Bazelon’s Apology

What to do when an otherwise credible legal journalist lets her emotions and gender politics blind her to the facts? Emily Bazelon’s answer is to acknowledge her mistake.

Last February, I wrote a long article for this magazine about the relationship between Ellie Clougherty, a recent Stanford graduate, and Joe Lonsdale, a Silicon Valley entrepreneur and alumnus of the school.

Lonsdale was Clougherty’s mentor. They had a sexual relationship. Guess what happened next?

After the relationship ended, Clougherty accused Lonsdale of sexual assault.

Stanford came down on Lonsdale. Bazelon followed suit in the New York Times, because she could.

On Tuesday, the university reversed its finding of sexual misconduct and harassment, lifting the campus ban it had imposed on Lonsdale. Lonsdale agreed not to challenge the separate determination that he broke the rule against consensual relationships between mentors and students. That’s hardly in the same category as sexual misconduct and harassment.

Turns out that while the “no dating” rule between mentors and mentees was violated, it finally dawned on everybody that consenting adults having sex didn’t make it sexual assault after the break up. But it gets worse.

Stanford cited “new evidence” in clearing Lonsdale. When I asked what this new evidence was, a spokeswoman pointed me to my own article.

Bazelon had emails between the two proving that the “survivor,” Clougherty, was totally into the sexual relationship. How did Bazelon miss this?

By way of explanation, Clougherty claimed in her suit that she “wrote him numerous emails and love letters to let him know how much she cared about him in the hope that it would end the abuse.”

Ah, yes. There’s an excuse for everything, so no woman can be slut shamed into responsibility for her actions.  Now that she sees the light, Bazelon offers two insights.

Last December, when Rolling Stone’s account of a brutal gang rape at the University of Virginia began to unravel, some commentators argued that we should nevertheless take claims of sexual assault at face value, on the grounds that statistically, they are very likely true. “I choose to believe Jackie,” Jessica Valenti wrote in The Guardian. “I lose nothing by doing so, even if I’m later proven wrong.” In The Washington Post, Zerlina Maxwell argued: “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.”

Most folks who read these philippics recognized them as utter intellectual nonsense. Not Bazelon. But she now knows better?

As Margaret Talbot pointed out in The New Yorker at the time: “That’s a position that makes moral and emotional sense for advocates and friends of the victim, whose primary role is to comfort and support. But it’s not a position that makes sense for journalists, whose job is to find out what actually happened.”

That this required “pointing out” to a legal journalist is, well, disappointing. But it gets worse. Again.

It’s true that women don’t make a lot of false rape accusations to the police. That’s rare. But rare is not the same as never. Then there are the cases that fall into a gray area, because of uncertainty over the shifting definition of consent, especially on college campuses, or over whether the person who felt violated made that clear to the other person at the time.

Wait. Did Bazelon just write “it’s true” without citation?  It’s true because Bazelon still clings to the feminist mystique of blindly believing the dogma?  Has she learned anything from her flagrant mistake?

That brings me to my second point: As long as universities are responsible for investigating and adjudicating rape accusations — and they are responsible, alongside the police and the courts, according to the federal Department of Education — they have to get better at it. Many are trying to improve, and this is not an easy role for any school. They don’t have the in-house expertise the criminal justice system has, or even the best incentives, since they have their own status to think about. At this point, a school can easily come in for high-profile criticism for appearing either to let victims down or to rush to judgment against the accused. But unless the federal government has a change of heart, universities have to learn from their mistakes.

That universities lack the capacity to serve as subconstitutional legal systems isn’t exactly big news. It’s what FIRE has been arguing all along. Did Bazelon not know this?

But Bazelon does yet another blind leap into the abyss.

As long as universities are responsible for investigating and adjudicating rape accusations — and they are responsible, alongside the police and the courts, according to the federal Department of Education — they have to get better at it.

The DoE Office of Civil Rights says so. Or to be more precise, Catherine Lhamon says so. No court says so. Congress doesn’t say so. Just Lhamon.  And yet, that’s good enough for Bazelon?  Worse yet, that’s good enough in the course of a mea culpa about her blindly accepting allegations without applying an iota of critical thought?

