Rape is, of course, a nasty crime, next only to murder and dismemberment in the psyche. Gang rape, even worse, which we associate with Russian soldiers wrecking revenge on Germans, or African paramilitaries in Rwanda and elsewhere, an instrument of "worse than death" torture.
In some cultures, a woman raped is put to death by her own relatives, on the basis that she should never have been in a position to be raped, or that she has been so defiled she disgraces the family by merely continuing to exist.
Rape stories evoke among the strongest emotional responses in the listeners.
So the accusation of rape is among the most extreme of any accusation. The classic movie, "Rashomon" tells the story of the murder of a Samurai and the rape of his wife from four different perspectives and addresses the subjective nature of truth, testimony, and fluidity of memory.
Amidst the accusations of gang rape by Jane Doe of Cornell is the whole nature of memory and "repressed memories" which had a run in the popular press some years ago when women came forth with stories of molestation by fathers, uncles, grandfathers, which at times echoed the famous Arthur Miller play, "The Crucible" which was seen as an allegory related to false accusation and public hysteria of the Joseph McCarthy era.
Regarding the Jane Doe accusations, the New York Times has run scores of stories on this case, along with a podcast. Most of the stories are focused on the reaction of women, and defenders and protectors of women, who see this case as not just a case but a cause: The victimization of women who are not listened to when they allege rape, the devaluation of women, the evil of a paternalistic society policed by men who think every woman claiming rape "Had it coming" or "Asked for it."
The trouble with the journalism of this case, and with the panicky reaction by the Cornell administration is that nobody much has held up a hand and said, "Let's await the court. Let us proceed deliberately and use the rules of evidence demanded by Due Process in the setting of presumption of innocence, and have faith in our court system to get at the truth."
I am trying to do that now.
Listening to the hour long NYT podcast, where a journalist walked through some of the facts of the case as it emerges from the hundreds of pages of Jane Doe's interview with first Cornell police and then Thompkins County police, some facts emerge which convinced me to withhold judgment until all the facts are laid out at trial.
The "facts" as the NYT podcast lays them out are this:
1. The day of the frat party, Jane Doe had been robbed and was in an agitated state before going to the bar "Moonies."
2. From the bar, she phoned a boy who she had already had or intended to have a sexual relationship, intending to meet him at a fraternity party later. She drank alcohol at the bar, willingly and on her own volition, and by the time she left she was "high" but she walked to the frat house without getting lost or falling.
3. When she arrived at the frat party that boy asked her if she wanted to do a threesome. The second male said to her, "I can understand if you don't want to do this, so just say no and no problem." But she said, "We are all consenting adults here." Sometime before or during this group sexual activity Jane Doe imbibed ketamine along with more alcohol. Whether the frat boys used ketamine or how drunk the males were is nowhere mentioned
4. At some point, likely just before having sex with one of these two males she performed fellatio on one of the boys. She did not ask his permission. That male, who was among those Jane Doe named in her suit later said, "If we are talking about people subjected to sex without permission, then she is guilty of performing sex on me without my permission."
5. At some point, some frat brother discovered the group sex event and sent some sort of online message about this girl, who he suggested was taking on all comers and inviting others to join. Other frat boys arrived and had sex with Jane Doe. What her state of consciousness was as the sexual encounters progressed is in dispute. A total of seven frat boys are named in her suit.
6. Whether she went home that night or spent the night with her boyfriend is unclear but the next day the original boyfriend texted her and said, "I'm sorry things went down that way last night," and she replied, "Not a problem. I still like you and want to see you again."
7. The fraternity house threw a Halloween party about two weeks later and Jane Doe wanted to go and planned to attend, but the president of the fraternity called her and told her she should not attend because word of her night with multiple partners had got out, and she was now persona non grata, at least for now. She expressed indignation to the frat president and complained to her boyfriend about not being allowed to go to the party.
8. Members of her sorority, hearing the story, either from her or from others told her she had been violated, likely raped and urged her to report the frat boys she had had sex with as a rape. She heard from other students who called her a "slut." The males named in the suit say that Jane Doe was fine with the group sex until she had been "slut shamed" and felt her reputation had been impugned.
(This is one of the most mystifying aspects of the story as the NYT tells it, at least to me. In a culture where sex, group sex and sexual freedom is thought to be complete, how can anyone be accused of being a "slut" unless she demands payment for the sex? If she is enjoying the sex, is she a slut based on the numbers of sexual partners she has on one occasion? When "hook up" nights are the custom at colleges, where girls and boys are having sex with people they do not know, but simply for the pleasure and release of having sex, how does one girl get selected as being too promiscuous? If the idea of promiscuity has been dismissed as prudishness, where does the line get drawn for one girl who has too many encounters over a defined period of time? Are all women who participate in an orgy "sluts"? And what of the men?)
There is an entire culture invested in group sex. The artist, Terry Rodgers, has made a good living portraying group sex orgies, depicting the participants as lost souls, unhappy and vainly searching for something which will forever elude them.
Terry Rodgers painting
9. The complaint emanates in no small part from Jane Doe's assertion that she was so drunk and impaired that she could not give actual consent to sex. Nowhere in her complaint does Jane Doe mention whether any of the males she accuses of rape was drunk. Some of the accused have said they were drunk, and every bit as impaired as Jane Doe.
So those, are the "facts" as far as the media can provide.
What to make of all this?
When British soldiers shot down Boston civilians on the snowy night of the Boston Massacre, the whole city was enraged and, amazingly, the Crown allowed the soldiers to be put on trial for their actions. (George III, apparently did not tolerate ICE agents in 1770.) At their trial, John Adams, acting as the defense attorney for the soldiers, elicited the facts that the soldiers were first brought under attack by a mob which outnumbered them--over 200 citizens against 9 soldiers. The order to "Fire" likely came from the crowd, taunting the soldiers, not from their officer.
"Facts are stubborn things," John Adams famously said.
The soldiers were acquitted of murder although two were, for some reason, convicted of involuntary manslaughter.
That was Due Process and that got written into the Constitution, by, among others, Adams.
None of us can know, short of sworn testimony what really happened that night at the fraternity house at Cornell, and what "really" happened may be a Rashomon like fluid truth.
From the perspective of the males involved, they had a willing partner who did not fight back but welcomed their embraces, and trying to decide who was more impaired than whom is an impossible task.
From the point of view of Jane Doe, she had initially not been very much disturbed, but only after she told her story to her roommates decided she had been abused and raped. This is now explained as a psychological phenomenon known as "processing" the event, that she was in such a state of shock she was unable to bring charges.
But if that phone call, two weeks later to the frat president, demanding she be invited to the Halloween party is substantively true, then, to me at least, this begins to sound more like a woman scorned than a woman in shock. Why would a woman who had undergone a traumatic, horrific event be eager to revisit the scene, the very fraternity where it happened, where she would likely see and "party with" the boys who she says had raped her.
That would be a very peculiar reaction to rape, I would think, "still processing" nothwithstanding.
What is appalling, at this stage, is the rush to judgment. However the trial turns out, that the accusation is being treated as a conviction is the current shame.
Extraordinary claims require extraordinary evidence, Carl Sagan (a Cornell professor) once said about the claim of extraterrestrial visitations to planet earth.
The crime of gang rape is so horrific we really ought to take a deep breath and say, "If this is true, then seven young men (if they were old enough at the time) deserve to spend years in prison. But we need to know if the facts support the accusation."
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