Tuesday, June 5, 2012

The Max Nicastro case, and why the presumptively innocent should not be convicted in the court of public opinion

Last February, Max Nicastro, a star hockey player for Boston University, was charged with sexual assault. According to investigators, a female student called campus police early in the morning of Sunday, February 19, just hours after Mr. Nicastro scored a goal in BU’s loss to UMass Lowell. She was upset and tearful and said she had been raped by Mr. Nicastro. She was taken to a nearby hospital.  Campus police dragged Mr. Nicastro out of bed at 6:30 that morning and hauled him off to jail where he was held on a $25,000 cash bail. When he was arraigned, almost a dozen Boston reporters and cameramen were in attendance.  BU quickly announced that Mr. Nicastro is no longer enrolled as a student, but the details of his departure were not revealed.
Mr. Nicastro was the second BU men’s hockey player to be charged with sexual assault in recent months.  In late 2011, according to Deadspin, "senior forward Corey Trivino—the Terriers' leading scorer at the time—was arrested in December after he allegedly barged into a female resident assistant's room three times in a matter of minutes. Each time, Trivino is accused of trying to kiss and grope the RA before finally lying down on her bed and insisting he was sleeping there. Trivino has pleaded not guilty and was thrown off the team."
Charges Dropped: Last week, the Suffolk district attorney's office announced that prosecutors determined they could not prove their case against Mr. Nicastro beyond a reasonable doubt: “After a three-month investigation and a comprehensive review of the evidence it developed, prosecutors determined that they could not meet their burden at trial of proof beyond a reasonable doubt and had an ethical obligation not to pursue it further,” said a Suffolk County District Attorney spokesperson. Their investigation included interviewing the accuser and multiple witnesses, as well as examining medical evidence and video surveillance tapes.  The accuser, the district attorney's office revealed, is a student at BU who continues to maintain that she was sexually assaulted by Mr. Nicastro in his dorm room. She was an acquaintance of Nicastro’s, but they were “not in a relationship." 
Thus, we know only that a rape accusation was made against Mr. Nicastro by an acquaintance following something that happened in Mr. Nicastro's dorm room, and that the District Attorney's office has concluded that it can't prove rape at trial.
Katherine Redmond's Comments:  Katherine Redmond, founder of the National Coalition Against Violent Athletes, publicly ripped the decision to drop the rape charges.  Her comments are a concern.
“Until you get a prosecutor who is really gung-ho about sexual assaults, this isn’t going to change,” she said. "Does it have a chilling effect? Of course it does. This is a constant battle we have to deal with.” 

