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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  August 11, 2007
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Duke Case: Sense and Nonsense

Being "at fault" doesn't mean that the victim is blameworthy, that is, "deserving reproach or punishment" (although circumstances in which that is the case are conceivable), but not being blameworthy is not sufficient protection against murder or rape and not being careful is foolish.

LieStopper poster Greg:

"In my experience, the notion that one should 'never blame the victim' has become something of a mantra that is applied, without thought, to all circumstances. I don't agree that one should never blame the victim and so I tend to avoid agreeing with that as a general principle even if I agree as to the particular circumstance.

"I absolutely agree that neither Dave, Reade and Collin nor their families nor any of their teammates deserved what happened to them. This whole hoax was an unmitigated travesty. I hold the perpetrators in nothing but the deepest contempt. Those guys didn't 'deserve' any of it. But, still, it could have been prevented or avoided if ...

"I mentioned earlier that there's a difference between blaming the victim and saying the victim 'deserved' what happened. And there's also a point where inordinate attention on the victim's conduct will convey an implication that they deserved it. I don't think we've reached that point. Virtually the entire existence of this board has been dedicated to the wrongful conduct of Mike Nifong, the false accuser, the Durham PD, the administration and faculty at Duke and Tara Levicy. A comparatively tiny proportion of our attention has been directed at discussing how these guys could maybe have avoided getting into this position in the first place.

"I might agree that they shouldn't have held this party and that they should have known that very little good and potentially some bad or even very bad would come of it. Where I guess I draw the line is in saying that they brought it on themselves. That, to me, implies they deserved what happened. I don't think they 'deserved' any of it. But that doesn't change the fact that I agree they could have avoided being put in this position altogether. As Newport says, it's a nuanced discussion."

And:

"To those who say we should never blame the victims, let me offer a not-so-hypothetical example:

"A few years back, there was a scam going around here -- and forgive me for not remembering most of the details -- where the mark would be invited to participate in an easy-money scheme that, while clearly wrong, might not have seemed overtly illegal. All that was needed was some seed money from the victim, the mark.

"The scam, itself, was criminally brilliant. Prey upon people's greed with a proposal that is probably unethical, possibly illegal, so that when they find out they've been scammed, they're reluctant to report the crime to authorities.

"They're certainly not sympathetic victims. Is it OK to blame them? I say yes."

Liestopper poster Jennifer N:

"I think blaming the victim is a crock. You were wearing a short skirt so it's your fault you were raped. You were walking in a bad area of town so it's your fault you got mugged.

"This was the kind of crap that briefly came up over Imette St. Guillen. She was a grad student in NY city who went out to a bar one night. Her friend went home but she felt like staying out so she was out fairly late - alone. She was murdered that night.

"The question is - is it her own fault that she was murdered? Technically if she hadn't stayed out late by herself she'd still be alive. That's true but I think it's unfair. She made a mistake. She shouldn't have had to pay for it with her life. Besides, blaming her lessens the responsibility of the person directly responsible for her death - the person who killed her. The same goes for Natalee Holloway. She was 18 and she made a mistake. She should have stayed with her group. That doesn't mean it's her fault that she is presumably dead.

"I feel the same way about the players and the party. It was a mistake. But they did not deserve the false rape allegations and everything that went along with them. They deserved to forfeit several games - as Duke decided, and whatever punishments Pressler came up with. Oh, and if people's parents found out about it I'm sure they would have had something to say. That's where it should have ended.

"Just like the NY city case, blaming the players for the subsequent mess lessens the responsibility of those who are directly responsible for this mess. Crystal Mangum, Mike Nifong and members of the DPD.

"In each of these cases, you have a situation where dishonest slimeballs took advantage of a simple mistake made by young people. I'm more interested in the slimeballs than I am in blaming people for youthful mistakes.

"A person is either a crime victim or they aren't. If you're going to make how sympathetic the victim is or their conduct a factor in cases you're going to have a system that's even more whacked out than the one currently operating. Because people are going to have differing views on how sympathetic a victim is and just how egregious their conduct was. So if someone was wearing a short skirt or walking in a bad area of town that should be left out of it."

Greg:

"Jennifer, I can't quite tell if your intent was to agree or disagree with me.

