Cf, without minimizing what Liz Seccurro went through, the rape in 1984 is simply not enough to be germane to the actions of students today, none of whom were even alive back then. You’ve really got to stretch to say that because of that, it was a “rapey” place. Now if there were other allegations more recently, bring 'em on, but that’s just your usual anti-Greek bias talking.
No, Sevmom, that rape was real. Ms Seccurro also went to the hospital, police and campus administration right after it happened so there was physical evidence at the hospital as well as police and campus report.
Pizzagirl, I never said that rape was not real so don’t know where you’re getting that from. The only thing that is still in any question is whether or not any others were involved. There was some suggestion that others could have been involved but there was apparently not enough evidence to ever charge anyone other than William Beebe (who as I said came forward in the process of making amends in his AA program).
I actually read about Liz Seccurro in my sorority alum mag a few years ago before the RS UVA story and remembered and admired how brave she was.
I’m pretty much a legal realist, which means that in discussing cases I think most about what judges and juries are likely to actually do, as opposed to focusing entirely on the potential legal arguments. In this case, I think folks are overestimating how sympathetic this fraternity would be to a judge and/or jury in central Virginia. So, again I predict there will be a relatively modest settlement.
(Note: I don’t think the judge and/or jury is likely to be very sympathetic to Rolling Stone Magazine, either, which is why I think the fraternity would probably win a fully litigated case–but not get huge damages. The purposes of both plaintiffs and defendants will be best served by a settlement, so that’s probably what will happen.)
One legal realist to another, there are a couple problems with an argument similar to what you are sketching out. First, realize that people who are predisposed to believe that fraternities are bad in general will not be on the jury. They will get excluded during voir dire. Therefore, one party or another is going to have to bring up the frat’s bad reputation, assuming the Judge even allows such evidence, which is a pretty big assumption, frankly. Obviously, the party who will bring this up is Rolling Stone. Every time Rolling Stone enters evidence of prior bad acts, or a bad reputation, the plaintiff will point out that Rolling Stone is still convinced that the frat is bad, and that they are still trying to smear these poor boys. The farther away, either in time or kind, these “bad acts” are, the more likely the plaintiff’s argument will be persuasive. The more persuasive the argument, the more angry the jury is likely to get. Angry juries are bad.
The other problem with this type of argument is the more effort Rolling Stone puts into trying to establish the frat’s bad reputation, the harder it will be for them to convince the jury that they actually did any fact checking or due diligence before running the story. It is very hard to say we went into this with an open mind but look at what bad guys this fraternity is. The harder you push, the more obvious the contradiction will appear. Effectively, you are giving up any liability defense.
So if you represent Rolling Stone, pushing an argument that the frat is not entitled to damages (or only entitled to nominal damages) means that you will effectively concede liability. This means that the jury is going to get a piece of paper with some variation of “We the jury find in the favor of the Plaintiff and in the amount of ____________”. So someone is going to write some number on that line, you effectively will be standing up for opening statement knowing that will happen. Your argument is that if Rolling Stone puts on enough stuff to show what bad guys this frat is in general, that number will be really small, say less than 100k. But to get there, you probably are going to have to really smear the frat, and likely will have to fight with the judge to get your evidence in. The risk is that if even a couple jurors think this big bad magazine is trying to bully these kids the number on that line will explode. There are times when you have to try a case like that. Speaking from experience, it is never fun and never done unless it is absolutely the last resort.
I guess I think Rolling Stone will have a better lawyer than you seem to think it will have. But ultimately, I guess it depends on how the fraternity’s lawyers estimate their odds of getting a big recovery, and whether they think it’s worth going through discovery and litigation to get it.
Won’t it depend on whether the plaintiff(s) are the individual members of the frat or the frat itself? The individual members have had their individual reputations hurt as well as losing money by having to move out of the house, being dropped by the national organization, maybe losing an internship or job opportunity because the name of the fraternity was on the resume or application. I don’t even know if the fraternity has been reinstated by its national organization or the university. Money could still be being lost on the tangible assets as well as the intangibles.
