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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