Shots in the Dark

I’m gratified that Sabrina Rubin Erdely’s failure to contact the two alleged rapists whose names were allegedly known to their alleged victim has attracted an enormous amount of media attention.

Sabrina Rubin Erdley and her supporters are arguing that it’s a mistake to get hung up on that one issue. I agree. Doing so risks obscuring all the other flaws in the Rolling Stone article.

I want to address some of those today. But first, I want to say a few words about why it’s important to contact the accused for comment.

1) There’s been a lot of discussion about this issue in the past few days—and, to my surprise, debate. The New York Times managed to dig up two journalism school professors who announced that contacting the accused isn’t particularly important “I don’t think there’s nearly as much at stake as people think,” [USC journalism assistant prof Marc Cooper] said.

This, along with the existence of Anna Merlan, strengthens my pre-existing biases against journalism school.

Other skeptics have said, “What’s the point? All they’re going to do is hang up, or say ‘No comment,’ or some other form of stonewalling.”

The point is this: The first and most fundamental reason to contact the accused is to confirm that they exist.

Sabrina Rubin Erdley has said that she did not call the men out of a promise she made to Jackie. This is a promise that no journalist should have made; it is deeply compromising because it limits that journalist’s ability to verify the story. If Sabrina Rubin Erdley did not call the accused because she does not know their names because Jackie is, two years after the alleged rape, too traumatized to tell her, Rubin Erdely has no idea if they exist.

And, of course, if one were fabricating or exaggerating an accusation of rape, one very effective way to make a story hard to disprove is to say, “I’m too traumatized to tell you the names of the men I recognized.”

I’m not saying that’s what happened; I am saying that that’s the kind of possibility you can’t ignore, because the consequences of being wrong are so grave.

(Erdely and her editor, Sean Woods, have fudged on this question, even contradicting each other—one reason, I’m sure, why Rolling Stone has now put a gag order on them—saying things like “We knew who they were.” What they conspicuously have not said is “we know their names.” The fact that Erdley only tried to contact the men by calling the fraternity chapter suggests that she did not know their names; she could not call men whose identities she did not know.)

If these men exist, and if Rubin Erdely had reached them, what would they have said? We’ll never know. But to assume that it would be “no comment” or something to that effect is to assume their guilt. And unless you belong to the school of never questioning an accusation of rape—a school which, I’ve learned over the past few days, has a surprising number of adherents, many of whom wield a particularly colorful vocabulary—then you shouldn’t presume guilt. Journalists aren’t judges.

2) Second, I want to address something that people haven’t talked much about: the apparent failure of Rubin Erdley to corroborate Jackie’s story with the three friends—”two boys and a girl”—who allegedly saw her within minutes after leaving the fraternity house.

This, to me, is as important as Rubin Erdely’s failure to contact the alleged rapists, for two reasons—because they could validate Jackie’s story, and because Rubin Erdely uses the three as a microcosm of “rape culture.” They are young people who discourage the reporting of a hideous crime rape because it means they won’t get invited to fraternity parties….and thus the sinister power of fraternities is further demonstrated.

Rubin Erdely says that one of the men, “Randall,” would not talk to her, “citing his loyalty to his own frat.”

That answer has bugged me ever since I read it; unless his frat was Phi Psi and the friend is a real shit, it doesn’t make much sense. But we can reasonably assume his frat wasn’t Phi Psi; Randall was apparently a freshman at the time (he’s worried about not getting invited to frat parties) and it’s hard to imagine he would have subsequently pledged a frat where his best friend was gang-raped. (If it was Phi Psi, Rubin Erdely should have said so.)

So Rubin Erdley’s implication—unstated, but deliberate—is that fraternity brothers have such n insidious solidarity that one fraternity member will not say a word against another fraternity, even one where his best friend was gang raped—an omertà of rape cover-up.

For the record, it’s possible. But man, that Randall sounds like a really bad guy.

We simply do not know if Rubin Erdely spoke to the two other friends, “Cindy” and “Andy”; she doesn’t tell us.

It’s possible that Rubin Erdely did speak to them and made some sort of pact like the one she made with Jackie; Talk to me, but I won’t say that you talked to me—not even a “Cindy and Andy refused to comment on the record.” That would be a little bit of deception on Rubin Erdley’s part, but journalists have done worse things.

