Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

  Dear colleagues;
 
 I left the country the day after the Duke decision -- a few days after the 
Imus racism/sexism stuff and before the VT massacre.
 
 Before I left, I was able to sepak publicly about Duke and Imus only for a 
brief period of time -- and these are essentially the things I've been 
thinking about. I'm not even going to try to be polite - i'm so furious.
 
 In my opinion, the Duke case was on its way to a politically-motivated 
"vindication" of the perpetrators as soon as DA Nifong was bullied off the 
case with what I consider extortion tactics. I've read the ethical charges 
against him. The only thing I can see that he did wrong was call the 
perpetrators "hooligans" -- and frankly, "hooligans" is a compliment compared 
to what most people called them -- The claims that he didn't turn over 
evidence are nonsense. He gave the defendants everything -- all the DNA 
evidence, and then some. I think he gave them more than they should have 
gotten, frankly - because who she had sex with in the past was NOT relevant 
if, as rumour has it, the defendants' friends provided eyewitness testimony 
supporting the victim's credibility. In any case -- the ethical complaint 
contends not that Nifong didn't turn over evidence but that it was provided 
in clear enough form in the cover sheet on top of the stack of DNA test 
results. This is hardly unethic
 al. 
 
 It is quite possible the dismissal came about after a payoff deal was 
reached between the victim, her personal attorney and the players and/or 
Duke-friendly individuals. It was reported in the Wilmington Journal a year 
ago that two million dollars was offered to the victim if she backed down -- 
and in my opinion, having done this work for 20 years, if 2 million was 
offered a year ago -- her attorney would have understood that there was much 
more to be had if she waited until trial was on the horizon (or some hearing 
at which the truth would have come out). In any case, although the victim 
herself claimed last year that she didn't get an offer of two million bucks 
-- her family DID confirm the offer and they discussed it -- and discussed 
encouraging her to take it. The interesting thing is -- nifong might have 
said -- "i dont' care if you take the payoff -- i'm moving ahead with the 
case in any event" - which he could do if he had eyewitness testimony (very 
rare in rape cases
 , as we all know).
 
 It is extremely disturbing for any victim to take a payoff. Payoffs are a 
form of corruption that allows rich people of all colors to avoid 
accountability for their crimes. In short -- it turns justice into a market 
system - and isn't this at least partly the reason minority and poor men 
disproportionately sit in prisons while rich men walk free (Kobe Bryant -- 
Robert Blake) -- 
 
 Any victim who takes a payoff should be held accountable for her role in the 
systemic injustices that make prevention of targeted violence and other forms 
of discrimiantion so difficult. For this reason -- I not only do not support 
her anonymity any longer -- I support full disclousure of her identity so 
that we can all be made aware when she purchases a mansion and a new car, 
etc. The public has a right to know about corruption and we all need to know 
when wealth trumps truth. No victim's personal wealth is worth the loss of 
integrity to the justice system and to the freedom of all victims of targeted 
violence. 
 
 Speaking of truth -- the public has an absoltue right to full disclosure of 
the entire investigative file at this point. Now that the criminal case is 
over, there is no reason the entire case file cannot be shared with the 
public, unredacted. 
 
 If rumours are true that evidence includes DNA from the victim's body on a 
broomstick and statements from eyewitnesses, friends of the perpetrators, 
then there should be no doubt that the case should have been prosecuted EVEN 
IF the victim wanted no part of it -- and this may well have been Nifong's 
position, which is why he had to be bullied out of the case. The perpetrators 
needed a different, more malleable political animal.
 We won't know for sure until all the evidence is revealed -- and we should 
all pay attention very carefully to the responses from law enforcement 
officials when the public and the media start asking for full disclosure of 
all the evidence.
 
 We also need to hear from police whether they "founded" or "unfounded" the 
allegations. Unlike prosectuors, police are not elected officials, yet they 
are required to decide whether the charges are "unfounded". And Duke, as a 
University subject to the Clery Act, is obligated to determine as well 
whether the allegations were "founded" or "unfounded" and surely Duke 
officials know they cannot rely on the opinion of a prosecutor. They CAN rely 
on the opinion of police, but not the prosecutor. It will be interesting to 
hear what Duke says about the "unfounded" question -- and who they relied on 
to make the determination.
 
 It should be noted that the ethical charges against Nifong nowhere make 
mention of the most serious of prosecutorial ethical rules: the one that 
allows for prosecutors to be punished if they bring charges with insufficient 
evidence.
 
 It is curious, indeed, that attorneys with crminal defense backgrounds (one 
of whom was apparently a Duke alum) decided to bring ethical charges against 
Nifong - but they never cited him -- or made ANY allegation tha Nifong 
brought charges based on insufficient evidence. Hmm. Perhaps this was because 
they knew that if they did that, Nifong would be entitled to respond to the 
ethical charges by laying out ALL the evidence -- something the perpetrators 
didn't want to happen as it might have led to a public revelation of evidence 
such as DNA on th ebroomstick (if it exists) and statements from the 
defendants' friends (if they exist) who witnessed the attack and completely 
corroborated the victim.
 
 There are many, many reasons to believe the charges are valid and the 
decision to dismiss should be viewed with a great deal of suspicion -- but we 
won't know for sure unless and until people mobilize, politically, and insist 
on a full airing of ALL the eivdence in the case - immediately -- so that we 
can make our own judgment about the truth.
 
