statutes allowed
Rudy Giuliani to go after Michael Milken and others on Wall Street,
and the ACLU saw it as a necessary thing in the battle to destroy
capitalism. As for the VAWA, when feminism is involved, ultimately
that is the side the ACLU will choose to support.

Giving up principles
for politics is standard fare these days. For that matter, Peter
Neufeld of the Innocence Project, declared after no inculpatory
DNA was found in the Duke case
that DNA did not matter. This
from a person whose organization has gained freedom for wrongly-convicted
people using…DNA evidence. In other words, many people will give
up whatever principles they have in order to achieve certain political
outcomes.

The substitution
of politics for law ultimately creates South
Park Nation
where accusations automatically bring convictions,
and we have arrived at that sorry point. We are not “in the process
of getting there,” as some might think. No, we are there, something
that most Americans will refuse to realize — until something happens
to them, and by then it will be too late for them.

July
9, 2012

William
L. Anderson, Ph.D. [send him
mail
], teaches economics at Frostburg State University in Maryland,
and is an adjunct scholar of the Ludwig
von Mises Institute
. He
also is a consultant with American Economic Services. Visit
his blog.

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