Ms. Redmond has a worthy agenda to pursue, but not at the expense of a presumptively innocent man who's been cleared of rape charges. Her comments in this instance are not only unjust but unconscionable. It is settled beyond even a cavil that charges should not automatically be brought on the basis of an accusation. A prosecutor is the gatekeeper of justice who should only bring charges, as Prof. Bennett L. Gershman has described it, when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt. To bring charges when there is any less certainty does not fulfill the prosecutor's duty to do justice but invites miscarriages and the possible conviction of an innocent defendant.  A prosecutor most assuredly does not fulfill his or her duty to do justice merely by being "gung ho."
The district attorney's office dismissed Ms. Redmond's comments out of hand: "The standard of evidence is the same no matter who the defendant is or what that person’s station in life might be.  We wouldn’t terminate charges against a person because he or she is an athlete, and it would be just as unconscionable to pursue those charges without evidence because that person is an athlete."
Ms. Redmond also says that the decision not to charge Mr. Nicastro will have a "chilling effect" on women who have been raped. This comment is a tawdry attempt to politicize a very serious legal issue at the expense of a presumptively innocent young man.  Beyond that, it does a grave disservice to rape victims to suggest that merely because charges weren't brought in this particular case, those victims ought to think twice about whether they can get justice. COTWA does not know why charges were dropped, and neither does Redmond.  Any suggestion that the district attorney's office didn't do its job in the absence of evidence supportive of such a suggestion is irresponsible in the extreme. To better serve both rape victims and the presumptively innocent accused of heinous sex crimes, we need to move the discourse to a more mature level.  It is comments such as Redmond's, and not the district attorney's decision not to charge Mr. Nicastro, that are likely to dissuade rape victims from reporting their victimizatin. 
The Boston-based victims' advocacy group, Jane Doe Inc., for one, believes the prosecutors did their job in this case.  "What would raise concern for us is if her allegations weren’t taken seriously by the police, the district attorney’s office or the school. None of those things happened,” said agency spokeswoman Toni  K. Troop. “We know this DA has been consistently diligent about pursuing these cases." 
Rape victims need to be encouraged by both victim's advocates and advocates of the wrongly accused to report their victimization. Law enforcement personnel must exhibit sympathy, kindness, understanding, and above all, objectivity, as they investigate the claim.  But the presumptively innocent and those cleared of charges should not be used as props for victims' advocates to press even worthy agendas.
Nicastro Assumed Guilty From the Outset: The Nicastro case has been rife with assumptions of guilt from the outset. Intolerance of rape is a noble and proper impulse, but assuming the guilt of an accused man on the basis of an accusation alone is not.
From the time of Mr. Nicastro's arrest, the comments of persons quoted in the news stories about this incident did not leave much room for the possibility that Mr. Nicastro was innocent.  One student was reported as saying this: "Disappointing seems like a weak word to use because, for me, it's just terrible that a person did that."
Even this past weekend, some of the comments that accompanied the news story in BU Today reporting that the charges had been dropped were disturbing in suggesting that the accusation alone warrants punishment:  "True, he’s not facing jail time anymore, but he was kicked off the hockey team and expelled from BU. I would say that’s a fair punishment in a situation that seems to have little evidence."  And: ". . .  If we are really going to discuss false rape accusations we need to stop pretending they happen to middle-class white men . . . ."  And: "Personally, I think Nicastro getting kicked out of BU is a pretty just punishment. . . . . People need to know that sexual assault will lead to consequences. " And: ". . . . As a woman, I HATE FALSE RAPE CHARGES (though I don’t think this was the situation here). . . . ."
To his credit, Kenneth Elmore, Boston University Dean of Students, has maintained his objectivity.  After Mr. Nicastro's arrest, Dean Elmore was asked if he was concerned that there might be a culture among hockey players or athletes generally contributing to misconduct. Dean Elmore said he wouldn’t use such “a broad brush” until the Nicastro case is resolved: “Before we make that kind of conclusion, we’ve got one situation right now that we’ve got to continue to investigate.”
A Disturbing Culture at BU Hockey?  It is unjust to assume Mr. Nicastro's personal guilt, but that doesn't mean it is necessarily unjust to investigate reports of rowdy sexual antics among BU hockey players. There are reports of scantily clad young men repeatedly banging on the dorm doors of young women hoping for an invitation. The school is investigating the culture of its much worshipped hockey team.
Does the alcohol-fueled hook-up culture, combined with athletes worshipped by groupies and placed on pedestals since they were pre-pubescent (-- some describe them as as narcissistic, obnoxious, entitled assholes, although broad-brush stereotypes like that are almost always unfair) make for a toxic culture inhospitable to both women and academic civility?  And does an atmosphere that encourages the barnyard rutting of aggressive young men enable those few who might be sociopaths and predisposed to sexual assault to act out their darkest impulses?  The answer is beyond both the scope of this article and our expertise. It is fair to note that the literature we've seen indicates a disproportionate incidence of sexual assault complaints lodged against male college athletes.

Even assuming Katherine Redmond's advocacy on behalf of victims and would-be victims of male college athletes is not misplaced, it doesn't advance her agenda to insist that a particular athlete, who has been cleared of charges after what seems to have been an exhaustive investigation, should serve as the stand-in for all the athlete assholes of the world.