I’ve been reluctant to post about the Hofstra rape case, or rather the Hofstra false rape case, because the scenery has changed with far greater speed than a car passing by on the Long Island Expressway. It’s swiftly gone from cops announcing their guilty 5, raping a girl in a bathroom lured their by someone taking her cellphone, to one of the evil males taping consensual sex on his cellphone.
The false accuser, confronted with news of the video, spills her lies. and suddenly the world turns 180 degrees. The debate now shifts to whether the accuser should be publicly named and prosecuted. The dilemma has been well noted by Emily Bazelon, who has since been called out by Glenn Reynolds for her failure to name the perpetrator of the false rape claim, Danmell Ndonye. And Ann Althouse thinks it’s time for women to grow up and take responsibility for their sexual conduct, Ndonye crying rape to avoid being thought of as a slut.
Big issue punditry aside, there’s an actual decision to be made here, and there’s been no focus on the fact that the local District Attorney, Kathleen Rice, has yet to make that issue. Granted, she Nifong’ed herself at the start, jumping aboard the guilty bandwagon as quickly as she could, and jumped off even more quickly hoping nobody would notice. But Rice, who has set up her political fortunes as an avenging DA, has yet to do the one thing that district attorneys are charged to do. Decide to prosecute.
A Newsday article by Ann Givens purports to lay out the considerations that Kathleen Rice is weighing in her decision of whether to charge Ndonye.
On the one hand, they will want to discourage people from lying to law enforcement, and show that there will be consequences for doing so, experts said. On the other, they don’t want to discourage legitimate rape victims from coming forward, or discourage people who lied at first from telling the truth later on, experts said.
And the flip side of the thought process is even less valid. A false rape accuser does nothing to inhibit a true rape victim from coming forward. There’s nothing similar about the situations, True victims have no fear of a video revealing them to be a liar. True victims have no fear of being exposed as a fraud and criminal.
Lois Schwaeber, director of legal services for the Nassau County Coalition Against Domestic Violence, said cases where people make false reports of rape hurt all legitimate rape victims seeking justice. But she said prosecuting someone who has made a false report will discourage real rape victims from coming forward as well.
“They may feel that if they can’t support the charges they are making with enough proof, they could be charged.”
Nor does the secondary rationale hold water. Ndonye didn’t tell the truth because she had a sudden flash of conscience about the crime she committed and the harm she had done. She cracked because she was confronted with the fact that she was a liar. You want an incentive to tell the truth? Videotape your sexual encounters.
Of course, had the sequence of events been slightly different, and it was revealed that one of the five men in the bathroom had taped the encounter before Ndonye lied, the papers would have had a different lede. Taking photos of bathroom sex is certainly lurid enough to be worth a story.
This all amounts to a flag being run up the pole to see who salutes. Rice is up for re-election, and opposed by a legitimate and well respected contender for the post, Joy Watson. She doesn’t know which direction will get her the most votes, and the least criticism. There’s a huge risk for Rice in charging Ndonye with a crime, as shown by the way Newsday has framed the considerations. Rice doesn’t want domestic violence and rape advocates to jump down her throat for discouraging real victims.
But Rice knows that a crime has been committed. Rice has the evidence to prove her case.
Rape is a heinous crime, and Rice was all too happy to make sure the charges against the “rapists” were broadcast far and wide. When she ended up on the wrong end of the story, though, she never apologized to the five men who she put in jail because of the false allegations. And now she tests the waters to keep her political hands clean for her failure to charge the source of these heinous false allegations.
As interesting as the thoughts of pundits on the subject might be, the real decision sits in Kathleen Rice’s hands. The decision won’t be made because of right and wrong, crime or no crime, the effect on real rape victims. The decision will be made on what will make her constituents want to re-elect her and what she can get away with. If this wasn’t true, the decision would be a no-brainer.
Update: At 5 pm on a Friday, Nassau DA Kathleen Rice announces that she won’t prosecute Ndonye, the false rape accuer. That’s how one buries a story so it’s lost over the weekend and never heard from again. Coincidence?
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I hadn’t followed the case at all, up until now. But I just clicked on one of your links, and saw a photo of the expressions of two utterly innocent men being led off to be arraigned for a crime that never happened.
How horrible.
Seems to me that if a victim — and these guys are victims — gets some sense of redemption and shadenfreude when their perp is properly prosecuted, that’s not a bad thing.
There’s right. There’s wrong. There’s elections. What comes first?
This is a tough one. Stipulate that the real criminal here is the girl. Still, a lot of crimes go un-prosecuted and ought to. I hate to come down on a DA for showing some restraint, which they should do more often.
At least the prosecution didn’t get very far. Could have been a lot worse.
This may be one of those situations where neither decision is really “wrong”: there are legitimate reasons to prosecute and there are legitimate reasons not to.
There are civil remedies, maybe one worth bringing against the school and its “women’s studies” department. Of course, five guys who may have engaged in what amounts to a “gang bang” might not be the most attractive Plaintiffs. Or complaining witnesses in a criminal prosecution, either, which might be a very practical reason not to prosecute.
If it were me? A public admonishment of the girl, stressing that there are real rape victims who are also the victims of her fiasco, an apology to the guys.
And the guys should sue the girl and the school.
That’s pretty fair all around. Maybe.
Civil remedies against the school and its women’s studies department? Of, I guess I should put women’s studies in quotation marks. Care to explain this comment?