It’s also possible that she didn’t talk to them, or that she talked to them and they gave her answers that she did not like and consequently did not use.

We simply do not know.

This issue is personal for me. About fifteen years ago, I wrote a long story for Mother Jones magazine about a Republican political consultant, married three times, who was alleged by his first two wives to have beaten them. I got the women on the record; I got friends of theirs on the record; I got relatives of theirs on the record. All confirmed the allegations.

Which is a big reason why people believed the story, and why I won the $4 million libel suit that the consultant filed against me and Mother Jones.

So I know that you can do this reporting—that you have to. If you can’t get anyone to go on the record confirming a very serious accusation against specific individuals, you are not ready to publish that allegation, and you may want to be even more skeptical about the allegation itself.

I just keep coming back to this: Three people, Jackie’s “best friends,” who are said to have seen her within minutes of a horrific act of violence. And not one will go on the record to confirm the story.

The only people who do confirm it on the record seem to be members of a university rape counseling group, and about this, I thought Hanna Rosin and Allison Benedikt, writing in Slate, offered a very important quote:

“The first thing as a friend we must say is, ‘I believe you and I am here to listen,’ ” says Brian Head, president of UVA’s all-male sexual assault peer education group One in Four. Head and others believe that questioning a victim is a form of betrayal…

If Jackie’s named supporters subscribe to this philosophy, then their “confirmations” don’t mean much; they believed Jackie before she said a word. And if that’s how you feel, more power to you—but you shouldn’t be in journalism.

(This was a great piece of reporting and writing by Rosin and Benedikt, by the way, and I strongly recommend reading it if you haven’t already.)

The bottom line: The mainstream media shouldn’t focus only on the fact that Rubin Erdely didn’t contact the alleged rapists. The fact that she couldn’t get these friends to talk to her on the record—with one of them proffering an excuse that makes more sense as part of a political agenda by the writer than as honest reporting—is also a very serious problem.

3) Finally, I want to address what Rubin Erdely has called “the overarching point” of the article: let’s call it rape culture at universities and, in particular, UVA.

Before she stopped giving interviews, Rubin Erdely was making the case that focusing on Jackie’s story was—I think this is a fair word to use—a digression. A diversion from the overarching point.

Her defenders—people like Rachel Sklar or Rebecca Traister (“the excellent, deeply reported story in Rolling Stone“) or Kat Stoeffel—are pushing the argument that flaws in the reporting of this story shouldn’t obscure the overarching point.

Sklar has gone so far as to say that anyone who doubts Jackie’s story is teaching a class in “rape denial 101.” (What will she say if Jackie’s story turns out to be false? You can be sure it won’t be an apology.)

So just a few words about this.

Rubin Erdely can not have it both ways. She used the story of Jackie’s rape, led her article with it, because it was her most dramatic evidence of rape culture at UVA. If the allegation turns out to be inaccurate or untrue, Rubin Erdley can not then say that Jackie’s story isn’t important in demonstrating the existence of rape culture at UVA.

But for the sake of argument, let’s set Jackie’s story aside for a minute and talk about the overarching point and whether, however we feel about Jackie’s story, we can trust this article about the power of rape culture.

It’s my opinion that, if you were to read the rest of the story with a critical eye, you would find the same sorts of methodological flaws that have raised doubts about the credibility of Jackie’s story.

Start with the fact that Sabrina Rubin Erdley has admitted that she wanted to write a story about rape culture; she looked into a number of universities before settling on UVA. They appear not to have fit her thesis about the prevalence of rape culture—or perhaps they just lacked a sexy lede.

As the Washington Post’s Paul Farhi reported,

…for six weeks starting in June, Erdely interviewed students from across the country. She talked to people at Harvard, Yale, Princeton and her alma mater, the University of Pennsylvania. None of those schools felt quite right. But one did: the University of Virginia…

What Rubin Erdley obviously didn’t find at those other schools was a bombshell accusation like the kind that Jackie provided. And Jackie, Rubin Erdely told Farhi, “was absolutely bursting to tell this story.”

(Which is, by the way, a rather different picture of Jackie than that of a woman too traumatized to share the names of her attackers.)

This is a horrible way to report a story. Can you imagine how pleased Rubin Erdley must have been when, after weeks of striking out, she found a university—and a woman—that fit her thesis? How much she had already invested in believing Jackie?

