The NYT likens real, consensual sex to a false allegation of rape and frets once more about privacy and the internet.

"Duke Winces as a Private Joke Slips Out of Control," reads a NYT headline. I wondered what Duke winced? John Wayne is too dead to wince, and who cares what some Euro-aristocrat feels? Turns out it's Duke, the University, and the article is about that college girl who made big, detailed PowerPoint presentation about her sex conquests and sent it out to "a few friends" by email, whence it migrated to the web, purportedly to her shame and dismay. Supposedly, the young woman — Karen Owen — didn't mean for her hilarious writing to go viral. Is that so? My experience with writers is that they want readers. But that's a side issue ignored by the NYT, which is fixated on Duke University:

On campus, students were abashed, if not a bit fatigued by the notoriety.

Just four years ago, the Duke men’s lacrosse team was embroiled in scandal when a woman falsely accused three Blue Devils players of having raped her at a party where she was to perform as a stripper. One year later, the charges against the players were dropped and the prosecutor in the case, Michael B. Nifong, was disbarred.

What?! Why liken real sex between consenting individuals to a false charge of rape?! "Notoriety" — that's a ridiculous umbrella term.

Seven of the 13 athletes Ms. Owen wrote about were — or still are — on the lacrosse team. This incident has angered many of those who are already sensitive to their image, according to students and alumni who know them. The lacrosse players contacted would not comment.

Huh? So... those 7 guys aren't the ones who were falsely accused of rape, are they? And are the lacrosse players really so "sensitive" that it bothers them for people to know that they had actual sex with classmates?

On campus, other students had plenty to say.

Kishan Shah, 18, a pre-med student from Carmel, Ind., said the university should not revoke Ms. Owen’s degree, but “they should let her know that she has disgraced the school.”

Who suggested the crazy punishment of revoking her degree? And since when do we punish people for talking about their sexual encounters? If she's lied about someone, maybe they have a defamation claim, but it's hard to see how a young man is hurt by the rumor that he had sex with a woman, even if she thinks he wasn't a good enough lover.

Mike Lefevre, a 21-year-old senior and the president of the student body, said that people were not sure whom to be more concerned about. “Should we be more worried about the young woman’s privacy or worry about the individuals who were named?” he said. “It’s not so clear to us who was the victim, and who we should reach out to.”

Give me a break. If you do things with people, they can talk about it. These days the talk is on the internet. Get used to it. If you don't like it, try limiting your sexual encounters to people who love and respect you. And quit whining.

"The Hofstra University gang rape that wasn't."

Emily Bazelon writes:

Let's agree that something disturbing happened to that 18-year-old woman at Hofstra. Something she feels awful about. Any good, right-thinking feminist, and any good girlfriend, would encourage her to talk to a counselor about her story. The problem is that by going to the police and then recanting, she fit into a new story that backfires on her and on feminism in an ugly way. She becomes the false accuser, and the boys, like the Duke boys, become the victims. In these moments of recantation, all we can talk about is how wrong she was. And then we lose the conversation that happens at a level beneath the law: about how these late-night moments in a random bathroom that everyone regrets can stop before they start. I'm not sure how you do that. But I wish this was where we'd go, now that we know that whatever happened to this girl, it wasn't the legal definition of rape.

Most of the terrible things people do to each other are not crimes. And we also do a lot of terrible — and often sexual — things to ourselves. I think, on the whole, women would be better off if they stepped up to the adult work of taking responsibility for themselves. The men in this incident were awful too, but ladies, say no to awful men. Don't let men define what good sex is. And certainly don't let them act out their idea of good sex and then decide that you wanted something nicer.

What was my original reaction to other reports that turned out to be hoaxes?

Let me answer a couple questions asked by commenters in the previous post, the post that expresses doubt about the report -- filed by Ashley Todd -- that a large black man, after robbing her, became enraged at the sight of a McCain bumper sticker on her car and viciously, lightly scratched a well-formed, upside-down "B" on her cheek.

Dualdiagnosis said:

The juxtaposition is [disconcerting], Crystal Magnum comes out with a book, and two posts later, this. I seem to remember the campus faculty going bonkers on the Duke rape charges, I wonder how the professors will act this time.