 On this point let's be extra suspicious of the media. They are SUPPOSED to 
question information spoon fed to them by government officials - even thought 
they know that the defense released only bits and pieces of evidence and, 
according to one reporter with whom I spoke -- refused to turn over about 
1,200 pages of evidence -- yet the media accepted without suspicion the claim 
by the attorney general that the perpetrators are innocent- even as other 
government officials have maintained the exact opposite opinion for a long 
time. Although I read that Nifong issued some sort of lame apology, keep in 
mind that the ethical charges are still hanging over his head which means his 
ability to earn a living is at stake and may have affected his public 
statements.
 
 I got a few calls a couple of months ago that led me to believe the case was 
about to be "resolved" by way of a dismissal. I was asked what i thought the 
public reaction would be. And then we all saw the trial balloons being 
bandied about when some news source reportedly had an inside line on the 
likely dismissal.
 
 If the public reaction to the rumours of a dismissal had been outrage and 
fury -- it is possible the result might have been different. But there was 
nary a complaint. I wasn't surprised because support for the victim and 
pressure on the legal system to let the truth come out has been virtually 
non-existent since day one. This is partly the result of the advocacy 
community being predictably silent about all criminal prosecutions. This 
mindset appears derived from a tired classic liberal idea that it is bad for 
liberty to support any criminal prosecution. This is changing from what I can 
tell -- and a lot of activists are splitting off from traditional advocacy 
organizations specifically so that they can speak more freely in support of 
criminal prosecution - not just so we can "lock up the bad guys" -- but as a 
way of holding the government accountable for FAIR prosecution policies (ones 
that don't allow wealthy defendants to walk free -- or allow targeted 
violence against wom
 en and children to result in deep discounts in punishment compared to crimes 
against property).
 
 On this point -- let me refer back to Don Imus. I said on one program that 
one reason Imus might have felt comfortable using such racist language was 
that he saw the deafening silence from advocates after the Duke case broke. 
Whatever one thinks about the rape allegations, there was no dispute that the 
players said to the women "tell your grandfather thanks for my cotton shirt" 
-- and they used the N-word -- and they threatened to "skin them alive the 
next time" and despite all this, the anti-racism and anti-sexism communities 
were SILENT. It was truly embarrassing -- and my point when I spoke about 
Imus' conduct was that the activists have NO moral authority if they ONLY 
speak out against racism and sexism when it affects "nice" black girls at 
Rutgers -- but they say NOTHING when racism and sexism hurts poor black 
strippers. I literally ticked off all the racist things that were said to or 
about the Duke victim and then when I criticized anti-racism/sexism activists 
for the
 ir silence, Naomi Wolf said it was in part due to the fact that the legal 
system hadn't yet run its course. But the legal system hadn't run its course 
when the Louima case broke in New York -- and all the activists were out in 
full force. Why no similar force against racism directed at a poor black 
stripper in the south?
 
 To this day, I have heard nothing remotely responsible from either community 
as to why they were so silent throughout the Duke case -- 
 
 Waiting until a legal case is over to be outraged is, frankly, much too late 
to do anything meaningful. Targeted violence agaisnt women has been 
under-reported, underprosecuted and under-punished for fifty years -- with 
almost no difference in data despite reforms of 30 years ago that were 
supposed to make a difference.
 
 The truth is -- reforms were, for the most part, a failure. I teach about 
the failure of law reform and it is too complicated to get into here -- but 
the bottom line is -- it failed, at least in part, because activists have 
never interfered with or demanded accountability from, the criminal justice 
system. We go to the legislature and ask for relatively meaningless band-aids 
-- and then we go home. This approach to real social change will always fail 
because you can't legislate respect for human rights and equal protection -- 
and you can't expect anything from legislative reforms if you have no voice 
in the system where the new rules are being applied and interpreted.
 
 I hope we will use these horrific cases as a launchpad for real reform -- 
and I hope real reform means being self-critical enough to admit that we've 
failed over the past 30 years. 
 
 I'm not saying women haven't made progress in some venues, but anti-violence 
work is a human rights issue -- and the promise of equal protection will 
never have real value if we don't fight for it IN THE CRIMINAL COURTS -- 
which means not staying silent when charges are brought out of fear we might 
hurt the cause of liberty - 
 
 My reform presentation is entitled "WHOSE LIBERTY"? because it precisely 
challenges the idea that only the accused enjoys liberty interests in 
criminal matters. obviously, the failure of law to fairly redress targeted 
violence against women is a serious liberty interest (perhaps a different 
type or dimension of liberty compared to the accused -- but is surely 
liberty) 
 
 I've been doing this type of legal-activism for over fifteen years -- 
fighting in the trial courts and in appellate coruts around the country 
(filing amicus briefs and generating impact litigation) to develop new 
doctrinal contours to force better respect for women's equal protection in 
criminal law -- but it is slow-going primarily because advocates are not in 
agreement about what to do -- and indeed, some argue that we should never be 
doing direct advocacy in criminal court. I think it's time for an honest 
conversation about whether the time has come to shift gears.
 
 If this Duke debacle is not the final straw - especially in the midst of 
Imus' remarks and the gendered nature of the VT violence (not to mention that 
the recent spate of school violence included a disproportionate number of 
gender-motivated harm) I don't hold out much hope for the future because I 
don't see how things can get any worse. 
 
 At a minimum, if we can't force a full disclousre of all the evidence in the 
Duke case -- we will be perceived as politically meaningless -- which is 
already a problem given all the silly catfighting and petty nonsense I see in 
the advocacy community. 
 
 It's hard to be effective with so many advocates doing meaningless busy work 
-- and spending so much time each year rewriting grant proposals to stay 
level-funded -- and being held to regulatory standards that forbid them to 
engage in direct legal activism - 
 
 We need private money, new leadership and new ideas. And we need to get mad 
-- really mad. 
 
 Wendy
 
 
 
 
 
 
 
 
 
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