To her credit, Emily Bazelon chose to stand atop her soapbox and concede that she took a simplistic hatchet to Lonsdale’s neck and swung down hard.  It won’t undo the harm, but it’s about as good as she could do after the fact.  But while expressing the lessons learned, it becomes facially apparent that she hasn’t learned enough to be skeptical of the feelz that infect her vision, or think critically about the religion that influences her thoughts.

To the extent one thinks it’s mean-spirited to be critical in a blog, consider the impact of getting a story way wrong on a soapbox the size of the New York Times. And Bazelon makes clear that while she’s learned some lessons, she still has plenty to go before she can be trusted not to do another hatchet job.

11 thoughts on “Bazelon’s Apology

  1. Mort

    Her newest article caused almost as much pain as the one she’s trying to correct.

    She still accepts that most accusations are true (they aren’t) and that schools have an obligation to act as judicial bodies (they don’t). It almost seems like she wrote the article to make certain she avoided being named in a lawsuit.

    I award her no points, but couldn’t care less what mercy God may or may not have upon her soul.

    1. SHG Post author

      You’re so cynical. I accept that it was a sincere mea cupla. I also accept that while she may have let go of a couple gaps where critical thought might help, she’s still a few steps away from enlightenment. On the bright side, she no longer adopts the batshit crazy Zelina Maxwell position. It’s better than nothing.

      1. ShelbyC

        It turns out that Zerlina Maxwell is presumptively a rapist herself. Several brave Survivors came out and shared their experiences in the comments section of that piece. Now a cynical person might suggest that those commentators were making false claims in order to score rhetorical points. But that is extremely unlikely. False accusations are extremely rare and the odds of there being several of them in one comments section is virtually nil. Also, it makes sense that the comment section of an article advocating that survivors be believed by default is the one place that the Survivors of Zerlina’s violent behavior might feel comfortable coming forward. Believe the Survivors!

        1. SHG Post author

          Taking Zerlina Maxwell seriously on any level is a microaggression. If her voice was more important, it would be elevated to macroaggression. Fortunately, it’s not.

      2. Mort

        On the bright side, she no longer adopts the batshit crazy Zelina Maxwell position.

        Your optimism is heartwarming.

        And likely misplaced.

        I suspect she’ll be right there on the next “BURN THE RAPIST” bandwagon.

  2. Griff

    This is a pretty strange framing… Her old story was very balanced, told the story objectively and had lots of quotes from both parties. I actually thought it made Lonsdale look, on balance, like a bad boyfriend (hardly a cardinal sin) but certainly not a rapist, while Clougherty looked borderline crazy. Apparently the lawyer who did the investigation for Stanford thought so too since she ultimately reversed the assault finding based on Bazelon’s story. I didn’t view this as an apology. Just an update. I never saw any indication that Bazelon has ever agreed with the “always believe the accuser” line.

    1. SHG Post author

      You are certainly entitled to read the old story in whatever way it struck you. But to draw the inference, “apparently the lawyer who did the investigation thought so too,” is a few steps too far, as clearly demonstrated by the “new evidence” quote. What the investigating lawyer saw, and Bazelon missed because of her myopia, is key.

      I came to understand the story as more multifaceted and complex than I had initially thought. The narrative shifted in my head: Not from black to white, exactly, but to some ambiguous in-between.

      This is a concession that she was wrong. I fail to see any other way to read it.

  3. mb

    You’re too charitable. As I said last time we discussed Bazelon, she believes that her private thoughts of not liking any given man are a violent crime that he is perpetrating against her. That she can now understand that exculpatory evidence can still exist, at least in theory, (a point she only learned after being beat about the face with it by all the grown ups in the room) does not elevate her in the slightest. Everything she writes is trash, and the world would be better off if she would find a different job.

  4. Franklin Michaels, Jr.

    Funny, the last time I heard the name Bazelon, ambiguities had a way of being resolved in favored of the accused. Strange things happen, I suppose, when accused and underdog are no longer deemed synonymous.

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