Another Rape Accusation. Another Gang of Five

It was April 19. 1989. And it began a rash of shrieking about the “child predator” plague that was about to destroy civilization as we know it.  A new word was invented, “wilding,” and new laws were enacted, punishments enhanced, and parents kept their children locked up tight so they wouldn’t be raped and sodomized. Or rape and sodomize, according to what fear was highest on their radar.

And it was, as we learned in 2002, a lie.  All of it. Total, unadulterated bullshit.

So let’s do it again.  This time, it was five young black men in Brownsville.  The story broke about how they raped an 18-year-old woman at gunpoint at Osborne Playground. Fires were stoked. Cries were heard to burn them at the stake.  Except this time, the investigation revealed that the evidence showed the “victim” to be incredible, her father to be a disgusting animal and the allegations to be false.

Thompson spoke to the press about his difficult decision to drop a case with such heinous allegations.

In today’s statement, Mr. Thompson said the woman and her father had “provided multiple inconsistent accounts” to police—that there was no gun and they were in fact engaged in sexual conduct.

The truth that has finally seemed to surface is this. The woman and her biological father were having sex on a playground bench when the five teens approached.  Either by invitation or suggestion, some of these boys then engaged in sexual intercourse with the woman.  If you are at a loss for words, allow the DA to help you out.

“That night, this young woman’s father and the five young men engaged in conduct that was reprehensible and wrong, but because of the lack of reliable evidence, criminal charges simply cannot be sustained,” Mr. Thompson said.

Kings County District Attorney Ken Thompson had two choices. Scrape together whatever evidence would support charges, ignore (if not bury) evidence that proved the allegations false, and appease the townsfolk who marched on his office with their pitchforks and torches ablaze.  Or, fulfill his duty to “do justice.”  He chose the latter.

New York City Councilwoman Laurie Cumbo couldn’t bear this outcome.

As I was informed of the decision to dismiss all charges in the alleged gang rape that occurred on January 7, 2016 in Brownsville at the Osborn Playground, somehow I did not feel relieved that all was now right with the world.  Black women are protecting our men. Who is protecting our Black women? The #blacklivesmatter movement is being driven by many fierce Black women– protecting their fathers, sons, husbands, and brothers. No one wants to see five Black boys and a father lost in a broken criminal justice system. But at the same time, we must also ask the question, what do we want to see for this eighteen-year-old Black girl?

This case has reached national and international attention. Decisions from cases such as this often set precedent. What is so dangerous about this precedent is that it involved both an intimate partner and stranger rape investigation simultaneously, and it now sets a new standard for what is permissible in both circumstances; and has unearthed the meaning of consent.

Putting aside the question-begging, as well as the sad fact that a council member doesn’t grasp the concept of precedent, Cumbo’s seizure of the opportunity to be the voice of sexual consent stands in stark contrast with the rule of law.  How so? Because evidence. Because witnesses. Because proof.

For a great many in criminal defense, this presents an irreconcilable conflict.  Sure, they spend their days in the well defending the accused, but they can’t shake off their feelings.  They get Thompson’s decision, but their hearts are with Cumbo.

It’s reminiscent of a debate a while back about “slut shaming.” Some self-righteous prigs decided that they were willing to sacrifice their client, a potentially innocent defendant, because their feelings precluded them from using the tools available to them to defend.  There are even those criminal defense lawyers who may be smart enough not to expose their feelings that they would sell out their client would, in the darkest reaches of their head, refuse to zealously defend if it violated their view of social justice.

But then, this could be chalked up to “mansplaining,” an ad hominem that dismisses reason based upon genitalia, which is somehow acceptable when it confirms one’s bias. So instead, perhaps it’s better to let Brooklyn Defender Debora Silberman tell it:

THE news that five young black men were accused of raping a young woman in a Brooklyn park in January captivated the city for weeks. The defendants were tried — and immediately convicted — in the court of public opinion. But as details emerged, it became clear that they were innocent, and the prosecutor dropped all charges.

However, the dismissal of charges does not undo the damage to the reputations of the so-called Brownsville Five, teenagers ages 14 to 18, including one who is my client. Because they were tried in adult court, their names were made public and were reported widely in the news media, smearing them for the rest of their lives.

Silberman is not a warrior in the battle over gender. She doesn’t cry sad tears over the vicissitudes of consent that would give rise to secret crimes against women.  Silberman is a criminal defense lawyer, and she represented one of the Brownsville Five. She indulges no conflict between her duty to her client and her personal feelings. She did her job, and she shows no fear in saying so.

Since my client’s charges were dismissed, he will not be faced with such a decision. But the state is not obligated to protect the confidentiality of adolescents charged with a crime and it is not possible to retroactively seal my client’s name once it has been published on the Internet.

Naming my client and the other boys during the initial public uproar may have been intended to create the appearance that the police and prosecutors were taking the case seriously. Their innocence should have a greater claim on our conscience.

To Cumbo, and those who share her feelings, these five young black men will never be innocent, can never be innocent.  Not only should they be named, but they must be punished, because no matter what, lack of evidence, lies, there is a “victim,” and no “victim,” real or imagined, for whom retribution must not be exacted.

So who are you?  Are you Silberman, a criminal defense lawyer fulfilling your duty to your client, or are you Cumbo, a warrior for gender justice? If you aren’t the former, then you have no business in the well standing beside a defendant. If you have any lingering doubts, remember the Central Park Five, who never had a chance despite being innocent.