Wednesday, July 23, 2014

Huffington Post's Tyler Kingkade says FIRE's advocacy in sexual assault case led to harassment of sexual assault witnesses

UPDATE: 12:46 PM: FIRE has responded to the Huffington Post with details that we didn't know. This makes the Huffington Post's reporting on the case all the more alarming: http://www.thefire.org/public-records-and-the-occidental-sexual-assault-controversy/ 
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Several months ago, FIRE went to bat for a former student of Occidental College who was expelled  in connection with an alleged sexual assault. The expelled student sued the school. Here is how FIRE describes the case:
Under pressure from the federal government to take action on sexual assault, and in the wake of a multi-plaintiff lawsuit from attorney Gloria Allred last year, Occidental College has found a student “responsible” for sexual assault despite the fact that police refused to charge him with any crime and text message evidence indicates that both parties consented to having sex.
According to FIRE, the accuser was counseled by an Occidental professor "who, according to the accuser, said that Doe 'fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was "from a good family."'"

Police investigated, and concluded that "both" of the students were drunk but willing participants who exercised "bad judgment." Most importantly: "It would be reasonable for [the male student] to conclude based on their communications and [the accuser’s] actions that, even though she was intoxicated, she could still exercise reasonable judgment.” In text messages exchanged leading up to the encounter, the accuser asked the male student, “do you have a condom,” and she texted another friend “I’mgoingtohave sex now” [sic] These and other text messages, FIRE wrote, "make clear that the accuser had conscious knowledge of what she was doing."

Nevertheless, Occidental expelled the student. NCHERM's president, feminist Brett Sokolow, recently scolded his many college clients for wrongly charging male students when students engage in mutually intoxicated sex because such action constitutes sex discrimination. Based on the information FIRE has reported, the Occidental case would appear to be a textbook example of that.

Now, FIRE has come into the crosshairs of Huffington Post's Tyler Kingkade, who says that FIRE posted online a "confidential investigator's report" that contained the names of witnesses supporting the accuser, and that a "stranger from Powersite, Missouri" apparently used that information to email a harassing message to one of the witnesses. Kingkade claims: "Since FIRE's publication of the report on June 4, at least four of nine witnesses named in the document have received harassment online. One now plans to transfer to another school."

The investigator's report is part of the case file pertinent to the male student's suit against Occidental. It is unclear how Kingkade obtained the alleged harassing emails. In the male student's case against Occidental, Occidental finally sought to seal portions of the lawsuit, presumably including the report that contained the names of witnesses, but its motion was denied last month. The judge stated: "I don't understand why [it] is so pressing in June when it wasn't so pressing in February." Accordingly, despite Occidental's and Kingkade's claim that the report is confidential, Occidental itself waived any claim to confidentiality by failing to do enough to preserve the document's supposed confidentiality.

Regardless, Kingkade's implication is clear: FIRE's act of posting the report that included names of witnesses leaves witnesses vulnerable. Kingkade concludes by quoting FIRE:
Robert Shibley, FIRE senior vice president, declined to remove the investigator's report from his group's website for the same reason he supported the judge's denial for sealing portions of the lawsuit. "The public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case," Shibley said in an email to HuffPost. 
"I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case," Shibley said. "As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity." 
The public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case," Shibley said in an email to HuffPost. 
"I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case," Shibley said. "As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity."
It is well to note that Kingkade's "reporting" has been heavily criticized in some quarters for its hostility to due process when it comes to college men accused of sexual assault. Prof. KC Johnson previously wrote that Kingkade's coverage of the Occidental case was "almost comically biased." According to Prof. Johnson: "In Kingkade’s telling, all that’s at stake in these lawsuits are admitted rapists who are claiming that while they committed a sexual assault, the college violated some sort of technicality and they should get away with it." FIRE previously has criticized Kingkade for presuming guilt in a sexual assault case. We wonder if Mr. Kingkade has been stung by FIRE's criticisms and, instead of answering them directly, uses these alleged emails to attack FIRE for doing something that even the court refused to hold was improper.

Mr. Shibley's mastery of the First Amendment is beyond dispute. The cost of freedom is sometimes high, and FIRE's support of the First Amendment does not make it an accessory to harassment. The alleged emails certainly might be criminal in nature if they intimidate witnesses or interfere with the fair administration of justice. We hope Occidental pursues action if it is legally warranted, but FIRE is no more responsible for the acts of the persons who sent the emails than it is for the criminality of any other person.

Beyond that, there appears to be a double-standard in the reporting. If posting the name of a rape accuser or witness is akin to shouting "fire" in a crowded theater that is not deserving of First Amendment protection (I am certainly not saying it is), posting the name of a man or boy accused of rape is an even louder shout, but folks like Mr. Kingkade do not seem at all concerned about them. For rape claims, the accusation becomes its own conviction in the court of public opinion because it is often nearly impossible to undo even the most far-fetched rape claim (that's because of the he said/she said nature of the claim). Legion are the cases where presumptively innocent men and boys -- who sometimes turn out to have been wrongly accused -- have suffered unspeakable atrocities due to the vile stigma of the claim. We have reported on many in this blog. But I am not aware of a single instance where anti-rape advocates or progressive reporters, and that includes Mr. Kingkade, blamed a newspaper or a blog for publishing the name of the accused in connection with any such attack.

If it is ridiculous to suggest a newspaper could be culpable in those cases, it is all the more absurd and unjust to suggest FIRE is responsible for the alleged emails here.