So Rubin Erdley led with Jackie and then threw in everything else but the kitchen sink. Two other alleged gang rapes about which no details are provided. A 30-year-old rape case. (Sadly and unquestionably true.) A traditional song with quite a few misogynistic verses—which seem to be largely unknown and unsung. The rape and murder of a UVA student by an employee at the university hospital. The oft-cited but never sourced “one in five women has been raped” statistic. (This is the source—a single, deeply flawed study.) This one-in-five statistic is now a gospel of the rape culture movement; federal policy is now being based on it. Few realize or care that it rests on such a shaky foundation.

All this sounds pretty bad, and I have no doubt that some of it is bad. But much of it doesn’t withstand scrutiny, and the accumulation of weak evidence doesn’t amount to a strong case.

Look, for example, at the “stonewalling,” Rubin Erdely’s term for the university’s reaction to her inquiries. She says that the university cancelled interviews, wouldn’t let her talk to relevant officials, and would not release statistics. They were trying to cover up a rape culture.

But Rubin Erdley eventually does get statistics; they show that 38 students came to the relevant dean “about a sexual assault,” up from 20 three years ago. There are 21,000 students at the University of Virginia. One sexual assault on campus is too many, but 38, if indeed they were sexual assaults, is not exactly evidence of rape culture.

So maybe university officials were stonewalling because they’ve made mistakes in the past and it’s a reflexive behavior at this point. Or maybe they were were sensitive about protecting confidential information, some of which—and you won’t learn this from Rubin Erdley—they are bound by federal law to keep private.

Maybe they sensed that Rubin Erdley had come into this story with predetermined conclusions. That wouldn’t have been a crazy thought.

I do know, having written a book about a university president, that securing an interview with UVA’s president, as Rubin Erdley did, is kind of a big deal—not exactly evidence of stonewalling. Larry Summers, the subject of my book, would never give me an interview; nor would Brown’s Ruth Simmons, who is something of a liberal hero. And I wasn’t writing about anything nearly as sensitive as Rubin Erdley was.

I want to close with a quick word about motivation—my motivation. I’ve addressed Rubin Erdley’s, so it seems only fair to disclose my own.

In the past few days, I’ve been called a lot of names by people who say I’m a rape denier or pro-rape or even, gasp, conservative. I wouldn’t call myself any of these things.

I wrote my original post because I was amazed by the instantaneous and violent reaction to a story that had fundamental flaws in its execution—flaws which, in all honesty, weren’t that hard to see for anyone who took the time to look. The publication of Jackie’s story has unquestionably caused a lot of people a lot of pain—and if it’s not true, that’s a big deal.

If you believe that, as I did and do, how could you not write about it?

So I did. And not because I’m a fraternity brother or sexist or pro-rape or right-wing or any of that nonsense. I just believe in good journalism.

I can agree with Rubin Erdley that sexual assault on campus is a terrible thing and how to eliminate it is a really important conversation to have. But that conversation should be based on facts, not on emotion, no matter how genuine it may be.

Right now, whether it’s with Jackie’s story or the prevalence of sexual assault on campus nationwide, we don’t know what many of the facts are, and to start taking steps—like banning fraternities or redefining sexual assault or giving the federal government more power over universities—based on bad information is bound to create a backlash that doesn’t do anyone any good.

That information can come from lots of place, including journalists. But you won’t find it in Rubin Erdley’s piece or in so much else that is published on the subject. And bad information won’t help address or prevent sexual assault.

Rather than answer questions about its UVA rape story, Rolling Stone has begun issuing a blanket statement from its PR person. (I think it was first published by Erik Wemple in this excellent Washington Post column, “Rolling Stone Whiffs on Reported Rape.”)

The Rolling Stone statement is this:

The story we published was one woman’s account of a sexual assault at a UVA fraternity in October 2012* – and the subsequent ordeal she experienced at the hands of University administrators in her attempts to work her way through the trauma of that evening. The indifference with which her complaint was met was, we discovered, sadly consistent with the experience of many other UVA women who have tried to report such assaults. Through our extensive reporting and fact–checking, we found Jackie to be entirely credible and courageous and we are proud to have given her disturbing story the attention it deserves.