"Sometimes, it's appropriate to blame people for bad things that happen to them. Sometimes, it's not. It's one thing to say that someone could have prevented the harms they suffered and quite another to say that they deserved those harms. I don't think the Duke lacrosse team deserved the agony of these false rape charges just because they had this party. But, sometimes, a little judgment and foresight can help us avoid potential problems and make ourselves less likely to be victimized.

"You've graduated law school so you must have taken Torts and you certainly, therefore, understand the notion of contributory negligence or comparative fault. I'm not saying that Reade, Collin or Dave were comparatively at fault because those harms were almost entirely the result of the intervening and unforeseeable wrongful acts of third parties.

"But you yourself acknowledge that they made a mistake by having the party. They suffered in spades for that mistake and that suffering was undeserved (I've made that point multiple times on purpose so that there will be no mistake about how I feel) but you evidently agree it was a mistake. I've been as vocal a defender of the Duke three as anyone but I'm not going to indulge the fiction that they were simply innocent bystanders who wouldn't do anything differently if they had it to do over again.

"Put on your lawyer hat for a sec, Jennifer. Sixteen-year-old girl sneaks out of her grand-parents house in the middle of the night to meet up with a boy she's just met. They're driving down a dark, country road that neither of them have ever been on before and he fails to see a dead-end in the road and drives off and hits a tree. She spends a week in intensive care and winds up with a closed-head injury.

"Did she deserve it?

"Does she have any contributory negligence?

"Could she have done anything to prevent it?

"Is that blaming the victim to ask those questions?"

Nice try, Greg. Thanks to you I've learned that Jennifer N is a lawyer. Hopefully, Jennifer willl learn something from what you wrote too, but don't count on it. Jennifer N says that a person is a crime victim or not and does not seem to recognize the possibilities that a criminal can be a crime victim (e.g., co-conspirators have a falling out and one who wants to back out is killed by one who wants to go through with it) and a victim can become a criminal (e.g. a policeman who uses excessive force after being attacked). Are you sure Jennifer is a lawyer? My email address is gaynormike@aol.com.

Webster's Ninth New Collegiate Dictionary: "FAULT implies a failure, not necessarily culpable, to reach some standard of perfection in disposition, action or habit."

Can a murder (or rape) victim be "at fault" for putting herself (or himself) in a situation where the possibility that she (or he) would be murdered or raped is greater?

Of course. That "fault" does not constitute a crime, or excuse a crime, or diminish the murderer's or rapist's criminal responsibility, but it does mean the crime might have been avoided and that's much more desirable than imposing punishment for the crime after the fact.

Being "at fault" doesn't mean that the victim is blameworthy, that is, "deserving reproach or punishment" (although circumstances in which that is the case are conceivable), but not being blameworthy is not sufficient protection against murder or rape and not being careful is foolish.

As I wrote in "Duke rape accuser: Victim or victimizer?," posted on April 20, 2006:

"What is needed in the Duke lacrosse team alleged rape case and every other case in which an accusation of criminal conduct is made is impartial and intense investigation, not incitation.

"If there was rape, let any rapist be convicted.

"If the dancer is trying to perpetrate a hoax, let her be convicted.

"Until the facts are established, let's call the dancer the accuser, NOT the victim."

One of those two Liestoppers posters also posted these self-revealing messages:

"I went to a stripper party at SC. At the time it seemed like harmless fun

"I suppose there was underage drinking and I'm sure I'll get pounded for this but I think the US drinking age is absurd. I don't care if someone is 18 and has a beer.

"This reminds me of one of the more judgemental and vindictive Nuns I've run across. She was my 5th grade Nun. She made it perfectly clear that if you stepped out of line even once - you were going straight to hell. One mistake and your fate was hells fires eternal. She told me I was going to hell because I had set foot in a Protestant church. That was it. It was all over for me.

"Fortunately my parents had me taken out of her class and had our parish Priest explain to me that I was not going to hell. In fact, my father, who is Irish, was convinced this Nun was the spawn of the Magdalene Asylums which was a notorious 'home' in Ireland for supposedly 'fallen women' - usually teenage girls who got pregnant out of wedlock. It was run by a bunch of terrifying nuns and it truly was like a fate worse than death for the girls who were sent there. But hey, those girls stepped out of line so they had asked for their punishment - or so the thinking went."

Anyone who accepts this poster's warped characterizations of my writing would be well advised to read it himself or herself. Nuance is not her strong suit.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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Copyright 2007 by Michael J. Gaynor
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