She’s not showing restraint, John. She playing politics, which is the same as when she prosecutes drunk driving as depraved indifference murder. You can’t stand on both sides of the fence; either it’s restrained prosecutor all around or it’s avenging angel all around. Pick a philosophy and stick with it.
Okay, devil’s advocate time. Hypothetical: in a situation remarkably similar to this one, the prosecutor has some reason to believe that not only is the perp bugfuck nutso, but might also be bugfuck nutso in just the right way to make her, legally, not responsible for her misbehavior. (I’m not going to claim that that’s the case here, but it might be, for all I know.) One way to handle that, of course, is to charge and let the system work its magic, dismissing the case later on if the prosecutor no longer has a good faith belief that she can convict the bugfuck crazy perp because of the size and flavor of the bugfuck craziness.
But, in the hypo, would it be unreasonable for the prosecutor to hold off a little while and try to see whether or not the legally requisite size and flavor of bugfuck craziness is there?
We’ve played before — I think your answer is that since she hasn’t been so reasonable before, it’s purely political that she’s doing it now. (And I think, in the real life case, you’re entirely right.) But would it be a such a bad thing to, once in a while, do the right thing for the wrong reasons rather than to never do the right thing at all?
God. Only criminal defense lawyers think like this. And the really scary thing is, it makes sense to me.
I need a drink.
Or maybe she’s the last living descendant of Jesus, the Sang Real, the Holy Grail.
DA showed no restraint when she saw a big case that could be politically expedient.
She is the District Attorney-not the District Social Worker.
Yes I know she has discretion–problem here is if she does nothing people can make false allegations w/o fear of punishment.
As a privacy advocate, I usually redact personal info from entries on my blog, but in this case, I, too, reported the co-ed’s name as she’s not a victim and frankly, as a former rape crisis counselor, I was and am ticked off that she did this.
That this co-ed smeared the men’s reps is a civil matter. That she wasted law enforcement’s time and money and had students at Hofstra (and their parents) in fear for others’ safety is something Rice can and should deal with by charging her with filing a false report. But I don’t think Rice is playing politics as much as you seem to think she is, Scott. I’ve dealt with Rice in the past and actually have some respect for her. From my conversation with her about violence against women, I suspect that she’s really taken the issue of whether this might dissuade genuine victims from coming forward to heart. I hope she decides to prosecute in this case, though.
FD: I’m a constituent of Rice’s and the parent of a Hofstra student.
I’ve spoken with Rice as well. She’s very good at appearing sincere and concerned. A cynic might call it an act. I call it a gift. But as you know, one takes away the message one wants to take. If you want her to be sincere and concerned, then that’s what she is.
As for dissuading genuine victims, there’s no rational relationship between true victimes of crime and prosecuting a false accuser, a perpetrator of crime. And it’s not acceptable for her to be so fundamentally inconsistent as to be rash and hard on males accused of rape, but soft and concerned about false accusers who put innocent people in jail.
Regardless of where you fall on the charging issue it is telling that Rice cannot make up her mind.
You and I are in total agreement as to what we want her to do. I’m just a little less cynical than you are as to her motives, but then, I talked to her back in the day when she didn’t seem so concerned about her makeup and hair, and you may be right in terms of what drives her now.
As a former prosecutor and one time victim of a sexual offense I am outraged at this type of rationalization for not prosecuting one who makes a false allegation of sexual assault. The damage done to these young men is long lasting and humiliating. There will always be rumors and whispers by those who will refuse to believe that she really lied. False allegations happen every day-maybe if there were real consequences for this type of crime some others would think twice before making a false allegation.
Makes you wonder how many innocent men are sitting behind bars because they were unable to come up with a DNA sample and no one was around to film the truth.
It is a shame that people elected to the most important law enforcement position in the county are so gutless. So much for one who is “tough on crime”.
Amen.
Pam’s comment on “tough on crime” makes me wonder if that is the political angle to take – I’d start saying that to every reporter in earshot that Rice is “soft on crime” and “giving a criminal a pass” and a “get out of jail free card” – and any other slogans I could think of. Falsely accusing 5 innocent men of a capital offense is a VERY serious crime and the perp should have been in handcuffs as soon as it was determined that she lied. Either you are “tough on crime” or you aren’t. I hate politics.
But there’s neither a political angle here, nor anything productive to gain by trying to push Rice to be anything other than what she is. The problem isn’t making her into anything, but her being Kathleen Rice. I don’t want her to be tough on crime. I want her to be honest in the performance of her duties and consistent in her application of her power and discretion.
I could explain but I don’t think Scott would like the digression cluttering up his blog. If you’re interested you could email me: [email protected]
How about “Tough On Some Crime.”
No crime ought to go un-prosecuted if a victim wants it prosecuted and is willing to do it on his own dime. The social contract goes both ways. We give over to the State the sole right to use force on our behalf only on the condition that they will always do so.
You are just wrong about the arrest process in Nassau County. The District Attorney has zero say in charging defendants. Rice did not arrest these four young men and then announce it to the public. That was left to the Nassau County Police Department. In fact, Rice wasnKt even at the press conference. If you can’t get that basic fact right, you shouldn’t be writing a legal blog. You owe Rica and her office an apology Tand your readers) for stating that she publicly announced this arrest when she didn’t.
Every village needs an idiot. Thanks for coming.