Thursday, June 3, 2010

The case against Brown University: a young man strikes a blow for all presumptively innocent males deemed guilty by reason of penis

We are following the story of the expelled Brown University student who has sued the school, alleging that he was kicked out more than three years ago after being falsely accused of rape by the daughter of a major donor and fundraiser for the Ivy League school.  We could write a much lengthier piece on this because the case raises many troubling questions, but the lessons it teaches are the same we've seen over and over and over: young men often watch as their lives are destroyed or badly damaged based on nothing more than the accusation of rape by a lone female. Here's the story of one young man, and his family and attorney, who are striking a blow against the usual state of affairs.

The expelled student's lawsuit alleges that no sexual contact occurred, that no criminal charges were ever filed against him, and the school never told the police about the rape allegations and accepted them as true without investigating.  The AP reported that the judge assigned to the case indicated that he was troubled by Brown's failure to report the allegations to police: "The thought that with all the people involved in this matter at different levels, a determination is made to not tell law enforcement, even the Brown Police Department -- I'm having trouble getting that," the judge said. 

The lawsuit alleges that the donor father of the accuser, a Brown alumnus who has "donated and raised very substantial sums of money," was in regular contact about the matter with school administrators and contacted university president Ruth Simmons directly.  The expelled student maintains he did nothing wrong, but agreed to withdraw from the school after entering into a confidential agreement with the accuser’s family. He says he signed the contract under duress. Under that agreement, the accuser, who maintains that she was raped, agreed not to pursue a criminal complaint or take other legal action against him. The AP reports: "A Brown administrator agreed to reflect on his transcript that he had withdrawn for 'medical reasons' but also told him he was ineligible for readmission, even though he had never been found responsible for rape."  The expelled student subsequently transferred to Bucknell University.

The Expelled Student Is Identified; His Accuser's Identity Is Shielded

The expelled student's identity is well known. He is William McCormick III, a nationally ranked wrestler in high school who is now forever tainted by an unsubstantiated rape claim. If his lawsuit is meritorious, it means that not only is his accuser a false rape claimant but that her father has wrongfully interfered with McCormick's contractual and other rights.  Yet not only is McCormick's accuser's identity protected by the news agencies and news outlets, but so is her father's because to name him would identify the daughter.  See here: "The Associated Press generally does not identify people who say they were sexually assaulted and is not naming the father to avoid identifying the woman here."  (Two points: (1) One wonders if a female bank robber could avoid being named by the AP by merely alleging that a male bank teller tried to rape her as she was taking the money; and (2) Query: by identifying the alleged rapist of an acquaintance, doesn't the AP also implicitly identify the acquaintance to every single person familiar with their relationship?  Of course it does. The asymmetrical anonymity afforded rape accusers but not the presumptively innocent accused of rape is a punitive concoction intended to shame an entire gender, the innocent along with the guilty, but that is the subject of other posts.)

The Alleged Rape

What do we know about the alleged rape?  The accuser's actions regarding the alleged incident suggest the evolving narrative of a woman groping for victimhood, not a rape victim. According to the AP: "On Sept. 5, 2006, the first day of classes and one week after orientation, the [accuser] and her roommate approached their resident adviser — a fellow student — to complain that McCormick was acting 'creepy' and following her around. At 2 the next morning, the adviser spoke with Carla Hansen, an associate dean of student life.The young woman said McCormick was telling people they were dating when they weren't, calling her up to 20 times a day and once punched a wall in anger and made a threatening remark — 'I could have hurt you' — after seeing her hug another guy, Hansen wrote administrators in a Sept. 6 e-mail recapping the allegations.The student spoke with Hansen later in the morning of Sept. 6, refusing to name her alleged stalker for fear of getting him into trouble. She also referenced her father, though it's unclear why. 'She said that her father was an alum and a big supporter of Brown, and that she wanted to love Brown, too, and did not want to have anything bad happen to this other student,' Hansen wrote in the e-mail. Conversations between Hansen, the accuser and the resident adviser continued throughout the day. The student spoke that afternoon with a campus victim rights' advocate, and later that evening, asked to temporarily drop the matter so she could study and attend a friend's birthday party. That night, she spoke to her father, who urged her to identify her alleged stalker — which she did. At 10 p.m., the father also called the home of Brown administrator Russell Carey, according to an e-mail from Carey. The following day, McCormick was formally barred from contacting her. She was directed to avoid him, as well."