If this is a hoax she should be prosecuted.

How about you Ann? Were your reactions as dismissive last time?

Well, let me look that up for you. As a blogger, I am on record. Here is my first post on the subject. Excerpt:

Do you think you know which side is telling the truth in the Duke lacrosse team rape case? You shouldn't.

I've made a "Duke rape case" tag, so you can see all my old posts on the subject. I did not blog very much on this subject. (I see a post on the subject of Eugene Volokh's saying why he wasn't blogging very much about it.) I did post about the professors' letter that explain an earlier letter that supported the alleged victim. I said:

"The disaster is the atmosphere...." -- we're told. The students' perceptions matter and deserve to be "give[n] voice." But the professors don't like how they were perceived by the world outside the university; that was misreading. But if it is perception -- atmosphere -- that matters -- how can you think that you can contribute things to be perceived and avoid responsibility for the effect that you have?

Peter Hoh says:

There was a Madison kidnapping hoax in the spring of 2004. A quick search shows that Althouse did not blog about it.

I wonder if that was in the back of Ann's mind when she said that this incident seemed like a distraction.

I checked too, and I don't think I blogged about it. It was a local story, and it turned out to be a young woman who needed help. Bandying her name about was not helpful. You know, when you're blogging, you're always reaching out to grab at the latest things, but it's still important to think about not making problems worse. But that Madison case was not what popped to mind. Someone emailed to push me to blog about the story and my response was: 1. An expression of doubt, 2. "Doesn't belong in the spotlight," and 2. "Tawana Brawley. Bleh."

Why Tawana Brawley? It was the case of: 1. A young woman who did things to her own body, and 2. A cross-racial accusation.

UPDATE: As predicted. Fake.

The accuser in the Duke rape case is publishing a memoir.

And LaShawn Barber says:

If Crystal Mangum had any grace, she’d ask for God’s grace, get on with her life, make amends the best she can, and raise decent children. But she’s still trying to get paid.

According to the linked article, she's thinking of going to law school. Well, we'll see what she does with this memoir. Even if people buy this book, it won't work as a moneymaking scheme if it provokes a defamation lawsuit.

Duke lacrosse players bring a civil rights case against Nifong and others.

NYT reports:

In a 162-page complaint, Reade Seligmann, Collin Finnerty and David Evans sought redress for what they described as “one of the most chilling episodes of premeditated police, prosecutorial, and scientific misconduct in modern American history.”...

They “knew that these charges were completely and utterly unsupported by probable cause, and a total fabrication by a mentally troubled, drug-prone exotic dancer whose claims, time and again, were contradicted by physical evidence, documentary evidence, other witnesses, and even the accuser herself,” the complaint continued.

Mr. Nifong, who lost his public office, his license to practice law in North Carolina and his freedom during a 24-hour prison stay, used the racially-charged rape case to increase his chances in an election in which he faced “formidable competition in his own party’s primary election,” the complaint said.

Here's the complaint (PDF).

Retaliatory grading by a Duke professor?

Consider this:

A former Duke lacrosse player has filed a civil suit against Duke University and a professor, charging that the teacher unfairly gave him a failing grade after an escort service dancer said she was raped at a lacrosse team party....

The lawsuit said [Kyle] Dowd and another lacrosse player -- neither of whom was charged in the sexual assault -- were in [Kim] Curtis' "Politics and Literature" class last spring. Before the scandal broke, the lawsuit said, both players were passing the course. But after the rape case made news, both players failed the final assignment, and Dowd's final grade was an F. The players were the only ones to receive F's, the lawsuit said....

The lawsuit said Kyle Dowd had a 3.4 grade-point average on a 4.0 scale going into his last semester at Duke. He got a C-plus and a C-minus on the first two papers in Curtis' class, according to the suit. Curtis had told students they would be graded on three papers and class participation, with each counting 25 percent toward the final grade.

