Let’s Talk About Last Friday

Alright.

Let’s talk about last Friday.

I’m not slipping into character for this one. I’m not going to start cursing, I’m not going to emphasize a bunch of stuff. I’m not going to try to be funny, or abrasive, or anything like that. I’m just going to talk to you guys for a moment.

As you know, last Friday, for Furry Friday, I took some stories from furries and, with their permission, used them to illustrate some points. The points were basically intended to be broken down as follows:

  1. Furry can affect your court proceedings, so you need to be aware of that;
  2. Although you’re a welcoming fandom, Furries who are above the age of consent should avoid circumstances that lend the appearance of impropriety in dealing with minors;
  3. You shouldn’t be forming Twitter lynch mobs; and
  4. Rape should be reported to the police.

3 and 4 were touchy subjects. Very touchy subjects, and I got a lot of mixed responses to them. They ranged from “Thank you for this” to “How dare you tell us not to self-police” and all the way up to “The police won’t do anything.”

I’m not going to touch the rape topic today. I’m not touching it because I’m already working on something to help explain how the justice system deals with this stuff, and to hopefully help explain why it may seem like the justice system doesn’t care. I put out a call among lawyers, and am arranging some time to interview a sex crimes prosecutor in relation to the largest concerns I’m hearing and the biggest protests to the statement made. I’d prefer to let the person who actually handles rape cases speak on that, and accordingly I’m not going to talk about it until then.

The lynch mobs thing, though, I will touch on.

The largest protests and loudest dissents were regarding the perceived position against the Furry community policing itself and allowing “bad actors” to go free and unpunished. It’s likely a response to how I phrased things in the article. I can see how people may have taken that as “lay off rapists.” It wasn’t. It wasn’t even really about rape. It was about jumping to conclusions of judgment and acting on them publicly, and encouraging others to do so.

I don’t think that’s right, and the reason I don’t think that’s right is simple: innocent people will get tarred by that brush.

In law, we have something called “Blackstone’s Ratio.” It goes like this:

Better ten guilty persons escape than one innocent suffer.

“Blackstone” is William Blackstone, an English lawyer and judge, who wrote “Blackstone’s Commentaries,” a massive set of tomes on English Common Law, the basis for American law. His ratio espouses the simple principle that a court, and the law, should always err on the side of innocence when guilt is not clear beyond a reasonable doubt.

The ratio is a leading principle in our courts today, and every lawyer knows it. The idea is a person should not suffer the consequences of being adjudged guilty until they are found guilty in a court of law, and to saddle someone with those consequences it is necessary to first gather evidence sufficient to meet the burden placed upon the accuser/the state. In encouraging people to act on Twitter, or in other social media, I worry that communities will take acts outside of the law that cause lasting and significant harm based on emotional reactions rather than fact. This is an appeal to the pathos of the audience intended to incite the passions and incite a response, not an appeal to the logos, or logical reasoning, which should rely upon facts and assessment of those facts.

As an attorney, I simply cannot endorse people taking life-altering actions against another based on an appeal to the pathos. As retired Third Circuit Justice Adilsert stated prior to his 2014 death, “Logic is the lifeblood of American law.” It’s what attorneys are trained to to, and what our courts, in a perfect world, should do. In a perfect world it’s what we all should do, reserve judgment until the facts are out and in the open.

I say “in a perfect world” because there are many examples where advertising an accusation has aroused a call to action against an alleged perpetrator, had significant effects on their life, and ended up being a false or mistaken accusation. This is the reason I hated Nancy Grace.

How’d we get on Nancy Grace?

Duke University.

In 2006, an African-American exotic dancer accused three white, male members of the Duke Lacrosse team of rape. This is important, because there was a disparity in background between the accuser and the alleged perpetrators that made it very media worthy.

On March 13, 2006, Ms. Magnum, the dancer in question, was hired to dance at a party for the Duke Lacrosse team. At some point in the evening things soured and she left. She was later picked up by the police, visibly intoxicated, in a Kroger parking lot. While in custody, she stated she had been sexually assaulted and was immediately transferred to a medical center. Police later discovered an email written after the party by a team member that stated he was “going to invite strippers over, cut off their skin, and ejaculate on them.” The rest of the chain made it clear it was a (pretty tasteless) joke imitating American Psycho, a movie beloved by people that think loving that sort of thing makes them “edgy” but lack the charm of Christian Bale to pull off the Bateman role.

On March 16, 2006, the case and investigation were made public. The media, internet and television, promptly lost its shit. Here are some quotes, made on-air and in public, during the first month of the investigation:

Nancy Grace:

“I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape!”

Why would you go to a cop in an alleged gang rape case, say, and lie and give misleading information?

Susan Estrich, Criminal Law Professor:

I teach criminal law. But what are we dealing with here? The mafia, or a sports team from a first-class university. Instead, they hire them lawyers to trash the victim and the prosecutor.

Former Prosecutor Wendy Murphy:

Nifong should be rewarded for respecting the defendants’ rights by not leaking the type of evidence that could help him personally respond to criticism.