So when did the rape occur?  Incredibly, on September 6, the day after the accuser reported that Mr. McCormick was acting "creepy," the day she had numerous discussions about his acting "creepy."  But she waited a full week to report that the same "creepy" guy raped her?  Of course.  When it comes to rape, any bizarre or other-worldly behavior is said to be consistent with the behavior of a rape victim.  According to the AP:  "A Sept. 13 e-mail to administrators from the student's resident adviser accuses McCormick of having violated the no-contact order by visiting the woman's room and trying to speak with her. But for the first time, the e-mail — sent to various administrators — also describes an encounter the woman said had occurred on Sept. 6, the day after she first complained to her RA. On that evening, she said, William McCormick entered her room as her friends were at dinner. As she tried to study, she said, he forced her onto the bed, pushed her up against a wall, tore through her boxer shorts and raped her.  She complained of bruising and sore ribs."

McCormick Barred From Campus

Upon learning of the allegations, one of Mr. McCormick's wrestling coaches said: "He was really scared, really terrified." It is well to note that Mr. McCormick was 18-years-old when he was expelled, barely more than a boy, and the terror of a false rape claim is something even older men typically find almost impossible to cope with.  Shortly thereafter, the young man was barred from campus, effective immediately.  "This action has been taken for your best interests and that of the community," Dean of Student Life, Margaret Klawunn wrote. It is impossible to fathom how this action could have been, in any sense, in Mr. McCormick's best interests, but the chutzpah in making this statement is something to be admired.

The AP wrote: "Though college administrators say they routinely defer to self-identified victims on involving law enforcement, the judge hearing McCormick's lawsuit said he was troubled police weren't called.  'The thought that with all of the people involved in this matter at different levels, a determination is made to not tell law enforcement, even the Brown Police — I'm having trouble getting that,' U.S. District Judge William Smith said at an April hearing."

The AP reporter seems to be suggesting that the judge indicated that the rape allegation should have been referred to police.  The judge's comment could instead be read as a suggestion that the school itself didn't think the claim rose to the level of "rape," because otherwise, it would have alerted the police, and therefore, the de facto expulsion of Mr. McCormick appears not to comport with the school's own policies.

The Lessons

We don't know the facts, but from the indications we have (set forth above), it seems plausible that the school rushed to judgment in barring Mr. McCormick from campus. It seems plausible that the school applied the usual presumption schools almost always apply to someone in Mr. McCormick's situation:  guilty by reason of penis. 

The suggestion that the school should have notified authorities is troubling because it assumes that the accuser is not a free moral agent but is more akin to a child.  That suggestion also seems contrary to the feminists' standard mantra that to force this accuser to press charges would discourage other women from "coming forward." 

From our perspective, when it comes to rape, until a conviction is obtained, an accused male should be presumptively innocent -- under law, in college, at work -- everywhere.  The academy's Star Chamber, kangaroo sexual assault proceedings, which routinely dispense with the usual notions of due process when the accused is male, scarcely provide the justice that we, as a free society, supposedly cherish.  Sadly, we seem to cherish that justice far less, if at all, when it comes to males accused of rape.  Especially when they are college athletes.

Should Mr. McCormick be permitted to pursue his case despite the alleged settlement agreement?  Yes. That agreement is unenforceable because it is against public policy.  The following is from the most respected and widely cited treatise on contract law in the United States: " . . . [A]ny bargain for the purpose of stifling a criminal prosecution, whether or not the bargain is criminal, is always contrary to public policy and unenforceable. These contracts are unenforceable even though the prosecution in question is for a mere misdemeanor and whether or not the prosecution has begun at the time the parties make the bargain. Bargains of this kind can take various forms, including promises not to prosecute, promises not to give evidence to the authorities or to conceal evidence, and promises to cause the dismissal of a prosecution already begun."  Corbin on Contracts, § 83.1. 

Mr. McCormick's defense of duress to void the agreement is meritorious. As one court has written in affirming the duress defense under similar circumstances:  "It is an affront to our judicial sensibilities that one person's ability to seek another's prosecution can be bartered and sold the same as commodities in the market place."  Germantown Manufacturing v. Rawlinson, 491 A.2d 138 (Pa.Super. 1985).

We are hoping that this presumptively innocent young man is able to clear his name once and for all, to the fullest extent possible, and obtain justice, not to mention a sizable monetary judgment, for his ill-treatment in being presumed guilty.  We applaud him and his family, and his attorney, for trying to strike a blow for all men and boys accused of rape who are not treated as presumptively innocent.