When Dowd contested the grade, Curtis sent him an e-mail message saying she had failed him in class participation because he had missed the last month of the class, according to the lawsuit. Dowd had to miss five class sessions to meet with lawyers in the investigation that focused on the team, the lawsuit said.

You missed a month of class when class participation is 25% of the grade? It seems to me that you ought to have better evidence of the defendant's wrongdoing before you file a case... Hey! What does that remind me of?

ADDED: This post got a lot of comments, nearly all of them siding with the student and many of them criticizing me for seeming to side with the professor, so I'll say a little something more. First, this is a very minimal post. It does not directly express my opinion of the whole affair. So let me make several additional points that may let you see how I think about these things:

1. I don't like to see lawsuits, especially by students who are suing their teachers because they don't like their grades. At some point, I accept the need for lawsuits. For example, when I went to college, at the University of Michigan, one of the professors was reported to tell his students that women shouldn't become what he was teaching students to be and that therefore women could only get, at best, a B in his course. If these reports were true, he clearly deserved to be sued.

2. Complaining about your grade when you've missed a month of class looks very bad to me. His excuse -- that he was always meeting with lawyers -- sounds lame. Commenters who disagree are extracting material from his legal complaint. They need to recognize that they are looking at the student's version of the story. You should wait to hear all the facts before being so sure you know what happened. And if you don't see that you're acting like the people who assumed the truth of the prosecutor's side of the rape story, you need to think again.

3. Obviously, many teachers are biased in how they present material in class and how they judge what the students write. It may well be that Curtis has a very strong point of view and isn't fair to students who say divergent things, but I don't think students should sue teachers for that. Your remedies are mostly internal to the university. There is not a good role for courts to play here. Students will often say that a teacher has been "unfair," and they are sometimes right. But think what would happen if courts welcomed lawsuits like this. How many students would find ways to say their teachers had some personal grudge about them? Do you really want all these lawsuits? The cost of the lawyers for the teachers will need to be reflected in the tuition that all students pay.

4. The students who were involved in the Duke incident have reason to be outraged about what happened to them, but we should also see that they are playing hardball and that it is possible for them to go too far.

"We think the ad's authors were right to give voice to the students quoted, whose suffering is real."

Here's the new open letter from various Duke University professors, saying why their original ad -- "This is a social disaster" -- is not something to apologize for:

The ad has been read as a comment on the alleged rape, the team party, or the specific students accused. Worse, it has been read as rendering a judgment in the case. We understand the ad instead as a call to action on important, longstanding issues on and around our campus, an attempt to channel the attention generated by the incident to addressing these. We reject all attempts to try the case outside the courts, and stand firmly by the principle of the presumption of innocence.

As a statement about campus culture, the ad deplores a "Social Disaster," as described in the student statements, which feature racism, segregation, isolation, and sexism as ongoing problems before the scandal broke, exacerbated by the heightened tensions in its immediate aftermath. The disaster is the atmosphere that allows sexism, racism, and sexual violence to be so prevalent on campus. The ad's statement that the problem "won't end with what the police say or the court decides" is as clearly true now as it was then. Whatever its conclusions, the legal process will not resolve these problems.

The ad thanked "the students speaking individually and...the protesters making collective noise." We do not endorse every demonstration that took place at the time. We appreciate the efforts of those who used the attention the incident generated to raise issues of discrimination and violence.

There have been public calls to the authors to retract the ad or apologize for it, as well as calls for action against them and attacks on their character. We reject all of these. We think the ad's authors were right to give voice to the students quoted, whose suffering is real. We also acknowledge the pain that has been generated by what we believe is a misperception that the authors of the ad prejudged the rape case.

We stand by the claim that issues of race and sexual violence on campus are real, and we join the ad's call to all of us at Duke to do something about this. We hope that the Duke community will emerge from this tragedy as a better place for all of us to live, study, and work.

"The disaster is the atmosphere...." -- we're told. The students' perceptions matter and deserve to be "give[n] voice." But the professors don't like how they were perceived by the world outside the university; that was misreading. But if it is perception -- atmosphere -- that matters -- how can you think that you can contribute things to be perceived and avoid responsibility for the effect that you have?