(Rolling Stone happened to get the date wrong in this version, which I guess wasn’t fact-checked. The alleged rape happened in September 2012, not October.)

This is a crucial statement in what it says—and what it does not say.

It does not say, “We stand by our story 100 percent.” It does not say, “Jackie’s story is true.”

It says, “We found Jackie to be entirely credible and courageous, and we are proud to have given her disturbing story the attention it deserves.”

This is sleight of hand. Rolling Stone is shifting the discussion away from errors it might have made in its reporting, edition, fact-checking and editorial judgment—away, in other words, from its own responsibility—onto Jackie.

This is “her” story. It is “one woman’s account”a characterization which absolves the magazine for its failure to corroborate that account. Rolling Stone found her to be “entirely credible”—a word which is subtly different than, say, “truthful.”

In other words: This is all on Jackie. Not us, for failing to corroborate her story.

But I think the language that Rolling Stone uses, which must have been very carefully chosen and lawyered, is significant. Jackie’s alleged gang rape is not a “tragic event” or a “horrific crime.” It is a “disturbing story.”

And because it is a disturbing story, it doesn’t really matter whether it’s true or not—it deserves attention.

That, anyway, is the implication.

But there’s also a tautology here. Rolling Stone cites the “subsequent ordeal she experienced at the hands of University administrators in her attempts to work her way through the trauma of the evening.”

Note that Rolling Stone does not say “the trauma of the gang rape,” but “the trauma of the evening”—as if it’s really not so sure anymore what happened that night, and so uses less specific language. “Work her way through”—what exactly does that mean? It sounds like a throwaway phrase; I guarantee you it is not.

So here’s a question: If Rolling Stone, after all the effort—a reporter, editors, fact-checkers, lawyers—it put into publishing this story, can not confirm its veracity, is it so surprising that the University of Virginia also seems to have had problems?

Maybe there are reasons for that other than ineptitude, hostility, sexism or a cover-your-ass mentality on the part of U.Va. administrators.

Here is the problem that Rolling Stone has: The magazine clearly has lost confidence that it knows what happened that night—despite the fact that it published a chillingly specific account of a gang rape. And it can not re-report the story now. What’s done is done.

Also, it wants to put the onus of responsibility on Jackie, without looking like it is discrediting her. The magazine is carefully distancing itself from its primary source, but doing so in a way that it hopes no one will notice.

Nor will Rolling Stone simply admit that it screwed up.

And so it is using carefully crafted language to frame Jackie’s story as significant whether it’s true or not; the really important thing is how the University responded to it.

Which is a morally reprehensible argument.

I’ve gotta tell you—I hate this. It’s so unfortunate, so messy, and there’s no reason for it. You could have written this article in a less sensational, more responsible way simply by sticking to things that you could confirm.

I have sympathy for Jackie, whose life must be hellish right now. (Unless she made the whole thing up, but—to use a phrase for which I’ve been criticized a lot recently—that doesn’t feel right to me.)

Mostly, I feel deep disappointment in Rolling Stone. They dodged responsibility with Stephen Glass, and they’re doing the exact same thing now. They can not admit that they erred, and so they are hiding behind a PR person. Where, for example, is the editor of Rolling Stone, who bears the ultimate responsibility for publishing this piece before it was ready to be published?

And, oh, by the way, here’s a fun fact: When I was a college senior, I won Rolling Stone’s College Journalism Award—I don’t think it exists anymore—for an article I wrote about AIDS, and actually later wrote an investigative piece for the magazine. They fact-checked the hell out of it. But that was a long time ago.

Well, first, welcome. This is a small blog that I write as a sideline to my day job, and has nothing to do with aforementioned job. It’s really just me addressing issues that strike me as important and under- or poorly reported.

So—thank you for visiting, and I hope you come back.

Just a technical note: Because I’ve had a lot of problems with spam comments, I’ve set the blog so that comments that contain hyperlinks have to be “approved” by me. So don’t worry if you leave such a comment and it doesn’t immediately appear—it will.

Except for the person who left an email and phone number for a Charlottesville police officer. I don’t think this blog is the appropriate place to post that kind of information, and I have no idea if that was indeed the right person for “concerned UVA parents” to contact.

So that particular comment will not appear.

I emailed her yesterday afternoon to see if she would answer some polite questions about her story.

No response yet.

I have emailed her again….

