Was ESPN unfair to quarterback cleared of rape charges? You bet it was.

The Jameis Winston rape investigation underscored the stark double-standard in the way we treat young men accused of rape as opposed to the women who accuse them.

Winston is the 19-year-old star quarterback for the Florida State University Seminoles and frontrunner for the Heisman Trophy. On December 5, 2013, state prosecutors announced that no sexual assault charges would be filed against Mr. Winston stemming from a sexual encounter with a female student that occurred last year. A female student at the school had accused Winston of rape after an encounter that two of Winston’s teammates witnessed and described as consensual. The state attorney said prosecutors did not even have enough evidence (probable cause) to arrest Winston, much less charge or convict him.  The accuser’s blood-alcohol level was 0.04%, which the state attorney said was “not very high.” There was no evidence of any drugs in her blood system. Another DNA sample from a different man was found on the accuser’s shorts, and the accuser “acknowledged having sex with her boyfriend . . . .”

End of story, right? Wrong.

Shortly after that announcement, FSU beat Duke University 45-7 to win the ACC championship. ESPN reporter Heather Cox trotted down to the field to interview Winston on national television. See here. In the course of that interview, Cox did something that should outrage all persons of good will, but of course, it didn’t.

First, Cox loosened Winston up with a series of innocuous, softball questions about the rape investigation – for example, about how his coach supported him — and the young man did his best to answer them.

But then, suddenly, without changing her tone, Cox switched gears and whipped out a question that was anything but innocuous. In fact, it was the ultimate “gotcha” question — the atom bomb of questions to pose to a young man accused of rape. No matter how Winston might try to answer it, it would make him look guilty to most observers.

Cox asked Winston why he exercised his Fifth Amendment by not speaking with authorities in the investigation. Specifically: “How come you decided not to talk during the process and on Thursday?”

Let us pause briefly to explain why Cox’s question was so terribly inappropriate. The refusal to speak to police is a right sacrosanct to our freedoms that is enshrined in the Fifth Amendment of the United States Constitution:  “. . . nor shall any person . . . be compelled in any criminal case to be a witness against himself . . . .”  The Supreme Court has made it clear that this right wasn’t designed to safeguard the guilty but the innocent: “. . . one of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances.”  In a criminal case, the burden remains on the prosecution to prove a defendant’s guilt, and every citizen enjoys the right to refuse to provide information that may assist the prosecution in its efforts to accuse, charge, or convict him of a crime. So important is this right that Justice Felix Frankfurter described it as “one of the greatest landmarks in man’s struggle to make himself civilized.”

The Supreme Court has also recognized that “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.” It is for this reason that judges instruct juries that no adverse inference may be drawn from a defendant’s refusal to testify. Prosecutors are not allowed to make an issue to the jury out of a defendant’s refusal to speak.

The average person thinks that if a man accused of rape has nothing to hide, he should just tell the police what happened because the truth can never hurt him. Unfortunately, that’s not the way it works.  The Innocence Project Web site is replete with the cases of young men who had the same wrong idea. The Supreme Court has stated that “one of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances.”

ESPN’s Heather Cox is a seasoned sports reporter and no dummy. Cox surely knows, or should know, that the average person would infer that a refusal to talk to police is a sign of guilt. That didn’t stop her from playing “gotcha” on national television with a young man who, despite his fame, is still just a teenager trying to cope with an explosion of attention.

Exactly what purpose did the question serve? Are we to believe that Cox didn’t know damn well why Winston did not talk to the police? Obviously, his attorney told him not to. Cox also knew or should have known damn well that when she ambushes an unprepared 19-year-old with that particular question, he isn’t going to be able to provide an off-the-cuff tutorial about the Constitution that would to satisfy anyone.

If Cox wanted a real answer to that question, she should have posed it to Winston’s attorney. Our guess is that a real answer isn’t what ESPN was after. Our guess is ESPN was looking for Winston to stumble around and look guilty so that ESPN could convict him in the court of last resort, the court of public opinion.

