Anatomy of a Rape Debacle: Failure from Start to Finish

By now, you’ve probably heard this story:

A teenage girl who was dropped from her high school’s cheerleading squad after refusing to chant the name of a basketball player who had sexually assaulted her must pay compensation of $45,000 (£27,300) after losing a legal challenge against the decision.

The United States Supreme Court on Monday declined to hear a review of the case brought by the woman, who is known only as HS. Lower courts had ruled that she was speaking for the school, rather than for herself, when serving on a cheerleading squad – meaning that she had no right to stay silent when coaches told her to applaud.

That the victim should have to pay the school’s legal costs because she sued for the right to be an active participant in her school and protect herself at the same time is the kind of thing that leaves a person wondering how matters got so incredibly fucked up. It takes a lot of failures to get this far. Here is a (probably incomplete) list.

Failure of Humanity
First, of course, we have the rape itself.

The cheerleader and three football players were at a party at the home on Pinewood early Saturday, according to an arrest warrant affidavit filed by the Silsbee Police Department.

The girl told police that three males forced her into a room, held her down and sexually assaulted her, the affidavit states.

I won’t be explaining why this is a failure. If you need it explained, go away.

Failure of Justice
This case was heard by a grand jury three times. The first jury declined to prosecute citing a lack of evidence. That lack of evidence, by the way, included a rape kit and witnesses.

When others at the party tried to open the door, two of the males fled through a window of the one-story house, the affidavit states. The third boy remained behind.

One of the boys who fled left behind a pair of shorts, the affidavit states.

One of the males later returned and made threats so he could retrieve his shorts, the affidavit states.

A second grand jury was convened after the prosecutor was accused of failing to prosecute zealously because he thought the outcome was predetermined. found sufficient evidence to indict after insisting upon hearing everything twice–with no changes to the available evidence. At that point, the victim had already had to testify three times.

The victim, unwilling to deal with more of the slow grind(er) of justice, supported a plea deal for the man she would later be asked to cheer. Instead of a charge that exposed him to the possibility of 20 years in prison and a $10,000 fine, he received two years probation, community service, a $2,500 fine, and an anger management class. (The anger management class is something else I won’t explain, but only because I can’t. Maybe there are no sex offender treatment programs in the area?) He also avoided having to register as a sex offender, so potential future victims won’t see him coming.

Charges against the second adult indicted were dropped, possibly because the victim was unwilling to testify there as well. The prosecutor only said that “unless new evidence is found, the case, which has garnered national attention, is over.” The status of charges against the juvenile accused rapist are unknown, although he’s no longer a juvenile.

This is not particularly atypical, for those few rapes that are reported to the police.

Failure of Priorities
The town of Silsbee, TX is not particularly unusual in being “sports-obsessed.” However, that doesn’t make the school or the appeal court correct when one argues and the other accepts the idea that “This act constituted substantial interference with the work of the school because, as a cheerleader, HS was at the basketball game for the purpose of cheering, a position she undertook voluntarily.” Sports may be organized around schools, but that does not make them the work of the school. In this day and age of restricted funding, that really, really ought to be self-apparent. Ditto for cheerleading, and doubly so for the sort of cheerleading that isn’t a competitive sport itself.

Failure of Safety
This is technically a failure of priorities as well. Learning is supposed to be the first priority of schools, and in order for learning to occur, students need to be undistracted by concerns for their security. If there are not policies in place to deal with conflicts like these, in which an aggressor wants to take part in activities in such a way as to be a threat to the recovery of the victim, there need to be. Those policies also need to go out of their way to accommodate the victim, not the aggressor. That goes for bullying, and it certainly goes for rape, even if the charges are bargained down.

Do I hear someone saying that sports aren’t learning? Well, for one thing, that’s not what the school and the appeals court argued. For another, that places the imperative to safety even higher. During academic activities, the need to keep the victim safe has to be somewhat balanced by the educational needs of the aggressor. In extracurricular activities, those educational needs are lessened, or perhaps don’t even exist. Then the school becomes primarily responsible for the safety of those in its care.

Even if the only charge the rapist had ever faced was the misdemeanor assault he pled to, even if the accusations were still in court, he, not she, should have borne the brunt of any conflict between their activities. But that wasn’t the only charge. Silsbee is a small town, and everyone in town knew about the rape. School officials certainly knew. So did every other cheerleader and all the athletes.

That means that when the superintendent placed her rapist’s desire to play sports over the victim’s need to establish some control over the situation, he didn’t just make the victim less safe. He made all those cheerleaders less safe. Cheerleaders are already subject to high levels of sexual harassment. The superintendent reinforced the importance of school tribalism, sports, and athletes–all of them–over the safety of the school’s cheerleaders. He told the cheerleaders, the athletes, and everyone else watching that rah-rahing for the school was so important it was worth siding with a rapist over his victim.