Update, Tuesday at 10:18: Nothing yet from SRE, and I don’t expect to hear anything from her; nor do I expect to hear anything from her editor at Rolling Stone, Sean Woods, whom I also emailed. It seems the two have gone underground and are now referring all inquiries to Rolling Stone’s PR person. More on what RSPR has said (it’s interesting) tomorrow.

In today’s Boston Globe, lawyer Wendy Murphy, an advocate for victims and alleged victims of sexual assault, praises Harvard for loosening the burden of proof in such cases.

Murphy begins with an argument that I find startling at best and at worst dangerous. Campus sexual assault is not not just a matter for the criminal justice system, she says. Because it is (usually) an act of violence against women, and the federal law Title IX is designed to “promote women’s equality” in education, campus sexual assault is actually a civil rights violation, “the enforcement of which has nothing to do with criminal justice.”

Because Harvard is not the government, there is no right to “due process” for offenders. Harvard should be fair, of course, but “fair” in civil rights proceedings on campus is not the same as “due process” in real-world criminal justice proceedings.

Let me emphasize that: Harvard should be “fair, of course,” Murphy writes, but what “fair” means is, essentially, for Harvard to determine. Law and precedent are irrelevant.

I am not a lawyer, but my sense was that Title IX was intended to eliminate systemic discrimination against women on college campuses; it was passed in 1972, a time when many colleges and universities were admitting women for the first time, and I have no doubt it was much-needed. When I went to college in the mid-1980s, it was primarily discussed in the context of ensuring that women’s athletic programs received equal treatment.

This website devoted to the law defines it thusly: Title IX is a law passed in 1972 that requires gender equity for boys and girls in every educational program that receives federal funding.

To suggest that an act of sexual assault is a violation of Title IX is to imply that all sexual assault is systemic, part of a “rape culture”—perhaps not what the law originally had in mind, but conceivably covered under the concept of systemic discrimination. This is why the establishment of “rape culture” has become so important to one side of this debate—because it allows people like Murphy to say that rape is a violation of Title IX and therefore a federal civil rights violation. Without a “rape culture,” it is hard to see how any single act of sexual assault could possibly be called a Title IX violation.

Again, I’m not a lawyer-that’s just a layman’s interpretation. I’d welcome other input on that.

What Murphy’s really pushing here, of course, is the idea that Harvard, or any university, shouldn’t actually have to prove beyond a reasonable doubt that a sexual assault occurred before punishing the alleged offender. It can create its own, looser standards—which, in fact, under pressure from the federal government, Harvard has done.

The first such standard is that Harvard can act against an alleged offender if there is a “preponderance of evidence” that he is guilty.

The second of Harvard’s new standards is to expand the definition of sexual assault and harassment to include any “unwelcome conduct of a sexual nature.”

These standards give the university enormous and very vaguely defined power. It’s ironic: Advocates of the reform of sexual assault hearings on campus have long charged that universities handle sexual assault allegations in an arbitrary and one-sided manner. Their solution is to make the process even more arbitrary and one-sided-just in the opposite direction. And backed by the intrusive power of the federal government.

It’s sort of brilliant, in a way.

This is all great for lawyers like Murphy, who has carved a profitable niche for herself in this space. (Which is not say that she isn’t sincere about it—I have no reason to suspect that she isn’t—but to point out that she does have a financial and professional self-interest in the adoption of these standards.)

But I can’t imagine that any university really wants this power. It will invariably prompt a backlash of litigation from alleged offenders who feel that they didn’t get a fair hearing from their university. Again, a bonanza for the lawyers. I’m not so sure, though, that it will ultimately do much for the alleged victims, as cases in which people claim unfair punishment start to get more publicity and the issue becomes even more contentious than it is now.

How universities came to be adjudicators in sexual assault cases is a subject that fascinates me and I plan to learn more about. As advocates for sexual assault have until recently argued, it’s a role that they don’t play well, and, in my opinion, shouldn’t play at all. Wendy Murphy is now arguing that universities should be the option of first resort for women who have been sexually assaulted, and that the traditional system of criminal law isn’t an option at all and that traditional legal standards are irrelevant in the university context. That argument should make lots of people—men, women, alleged rapists, alleged victims—very nervous.

Update: I wrongly characterized part of Murphy’s argument above and have made a couple of corrections to address that. Apologies to Ms. Murphy for the error.

