Posted on December 11, 2014 in Uncategorized

When I first saw the Rolling Stone UVA rape story by Sabrina Erdely, I'd been thinking about satanic ritual abuse stories because Fran and Dan Keller were in the news. I tweeted:

Speaking of satanic ritual abuse: Mark W. Bennett (@MarkWBennett) December 1, 2014

The story was unbelievable to me. Not "unbelievable" in the loose sense of "sensational," but literally unbelievable. I knew that the story was false

The Erdely UVA story is going to turn out to be a long rambling joke. "Journalism!" will be the punchline. - Mark W. Bennett (@MarkWBennett) December 2, 2014

I say that "I knew it." For you to know something, three conditions must be met: you have to believe it, it has to be true, and you have to have reason to believe it.

I believed that Erdely's story was false.

The story-of a violent gang rape-was false. It appears from the rereporting performed by the Washington Post that the alleged victim made up the story as part of an elaborate scheme to win the love of her friend "Randall."

So to have known the story to be false, I have to have had reason to believe that the story was false. Did I? Nonlawyers asked me why, as a criminal-defense lawyer, I found the story so incredible.

As a criminal-defense lawyer, I ask three big questions when trying to get to the truth of a story:

• What else must be true for this to be true?• What if things had gone a little differently?• What's really going on here?

If Erdely's story were true, seven men violently raped a sober woman on broken glass upstairs in a house for three hours while a party was going on downstairs. Two men watched. Then the nine men left the woman lying there alone, "face beaten, dress spattered with blood" to make her own way out of the house ((With her cellphone? "Disoriented, Jackie burst out a side door, realized she was lost, and dialed a friend, screaming, ‘Something bad happened. I need you to come and find me!'")) while the party was still going on downstairs. Then when, that very night, the woman reported the rape to her three best friends on campus (two men and a woman), the three "launched into a heated discussion about the social price of reporting Jackie's rape," and decided not to report it.

What else must be true for this story to be true? Each of these twelve people who knew what happened to Jackie that night must have valued his or her own interest above the principle that men shouldn't rape women.

Violent rape is abhorrent to the American male. ((I say "violent rape" to try to prevent quibbling here over things that not everyone would agree are rape-sex while all parties are drunk, for example. The assault described in Erdely's article would fit anyone's description of "violent rape," so we don't have to argue about sex with implicit but not explicit consent, nor about gaze rape. Yes, I know that there are those who think that any unwelcome sexual attention from a man is violence. I recommend that they get out more.)) There are men who are exceptions to this rule, who have no compunction against violent rape, but they are few and far between, and they don't advertise the fact-talking about it could be lethal-so the odds against finding nine of them in one room outside of a prison are slim.

Erdely's story was intended to demonstrate that violent rape of women is accepted in American culture. But for the story to be believable the reader would have to already believe a) that violent rape of women is accepted in America; and b) that because of this acceptance eleven men and one woman who knew about a violent rape kept the secret for two years.

It's all very circular-if you believe that we live in a "rape culture" with a callous attitude toward rape then the story is perfectly believable, and it proves that we live in a rape culture. If you don't believe that American men are okay with violent rape then the story is unbelievable and it proves nothing.

If you believe that three college freshman would count the "social price" of reporting a violent rape that had just happened higher than than the ethical, moral, justice, and safety costs of not reporting it, Erdely's story is credible. If you don't believe that-and I don't-the story is incredible. ((A digression: what is required for us to believe these things about human nature that Erdely would have us believe? We would have to either a) accept them uncritically; b) be inclined toward callousness ourselves, so that callousness in others makes sense; or c) not be inclined toward callousness ourselves, but think that we are superior to most other people in this regard. Why "most other people"? I'll get to that in a second. I believe that the credulity with which Erdely's article was met was a result mostly of (a). People accept rape narratives uncritically. That so many people are shocked that the story is not true helps disprove Erdely's rape-culture narrative.))

I didn't believe that American men are okay with violent rape, I didn't believe that the nine conspirators could keep the secret for two years, and I didn't believe that three college freshman would count the social cost of reporting a violent rape that had just happened higher than the myriad soul-bankrupting costs of not reporting it. "What must be true for this to be true" gave me reason to disbelieve the story.

"What if things had gone a little differently?" is a truth-seeking question to ask when the story involves a deliberate plan or conspiracy. The more ways the plan could have gone wrong but didn't, the more likely it is that the plan was fabricated after the fact.

For the imaginary man's imaginary plan to succeed, a thousand things had to go just right; if any one of them had gone even a little bit wrong he would have landed in prison. His plan depended on (among other things):

  1. None of the conspirators getting cold feet that night;

  2. All of the conspirators keeping their secret, not spilling the beans while drunk or remorseful;

  3. Jackie not calling the police while the room was still strewn with physical evidence;

  4. No decent human being seeing Jackie leaving the party injured and intervening;

  5. The people she told not themselves calling the police;

  6. Jackie not reporting the rape to the police later, or the conspirators not rolling over on each other when threatened with prison time; and

  7. Jackie not telling her story within the statute of limitations to a competent reporter. ((Some people think that Erdely believed her source; I think this is too generous to Erdely. If Erdely had believed Jackie she would have done the investigation that she would have expected to corroborate her story. That she didn't do that investigation suggests that she didn't expect it to corroborate her story, which suggests that she knew that Jackie's story was a fable. Journalism!))

There are two explanations for how this plan succeeded so well for two years. Either the conspirators walked between raindrops, or the rape never happened. The second explanation is the most likely.

The third question, "What's really going on here?" sets the allegations against known facts, verisimilitude, and plausibility, and finds the most probable explanation. "What's really going on here?" led the Washington Post to evidence that "Jackie," the alleged victim in the Erdely story, had fabricated the man whom she was supposedly going out with on the evening of her claimed rape. Not having the benefit of the Washington Post's reporting at first, "what's really going on here?" led me to the conjecture that something bad had happened to Jackie-that perhaps she had been sexually assaulted by her date at the fraternity house-but that she had blown the story up for Rolling Stone.

My three questions-What else must be true for this to be true?, What if things had gone a little differently?, and What's really going on here? didn't lead me all the way to what now appears to be the truth-that Jackie was catfishing Randall and fabricated the rape to try to win his heart-but each led me in the right direction and made me disbelieve the story as published.

Share this post:
Back to Top