I find it hard to believe that anyone, judge, jury or otherwise, would be anything but outraged that an established news publication would run an explosive, front-page article accusing 18-year-old college men of being gang-rapists, which are felony criminals of the worst kind, without corroborating the accusation with a single source other than one unforthcoming young woman.
@hunt Rolling Stone will have excellent lawyers. So will the plaintiff, most likely. All things being equal, I will take the logically consistent argument every time, which to me means not giving up on the liability defense. Of course, none of us know what the actual facts are. If Rolling Stone has a bad fact or two hiding in the cupboard (like they were sloppy in what they gave the lawyer before they ran the story, or they had reason to believe the woman was full of beans), then yeah, they may have to try the case you are outlining. But they won’t do it willingly.
@twoinanddone, yes, it will matter somewhat. In both examples, there will be nominal quantifiable damages. Lost dues, moving expenses, maybe missed job opportunity, etc. The bigger damages will come from the death threats/damage to reputation, etc. There are pluses and minuses on both sides I am sure. No way to know without being closer to the case.
The selection and exclusion process might take a long time! Excluding people who are predisposed to look at fraternities in a negative eyes is one thing, but if you consider the number of people who are naturally predisposed to think that females are mistreated with regularity in booze fueled affairs, the stakes get higher. Also, if this case goes to full litigation, there are high chances for a number of news events reporting fraternities and their ill-behavior surfacing between now and then.
Finding people who have remained oblivious to the news that describes poor behavior by fraternities as it shows up with great regularity might not be that easy. And for good reasons.
The fact that the students at UVA reacted to the publication and must have found the story believable still speaks volumes about how people judge fraternities and their behavior.
I do not think that the history of defamation cases brought against the media shows great success in winning, let alone obtaining large punitive damages. This should be especially true when the damages suffered are puny in physical assets or quite nebulous in terms of reputation, as it is in this case.
The best chances for both parties is a quick settlement with the insurance companies pushing the case and the potential plaintiffs being rewarded a lot more than a jury would dole out.
It is my inexpert understanding that falsely accusing a man of being a rapist is defamation per se, which under the law does not require the plaintiff to prove damages to his reputation; rather they are presumed. I googled briefly and it appears that Virginia follows the per se rule. Perhaps the defamation law experts on this thread can confirm.
But does that apply here? No particular man was accused of rape.
^I don’t know, and I have always seen that as the toughest part of the case.
My (also inexpert) understanding is that if the reader can discern your identity from the defamatory statements, then you have a case.
Definitely not the case here. There was no guy who fit the description in the article.
I think you are overestimating the interest that the general public has in such matters. CC is a different world.
Well, apparently a lot of people at Duke found the stripper’s rape story believable too, because of the prior behavior of the lacrosse players as a group. Yes the situation was different in that individuals were actually charged, but the fact that they were in the habit of notoriously rowdy and frequent partying, sexual aggression at least, and hiring strippers did not decrease their very substantial awards, I believe.
Rolling Stone, of course, has an established history of going for sensationalized articles on these subjects. Look at the oeuvre of Janet Reitman, who has written highly-colored articles about Duke and Dartmouth. (Of course, many here would be more than willing to suspend all disbelief in the latter case, since it supports their position.)
Hmm, I’m not as sure as you are about that.
The article at least implied that the act was an initiation ritual, which means to me RS is saying that all Phi Kaps are rapists. And specifically those pledges in 2012. I don’t know if that is specific enough or not.
Good point, Bay. And I believe that at least one guy was talked about by name, which led him to hire a lawyer, which led to the usual chorus of “hiring a lawyer means you are guilty of something.”
That’s right, Consolation. You reminded me that there was a swimmer/lifeguard Pi Kap who hired a lawyer and it was on the internet with his photo.
Well, it is a true that the bad behavior has been mostly overlooked, confined to local news, and otherwise buried by the media in general. But when you start having the Today show running a series about this case and others, the perception is changing.
Again, the more this stays in the news, including a long court battle, the better it will be for the next generations of students. I can tell that, considering my personal experience with friends and families, that the issue of bad behavior and especially sexist behavior against women is more on the minds of parents today than it was a decade ago when I started college.
It is still far from an issue that captivates America, but it is getting traction and the exposure it clearly warrants.