ADDED: La Shawn Barber is scathing.

MORE: I've been thinking a lot about this post -- minimal as it is. There is so much behind this that could be said, so much going back over the 20 years that I've been a law professor. My office for the last decade or so was once occupied by my brilliant colleague Patricia Williams. She wrote something long ago about Tawana Brawley that maybe not everyone remembers, but you should know if you mean to find your way around American academia. I'll put it in context in this 1997 article by Neil A. Lewis (TimesSelect link):

Critical race theorists, who are on the faculty at almost every major law school and are producing an ever-growing body of scholarly work, have drawn from an idea made popular by postmodernist scholars of all races, that there is no objective reality. Instead, the critical race theorists say, there are competing racial versions of reality that may never be reconciled.

Many theorists say that because few whites will ever be able to see things as blacks do, real racial understanding may be beyond the nation's reach....

Some theorists go so far as to say that what really happened in a particular incident may be no more important than what people feel or say happened. For example, some argue that even though Tawana Brawley, then a teen-ager, made up her account that a gang of white men, one with a badge, raped and defiled her in New York in 1987, her story is still valid because it offers truths about the oppression of black women.

In her book "The Alchemy of Race and Rights" (Harvard, 1991), Prof. Patricia Williams of the Columbia University Law School appeared to suggest that it made little difference whether Ms. Brawley had made up her account. The teen-ager, Professor Williams wrote, was the victim of an unspeakable crime "no matter who did it to her -- and even if she did it to herself."

"Her condition was clearly the expression of some crime against her, some tremendous violence, some great violation that challenges comprehension," Professor Williams said. "Tawana's terrible story has every black woman's worst fears and experiences wrapped into it."

Critics of Professor Williams's comments, however, note that a New York State grand jury investigated Ms. Brawley's story and concluded that she had made it up. Professor Williams, Professor [Suzanna] Sherry wrote, seems "unable to distinguish between Brawley's fantasized rape and another woman's real one."

In a recent interview, Professor Williams said she had been misinterpreted. She meant, she said, that the debate about whether Ms. Brawley was telling the truth obscured that she was a troubled minor.

"Her needs were not dealt with, as they should have been with any child," Professor Williams said. Further, Ms. Brawley was transformed into a stereotype of "black women as hard women who can never really suffer any violation," she added.

Misinterpreted. Remember that word. Professors like it. We mean well. We mean to demonstrate empathy and outrage in all the right places. And if you don't credit us with the grand ideals we intended, we will say you don't read well enough. Try again.

MORE: Another brilliant colleague I'm lucky enough to have is Donald Downs -- who wrote this book -- and teaches in the Political Science department here. He emails me this:

The Duke case is symptomatic of the victimhood syndrome has beset too many campuses, and which (as one poster discusses) undermines the agency and vitality of its putative beneficiaries. The case is also symptomatic in another, less recognized sense: members of the economics department published their own dissent to the now infamous "88" and the campus climate that was hostile to due process, and got hundreds of signatures from alumni and other groups. This is precisely what campuses like Duke need: counter-mobilization by faculty who are fed up with this kind of climate and behavior. Perhaps there is hope for Duke, after all, but faculty have to take a stand against the inanity.

Professor Downs, you should know, has done just the thing he recommends and organized the faculty at his home institution.

“He feels very disappointed that he can’t go on for her."

A quote from the lawyer representing Michael B. Nifong, the prosecutor in the Duke rape case, who is now asking to withdraw from the case in light of the ethics charges against him. I'm reading this in the NYT, which is covering Nifong's problems quite a bit more sympathetically than what I've read elsewhere:

Mr. Nifong’s friends told him he had two choices: dismiss the case or ask the attorney general to take it over. It was a bitter decision, friends said. His reputation hung in the balance. Mr. Nifong decided he had to do something he had left to his investigators over the 10 months since the alleged assault: talk about it directly with the woman he called “my victim.”

In a two-hour meeting at his office on Thursday, Mr. Nifong and an aide talked about the choices, an official involved in the case said. He told the accuser that a trial would be brutal, but that he had already talked with the attorney general’s special prosecutions unit and trusted that office to give the case a fair review. He asked what she wanted to do.