After Cox asked the question, Winston did the right thing, in fact, the only thing he could do. He walked away. It was the smartest play he made all day, and that’s saying a lot.

What’s disheartening is that Cox and Cox’s bosses at ESPN might think that insinuating Winston’s guilt ambush-style, before a national audience, made for “good” television.

Would Cox and ESPN dream of asking the accuser why the police report reveals that the case was suspended last February due to a lack of cooperation from her? And about how the investigation was only jumpstarted in November by the news media? Of course not.  To even consider asking her those questions would cause many to brand the questioner guilty of the ultimate sin, “victim blaming.”

You see, it’s wholly unfair to ask a rape accuser why the police say she didn’t cooperate, yet it’s somehow fair to make a presumptively innocent teenage male look guilty on national television by asking why he exercised a Constitutional right that many brave young men his age have died for.

But that’s how it goes in the loopy, politicized climate that surrounds all things rape. Need more examples?  While the rape investigation was ongoing, Winston’s FSU played the University of Florida Gators and some Gators fans wore T-shirts emblazoned with the following: “The Rapers: Forced Sex University.” The shirts were intended to maliciously attack the presumptively innocent Winston by suggesting he’s a rapist, in the sometimes cruel spirit of intense college football rivalries.

The editors of the University of Florida student newspaper, the Florida Alligator, should have been outraged that their peers took twisted delight in treating a presumptively innocent man as if he were a rapist. Indeed, the newspaper took issue with the shirts, but not for the right reason. They wrote an editorial that said the shirts would send “a damaging message to women that” – wait for it – “victim-blaming is inevitable . . . .” And if that wasn’t enough, on behalf of the school, the editors apologized to “the victim and her family.”

We can’t make up this stuff. And that’s not all. Emily Bazelon, a self-proclaimed feminist, wrote the following about the Winston case: “Whether schools should punish athletes who have been accused but not convicted—or in Winston’s case, even charged—is a hard call.”

In what other setting would people of good will sit still for such comments?

It goes on. The pundits trotted out the tired old arguments that suggested Winston’s guilt. Fox Sports reporter Clay Travis wrote: “Would this woman subject herself to intense questioning, physical examinations by strangers — it’s reasonable to assume she was treated by medical professionals that night to assess her well-being and examine her for signs of physical trauma — if nothing at all happened to her?”  Similarly, Emily Bazelon wrote the following: “. . . it is hard for me to imagine that she had consensual sex with Winston and then decided to lie and say it was rape.” (Bazelon also took offense because the prosecutor stated publicly that the accuser “acknowledged having sex with her boyfriend” at some point prior to the encounter with Mr. Winston. Bazelon says this amounted to “slut shaming.”)

We refuse to opine about what happened in that bedroom between Winston and the accuser. Only the parties who were present know for sure. We won’t brand the accuser a liar, and we won’t brand Mr. Winston a rapist. But in response to Mr. Travis’ and Ms. Bazelon’s queries about why a woman in the accuser’s position might lie to police, Bazelon has already provided one answer: fear of “slut shaming.”  If you need a real world example, check out the Hofstra false rape case. A young woman lied about rape in the Hofstra case likely because she was embarrassed that she was cheating on her boyfriend in a way society considers nasty. There is a “regret asymmetry” when it comes to sexual encounters that divides the sexes. It is a significant reason for rape lies. See here.

And we won’t even talk about the comments by pundits who suggested Winston was guilty based on the fact that rape is underreported. I mean, because it happens elsewhere, it must have happened here, too, right? Of course!

We are stranded in an era where young men accused of sexual assault are presumed guilty by people who write for major news outlets, and where anyone who dares to speak up for the rights of the presumptively innocent is demonized with terms like “victim blaming.” It is long past time to heed the call of John Leo, the prestigious editor of the “Minding the Campus” web site. Mr. Leo urges everyone to confront the notion that ours is a “rape culture.” He writes: “Stupid ideas spread when people who know better refuse to confront them.” That about sums it up.

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