Failure of Counsel
The suit against the school district was filed on First Amendment grounds. Although that wasn’t frivolous, since the ability to shun a rapist is a compelling claim, the suit should have been brought on Title IX grounds instead. Yes, Title IX. Former prosecutor Wendy Murphy explains:

Title IX requires schools to take “prompt and effective” steps to redress sexual harassment, sexual assault and any other form of sex discrimination. It also forbids schools from exacerbating a situation by creating or allowing a hostile environment to develop on campus in the aftermath of a reported sexual assault.

…the ruling would have gone the other way if the case had been filed under Title IX. That the victim’s parents did not sue under Title IX is unfortunate but not surprising given how little has been done to educate anyone about the connection between Title IX and sexual assault.

This story has sparked loads of commentary, but so far I have yet to see a single mention of Title IX even though the law has been around since 1972.

Title IX expressly forbids sex discrimination, which includes sexual harassment, the most severe expression of which is sexual assault. Yet 9 out of 10 people asked say they believe Title IX only requires equality in athletics, as in making sure girls can try out for boys’ teams.

Other federal laws that cover discrimination against other “types” of students haven’t morphed and narrowed like this into sports-equity rules.

Schools aptly emphasize that laws forbidding racial or religious discrimination are primarily aimed at preventing targeted violence and harassment–not equal distribution of soccer balls. Presumably this is because being free from violence is far more important than scoring baskets if the goal is to achieve an equal educational opportunity.

That’s right. Our federal laws require that our schools provide women and girls that safe, equal space that this young woman was denied, but almost no one knows it. I suggest you read all of Ms. Murphy’s article (bonus clueless Larry Summers story).

Failure All Around
So that is how a a teenaged victim of a gang-rape ends up owing legal costs to the school district that failed her so badly. It takes an awful lot of people to screw things up on this scale. It takes rapists, a tepid prosecution, an indecisive grand jury, misplaced school pride, an insufficient attention to the duty of protecting a district’s students, and a lack of knowledge of the rights female students are already supposed to be guaranteed.

In fact, as far as I can tell, the only people who did anything right in this situation are the victim and their parents. Remarkably, they also seem to be the only people who have lost by this. Lovely.

Big News Is Too Big

The first time I stood on the edge of the Grand Canyon, my response was, “Yep. That’s big.” Then I promptly slipped on some ice and wrenched my knee. I spent the rest of that brief visit sitting down, slowly doling out peanuts to the ravens. I remember the ravens in a fair amount of detail and have been fascinated with corvidae ever since. The Grand Canyon is still just big.

It isn’t just an animal versus rock thing, either. The Little Colorado River flows through a vertical chasm nearby that gripped me as well. I was impressed by how deep and straight the water has cut through the rock and the narrowness of the channel. It was small, by comparison, but the details captured my imagination.

The Grand Canyon, on the other hand, is simply immense in a way that dwarfs its details. Maybe if I’d had more time and mobility, I could have gotten to know a small piece of it. Maybe then the pressure to have an opinion about the place–and that pressure does exist–could be met with more than a shrug. For now, it simply remains big.

On the morning September 11, 2001, the news changed between the time I got out of the car at work and the time I got to my desk. I listened to the radio long enough to understand that, once again, this was something that was simply big. I could, perhaps, if I listened longer, focus on one small aspect of the whole until it made sense, but the whole was always going to be too large. The details were never going add up to something I would truly understand.

There was a conference room with cable news reception. I didn’t go in. The pictures weren’t going to help, and watching the anchors and guests try to make sense of something that big was only going to make me hate their superficiality.

People drifted out of the room all morning. I don’t know whether they gave up on making it all make sense, or whether they each found their own little details from which to mine meaning. At lunchtime, there were two people left, two I respected for their thoughtfulness. I gently chased them out of there with the suggestion that that much immersion might not be good for them. I suspect they were still trying to find the piece that would make it all make sense.

We haven’t found it yet, nearly ten years later. Those of us who lived through it almost certainly never will. Historians who look back from a distance probably won’t either. Like us, they’ll focus on one detail or another, just as we’ve done with all of these events that are just too big.

In the meantime, however, we have a new event to deal with. In itself, it isn’t very large. A dying man is dead, at the hand of one of the nations he harmed. His influence will not have died with him. But he, himself, is dead, and his death is part of an event that is simply too big for us to handle.