She was concerned about the effect of the case on Mr. Nifong’s career, the official recalled. She wanted to sleep on the decision. She continued to insist she had been sexually assaulted.

On Friday, she and Mr. Nifong spoke by telephone. She again said she wanted to go forward. Although she was not happy about Mr. Nifong’s giving up of the case, the official said, she said she understood his reasoning and pledged to cooperate with any new team.

When a blogger skips a topic you think he should be blogging about.

Do you make noise about his silence? Eugene Volokh tries to explain why you shouldn't expect a blogger to cover things that are not directly in his area of expertise. It seems that some Volokh Conspiracy readers think it means something that such a prominent lawprof blog has not followed the Duke rape case.

Look, if some of us want to take the time to develop an expertise on the Duke rape case, we'll post about it. And occasionally some of us may post non-expert comments based on some outside coverage that we found interesting; you'll generally notice that the posts are non-expert posts, and should be taken either as potentially useful pointers to others' work or as light entertainment, as the case may be. But why not appreciate the fact that we tend to post about subjects we know well? Why try to goad us into commenting about subjects that we don't know well?

Hardcore goaders can come back with outrage at the failure to be sufficiently interested in the subject to post in the nonexpert style.

Since a blog looks like a series of updates -- one on top of the previous one -- readers develop the illusion that if news happens, it should register on the blog. On a blog that allows comments, I think readers come over because they want to talk, and then they're disappointed that the blogger hasn't opened up a place to talk. You've come to think of the blog as your little coffeehouse, and you look in and see that there is no table.

Sometimes, I'll post just to set up that table. But I'd still want to have a line or two to say that is distinctive and not just a statement that I saw the news today. (Oh, boy.) But then if you do add that distinctive line or two and you're a prominent lawprof blogger, there's a decent chance it will show up quoted in MSM somewhere (with the name of your school). In that new context, people won't be able to tell that it was just an offhand remark in bloggerly style, as opposed to sober expert reflection.

Oh, the travails of a lawprof blogger!

Suddenly, the Duke lacrosse team rape charges are dropped.

The NYT reports:

Michael B. Nifong, the Durham district attorney, made the decision after learning on Thursday that the woman who complained of rape could not be sure that she had been penetrated with a penis, a distinction that would determine whether what happened to her meets the legal definition of forcible rape in North Carolina, according to court papers filed today.

When she was interviewed on Thursday by an investigator from the district attorney’s office, the woman said she was penetrated from behind while she was bent over with her face toward the floor, but did not know with what, according to a person close to the investigation who would only speak on condition of anonymity.

But kidnapping and sexual assault charges remain.

A week ago, a laboratory director admitted in court that in the wake of an agreement with Mr. Nifong, he had violated his own procedures and withheld results showing that none of the lacrosse players’ DNA had been found on or in the accuser’s body.

“This comes a week after it was shown they intentionally withheld exculpatory evidence on DNA tests,” [defense lawyer Joseph B.] Chesire said. “That begs the question of the extreme coincidence of the timing in which these two things occurred.”

That does look terribly suspicious.

"His case is going to hell in public opinion. He's suffering death by a thousand cuts."

The NYT looks at the long, puzzling silence of Michael B. Nifong, the prosecutor in the Duke lacrosse team rape case:

Several lawyers who know Mr. Nifong say he is no showboat and is a highly ethical prosecutor. But other lawyers said he was too rigid, too inflexible. Julian Mack, a lawyer in Durham who represented a member of the lacrosse team who was not charged, said: "He jumps to conclusions, makes up his mind, and that's it. His personality is that he's very stubborn."

[H. Wood Vann, a lawyer in Durham,] said Mr. Nifong could drop the case, but the political price would be high. "He'd have hell to pay from the African-American community," he said. "They'd say, 'Give her her day in court. What do you have to lose? If you lose, at least the jury made the decision.' So he's kind of stuck."

What do you have to lose? It's frightening to think of a prosecutor taking that attitude. And it seems that hell is already demanding payment.