I never, ever met a false rape claim, by the way. My own statistics speak to the truth

Amanda Marcotte, a blogger, stated that those who defended the players were “rape loving scum,” and, even after the case began to fall apart, said this:

In the meantime, I’ve been sort of casually listening to CNN blaring throughout the waiting area and good fucking god is that channel pure evil. For awhile, I had to listen to how the poor dear lacrosse players at Duke are being persecuted just because they held someone down and fucked her against her will-not rape, of course, because the charges have been thrown out. Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it? So unfair.

We all know where this is going.

The players weren’t guilty. They were able to produce exonerating evidence. Months after the fact, and after months of abuse and being labeled rapists in the media. Even then, they weren’t fully exonerated in the eyes of the public, because statements like this were made:

“They do not deserve an apology.”

Now, someone will say this is anectdotal evidence, and therefore it is unreliable and biased. Right, and if we were talking scientifically that would be right. However, in a legal sense anectdotal evidence is valid evidence that can be tested for reliability by examining the source of the information and the circumstances surrounding it. If you want to be very broad, the testimony of the victim is an anectdotal as the testimony of the accused in a legal sense. The question is one of reliability, which is left to a jury to determine.

But when there is a bias in reporting of something, there is a bias in reaction to that same action. People know only what they hear, and often times reject those explanations or counterarguments that go against what they have already decided is the “true story.” The Oatmeal recently did a comic on this. The story that we are presented with first is often the accepted one so long as it speaks to our core beliefs or the version we are inclined to accept. Attempts to present contrary evidence often fall on deaf ears. Duke shows that.

And, as the treatment of Menda Duckett by Nancy Grace shows, it costs people their lives.

This isn’t even touching on the issue of non-malicious misinformation, that which is spread because things are misunderstood.

Earlier this week, I posted a list of states that people have said I was from. There were about 15 states there. Some of them I’ve mentioned before, some of them I haven’t, but I’ve also mentioned exactly what state I am in, and what state I’m from. I’ve said that explicitly, sometimes on the same day that I’ve heard someone say I was from somewhere else.

I was told recently I attended Harvard Law. I wish I had. I didn’t. My father did, as I’ve said repeatedly.

People confuse things, even if they aren’t malicious in doing so, and people conflate things, and then it gets out into the wild and people act on it. Sometimes they’re acting on information that was never stated by a victim. Sometimes they’re acting on a version of events told by a person who told another person, without looking into it at all for themselves.

This isn’t “Don’t believe a victim.” This is “encourage the victim to report to the proper authorities, and support the victim. Don’t jump on Twitter and demand justice from a mob.”

This isn’t “don’t protect others in your community by steering them away from those people.” This is “don’t encourage others to take justice into their own hands based on what you have heard alone.”

If you read last Friday’s post, you’ll notice the victim in Number 4 was told to be wary. It wasn’t enough, and not because the victim did anything wrong. It wasn’t enough, but it was what you should do: if you know someone is putting themselves in a dangerous situation, you should privately tell them.

I got a chance to see the self-regulation of the furry community in action last weekend when an incident occurred. I don’t know many of the details, but I know it was someone acting inappropriately towards another, and I watched the convention staff have a serious conversation about escorting that person out of the convention and banning them in the future. The staff did what it should do: it kicked it up the chain for a decision. It did not hunt down the perpetrator, haul them out, and throw them on the sidewalk. I don’t know what the resolution was.

At the same time, I had a chance to talk to someone who worked security at a non-furry convention, who simply said “Anything criminal gets reported to the police the moment we become aware of it.” Which is a good regulation to have, the sooner the police become aware, the more likely the crime can be dealt with. Plus the accused can also opt for a Colorado criminal defense lawyer or someone similar to talk through their options and how to obtain a lesser sentence should they be issued with one.

And this isn’t just for the protection of the accused, but the protection of the accuser. Accusing someone of a criminal act, if it turns out to be untrue, is defamation per se. You don’t have to prove much beyond 1) someone made the statement to a third party, 2) it accused someone else of a criminal activity, and 3) it was untrue. Notably, Plaintiff doesn’t have to prove it was untrue. The defense has to prove the statement was true, because the truth is a defense and you have to prove your defenses when you raise them. So yeah, you can face consequences from raising an internet lynch mob to call someone a criminal. It happens. They may turn to a California defamation lawyer, or one similar, to bring charges against the person that is defaming them.

Look, I’m not trying to tell you how to run your community. I am trying to say that mob justice tends to have a lot of “mob” and only a little “justice.”

Support the victims in your community and encourage them to report.

Don’t jump to encouraging the world to take action against the accused.

Keep each other safe by privately warning others when you can, but don’t rile up the masses to action.

This went on much longer than I intended it to. I’m rambling now. So I’m just going to leave it with one last thought:

Everyone, no matter how reprehensible the actions they are accused of, deserves the benefit of some assumed innocence until proven guilty in a court of law for a crime. To do things any other way leads us down a path where we might as well dispense with the rule of law and allow people to mete out justice based solely on their personal feelings about a person or a matter. Maybe that will be satisfactory to some people.

But God help them the moment the end up on the wrong side of that system.

-BB