There is, once again, immense pressure to decide how we feel about bin Laden’s death, despite the overwhelming size of the events he set in motion. How we react, each of us, will depend on the details we took away with us in the aftermath of September 11, 2001. It was a crime, a tragedy, a political lever, a moment of deep political insecurity, a blow to our national pride, and much more. Our personal reactions now are informed by at least one of those, but I doubt that any of us can be informed by all of them at once.

As it was on September 11, it is time to give ourselves and each other a little break. We’re all behaving appropriately to our understanding of that immense event and those that followed. We’re all behaving inappropriately to someone else’s.

We can’t ever understand the whole of what has happened to us, but maybe, just for a day or two, we can understand that much and let each other be with our personal, emotional, insufficient reactions. Even those of us who have nothing more intelligent to say than, “This is big.”

Punching “New Atheists”

Last week, David Roberts wrote on Grist about why he had avoided commenting on the climate change report from Matt Nisbet. Those who have followed the accommodationism arguments will recognize that name. I think they’ll also recognize the social manipulation Roberts sees in this report and others like it.

Predictably, the attacks aimed at green groups drew outrage from their targets. Just as predictably, the outrage was used as evidence that S&N are brave truth-tellers, renegades, the “bad boys of environmentalism.” I don’t know if S&N planned it that way, but the strategy turned out to be pure media gold.

If S&N had come forward with nothing but a positive agenda for the future of clean energy, they likely would have been politely ignored by the mainstream media just like dozens of earnest green agenda-bearers before them. (Grist’s bookshelves sag under their weight.) But S&N capitalized on an insight that had been ignored by their forebears: nothing, but nothing, draws media interest like liberals bashing liberals. They enjoy conservatives punching hippies. They dig centrists punching hippies. But they looove ex-hippies punching hippies. A pair of greenies bravely exposing the corruption and dumbassery of all the other greenies? Crack rock.

It’s important to note that it’s not just Beltway reporters who love this stuff, though they love it the mostest. Ever since the perceived successes of Bill Clinton’s triangulation and the ascendency of the New Dems, the road to acceptance on the left has been paved with hippie punching. To be legit, one must signal to one’s peers that one is not like those liberals, the old-fashioned, soft-headed, bleeding-hearted, slogan-shouting kind. One is a Pragmatist, not a Partisan, a traveler on the Third Way, not on the old, boring Left Way, a hard-headed, practical sort, not some kind of dippy dreamer.

Similarly, there is nothing like a brawl among secularists to get people to sit up and pay attention. Sounds good, right? All press is good press and all that? Well, that depends on your goals.

The difficult thing is, they all face the same perverse incentive structure. The wonky stuff — and BTI cranks out some genuinely good wonkery — doesn’t get clicks. What gets attention (and thus keeps the appearance of influence alive) are the attacks on hippies doing it wrong. These incentives have led the Breakthrough crowd to meditate endlessly on the failings and failures of others pursuing similar goals by different means. In S&N’s increasingly baroque telling, the green groups and their partisan blogger defenders are omni-incompetent: spending money wrong, pursuing the wrong policies, dealing with the wrong people, framing wrong, arguing wrong, responding to their critics wrong, and almost single-handedly insuring that there is no progress on climate change.

Similarly, “New Atheists” have been tarred as omni-vituperative: they don’t merely disagree with people in strong terms, they destroy them, leaving them weeping husks with shredded reputations. And they scare away all the religious folk who would otherwise jump up to work with secularists. Or maybe not.

The effect has not been the dawning of a new day of post-partisan support for clean energy. Turns out demonstrating one’s moderate bona fides by punching hippies doesn’t actually bring any conservatives over. They’re as partisan about clean energy as they are about climate. Mostly, the result has been lots and lots of press attention on hippie errors, a subject upon which everyone with a keyboard is apparently an expert.

Exactly. I said it Thursday, but it bears repeating. “A gatekeeper’s job is to keep people out, not to let them in.” They don’t want you on their side. They do, however, like the results of the squabbling.

The ineffable but unmistakable property of a Breakthrough-esque foray into politics is that it makes douchecanoes of everyone it touches, like some sort of inverse King Midas. Its authors, the journalists who cover it, its critics — no one comes out looking good. I’ve paddled that douchecanoe myself, many times, and every time ended up feeling vaguely dirty. I can’t put my finger on the precise mechanics, but I’ve learned to recognize it.

So I decided, with a few lapses here and there, to stop responding. Life is too short to spend around things that bring out your inner douchecanoe. I’d rather write about ideas I’m excited about. That’s why I was going to let Nisbet’s report slide on by.

Isn’t it really about time all of us secularists did the same? Pay attention to what we want to pay attention to, pay attention to what we want others to pay attention to, and stop distracting them by punching each other, no matter how entertaining they find it. Expend our energy on them, not on each other.

We’re at the bottom of the pile now. What have we got to lose?