Like a Rolling Stone; [UVA Rape Fact Checking] A Complete Unknown

Like a Rolling Stone; [UVA Rape Fact Checking] A Complete Unknown

     Aside from being understandably appalled by the specifics of the alleged gang rape that supposedly occurred inside a well-known fraternity house at my (Law) alma mater, the University of Virginia, as detailed by freelance author Sabrina Erdely, my first impression was to think, "Hmmmm. This sounds an awful lot like the similarly themed college campus-based novel I am Charlotte Simmons. The description of the alleged victim's background; her preparations for her first big fraternity date; her mixed emotions of apprehension and excitement; the bedroom setting; her reluctance to pursue charges; apathetic responses from her supposed friends; and even her post-rape encounters with her alleged perpetrator - all closely mirror the narrative I read 15 or so years ago in Tom Wolfe's national bestseller, which, perhaps not uncoincidently, was supposedly set against the backdrop of one of UVA's principal ACC rivals.  I actually voiced my suspicions about this in private to someone with whom I have UVA in common, but immediately qualified it by saying, "Of course, I can't say that publicly.  Not in this climate.  Not in this environment."  And so, I didn't.  Imagine that? Here I am a well-known criminal defense attorney who makes much of his living in the courtroom not only defending people accused of rape, but pointing out discrepancies in victim's testimony and "punching holes in their stories," yet I didn't want to make any out-of-court statements about this for fear I be labeled something I am not or that I might raise the scorn of the "P.C. Police."

      Luckily, others were more bold.  It wasn't long before articles appeared questioning the implausibility of some of the underlying scenarios. (Such as "Jackie's" friends incongruously convincing her not to seek medical attention. Huh? Or her supposedly close male friends urging her not to report the rape because it might affect their chance at rushing fraternities.  Whaaat?  Or how it was that in a pitch-black room, she could identify her attackers?  Good point.  Or even the comic-book nature of the nicknames the Frat Brothers supposedly called each other.  Hmmm.)

       So, what happened here?  The reality is that rapes do happen and campus sexual assaults are real.  It's entirely possible "Jackie" was sexually assaulted, and no one has yet confirmed the rape didn't happen.  Still, this particular story has all the ear-marks of having been 100% agenda-driven.  To me, that's where most of the problem lies.  Erdely, herself, admitted she set out to write an article about the growing prevalence of sexual assault on college campuses but the first group of schools she looked at [apparently] didn't support the theme she was looking for.  In other words, she already "wrote" her story before she found it.  To me, that's as journalistically irresponsible and disingenuous as Erdely's subsequent failure to fact check or attempt any corroboration.  Unfortunately, it is the same myopic perspective that infects so many prosecutors these days and is the reason I find the trend towards Special Victims Units so disturbing, especially as a former prosecutor.

      Like Erdely, the denizens of these units, "the true believers" of the prosecutors' offices already have their minds made up.  They are the thought and mind police.  They are the ones controlling the dialogue.  They are the ones managing the debate.  If a purported victim says it's so, it's so.  No corroboration.  No skepticism.  No scrutiny.  To them, rape and sex crimes complainants don't have agendas.  They don't have ulterior motives.  They are to be believed no matter what, and if they come into court and say it is so, it is so, no matter whose reputation is tarnished, be it personal or institutional like UVA.

      Prosecutors, and Victim's Advocates, like these are both the creation, and essence, of political correctness — a system of perception totally antithetical to notions of justice and fairness, and everything else our system of justice is based on.  And trust me.  They do exist, especially in Special Victim's Units like Sexual Assault/Rape Units, Child Abuse Units, and/or Domestic Violence Units.  I know this because I deal, and clash, with them more and more these days.  I try to remind them (as a former prosecutor myself) their job is also "to do justice."  Sadly, many no longer see things that way and often look at me as though they have no idea what I am talking about.  Invariably they instead say "that's why we have juries...it's up to them to decide," as though this absolves them of any responsibility for reckless disregard of facts and, sometimes, evidence (or lack thereof).

     Emblematic of this is one recent case I had involving allegations of kidnapping, domestic violence and physical abuse, including a claim that my client punched a pregnant woman in the stomach, supposedly to abort their baby, which resulted in her treatment at a local hospital.  The DV Unit ADA was unmoved by the chain of emails I provided her from the alleged victim in which she complained about being plagued by intense stomach pains and a chronic bladder infection for a full week leading up to her emergency room treatment.  The client was indicted and months went by without me receiving copies of her ER records from the ADA — normally routine discovery in any assault case.  I finally had to subpoena them myself, only to find there was no record of her complaining about an assault, or argument, or having been punched in the stomach, or even knowing she was pregnant (that was discovered in the ER after the fact by the treating physicians).  Instead, her medical records made clear she sought treatment for a painful UTI which had been bothering her for a full week.  The prosecutor claimed she didn't provide these patently exculpatory records because she "didn't know they existed." Didn't know they existed?  What kind of prosecutor doesn't immediately subpoena medical records on facts like those? A "True Believer," that's who; someone who wants to "win at all costs," even where the evidence clearly does not back up the alleged victim.  From my perspective, this is the same thing that appears to have happened with Erdely's story about UVA.

     To be sure, some of this agenda-driven zealotry is a function of the elected DAs themselves who are so beholden to special interest voting groups (think Mike Nyfong and Duke Lacrosse) they strip their line assistants of the type of prosecutorial discretion I and my former colleagues once enjoyed as prosecutors years ago - before the age of political correctness.  But don't be fooled.  Most of this is fueled by the same single-minded zealousness that I think is behind Erdely's irresponsible journalism and informs unrepentant apologists like Attorney Zerlina Maxwell who, as reported by others, purportedly told the Washington Post, "We should believe, as a matter of default, what an accuser says.  Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist."

      Folks, this is what I'm talking about; and that's what I'm fighting against in court.  They're out there.  Not just as sources for provocative quotes in news articles, but in real life as members of DA's Offices, police departments and even petit juries.  All of which makes me wonder if our iconic Dame Justice's choice to wear a blindfold is less emblematic these days of "blind justice" and more symptomatic of us all being blindsided by political correctness run amok, just like Rolling Stone was.

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases.  He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston.  A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record.  Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country.  He is an .