On Jezebel, a writer named Anna Merlan takes me to task for questioning elements of Sabrina Rubin Erdely’s Rolling Stone story on an alleged gang rape at the University of Virginia.

Referring to me as “a guy by the name of Richard Bradley” who is “now mostly retired” (I am?), Merlan says that my post below is a “giant ball of shit.” (I would love to use that as a book blurb someday.) She doesn’t really say why she thinks I’m so fecally wrong, except that I’m male and, apparently, old, and insufficiently appreciative of Sabrina Rubin Erdely’s “months of work.”

I know it’s Jezebel and all, and no one there is particularly expected to be responsible or even truthful, but in the act of dismissing what I wrote, Merlan profoundly mischaracterizes it.

For example: She says in a comment that….

…Bradley writes ‘we never learn her identity’ as though it’s unusual. As though every other reported piece about rape includes the alleged victim’s name and social security number and weight and height and current address and medication allergies.

I wrote no such thing, and it’s either willful ignorance, ideological blindness or just plain maliciousness on Merlan’s part to suggest otherwise.

Here’s what I wrote:

Jackie is never identified. I don’t love that—it makes me uncomfortable to base an entire story on an unnamed source, and I can’t think of any other situation other than rape where a publication would allow that—but certainly one can see the rationale.

Doesn’t sound quite as bad as Anna Merlan makes it out to be, does it?

I know full well that media outlets don’t publish the names of rape victims without their permission. But if you’re going to base a highly accusatory 9,000-word article on an anonymous source, you should push as hard as you can to get second-hand, named corroboration from, say, the three friends who supposedly saw “Jackie” immediately after the rape.

Merlan also neglects to mention that I’m skeptical because Jackie says she knows the names of two of her alleged rapists, but those ​names are not printed (why wouldn’t they be?) and so far as one can tell from the article, Sabrina Rubin Erdely never contacted the men; I wonder if she even knows their names. (If she does, how on earth could she not contact them for comment?) And if you read the Washington Post story Merlan refers to, or listen to the Slate podcast SRE did, Rubin Erdely repeatedly dodges the question of whether she knows the identities of the two men allegedlfy involved and if she tried to contact them. I think I count four times in which the Slate interviewer tries to get Rubin Erdely to say whether she contacted the men involved, and each time Rubin Erdely conspicuously avoids answering the question. It’s weird.

Because I could not find an email for Merlan online, I reached out to her via LinkedIn and rather mildly pointed out that I am not retired. She does not seem to have accepted my offer to connect on LinkedIn, but she did subsequently update her Jezebel post thusly:

Correction: A previous version of this post incorrectly said Richard Bradley is retired. In fact, he is the current editor-in-chief of Worth. I regret the error. This is what a professional journalistic correction looks like, in the unlikely event that any editors at Worth or writers at Reason [a writer there also questioned the Rolling Stone story] ever need to issue one.

This is ripe. According to her LinkedIn page, Anna Merlan is a 2010 graduate of the Columbia School of Journalism who has also worked at the Dallas Observer, the Village Voice and now Jezebel—a downward trajectory, you might say, but never mind.

This gives her about four years of professional journalism experience—more if you count her pre-Columbia days—as opposed to my 30 years.

I’m not a big one on harrumphing about kids today and all that, and I’m all for young journalists stirring the pot, but still—how kind of Merlan to identify for me what a “professional journalistic correction looks like”—in an addendum that is exactly not what a professional correction looks like. I’m guessing that using a correction to take a shot at the person you’re making a correction about is not what they taught at CSJ. It certainly isn’t what I taught at CSJ, where I was a tutor in the master’s program for two years. (Merlan and I just missed overlapping.)

I expected to get raked over the coals when I wrote the post below, so this isn’t surprising, and I imagine there’ll be more to come. It’s just disappointing when people do it in such a predictable and shallow way. I wish Merland had actually addressed the substance of what I wrote. Especially coming from a writer at Jezebel, that could have been the beginning of an interesting—maybe even important—conversation.

But I guess you don’t get as many hits that way.

Incidentally, I have emailed Sabrina Rubin Erdely to see if she would answer some questions about the piece. I have not yet heard back. (To be fair, I only emailed a few hours ago, and I am sure she is busy.) So we’ll see.