I have long been a critic of Rolling Stone magazine and its contributing editor Sabrina Rubin Erdely (right) in its handling of the infamous campus rape story as well as the University of Virginia in not protecting the fraternity and its students in the controversy. (here and here and here). A jury has found that Erdely and Rolling Stone did defame Nicole Eramo, a U-Va. administrator who oversaw sexual violence cases at the time of the article’s publication. It is a victory for students and academics who are critical of the loss of due process rights for those accused of wrongdoing at universities, the subject of a prior column.
The Rolling Stone magazine retracted the University of Virginia rape story and agreed with a Columbia Journalism School review of major flaws in reporting and editing. However, as I previously criticized, the magazine refused to fire Sabrina Rubin Erdely despite her glaring failures as a journalist in researching and writing the story. For many of us, it was even more insulting to have Erdely testify how she was “A couple of other things struck me as odd. … I was getting a little hinky feeling.” This was due to the statement from the accusing student that she might have been mistaken: “I was just so startled. … Here she was saying in such a casual way, ‘Oh yeah, maybe he wasn’t in Phi Psi.'” Really? What be startled when you were acting without support beyond her account and ignored every other conflicting point or witness? Orderly’s eagerness to “expose” a rape culture at universities blinded her to such failures in writing the 9,000-word article titled “A Rape on Campus.”.
In addition to Columbia the shocking failures of Erdely to interview key witnesses, Sean Woods, the primary editor, was found as lacking in not doing enough to press Erdely to “close the gaps in her reporting.” Likewise, Will Dana, the magazine’s top editor, “might have looked more deeply into the story drafts he read, spotted the reporting gaps and insisted that they be fixed. He did not.” Notably, Woods has insisted he did push: “I did repeatedly ask, ‘Can we reach these people? Can we?’ And I was told no.”
The federal jury saw right through the defense and belated apologies. The 10 member jury concluded that Erdely was responsible for defamation even under the tougher “actual malice” standard of New York Times v. Sullivan, requiring knowing falsehood or reckless disregard of the truth.
Eramo sued over the magazine’s portrayal of her as callous and dismissive of rape reports on campus was untrue and unfair. Frankly, I was more eager to see the fraternity sue, but this will at least impose a cost on publications for such blind advocacy pieces.
Rolling Stone continues to make a good-faith argument while keeping Erdely on staff. It stated in the wake of the verdict that “In our desire to present this complicated issue from the perspective of a survivor, we overlooked reporting paths and made journalistic mistakes that we are committed to never making again.”
The trial lasted 17 days and heard from 12 witnesses as well as the playing of 11 hours of video statements and more than 180 exhibits of evidence.
Despite the widespread view that “Jackie” lied, her name continues to be withheld. In the meantime, there has been little discussion of the response of the University of Virginia in its immediate crackdown on all fraternities with little concern of the due process rights of that house or its members. University President Teresa Sullivan suspended all fraternities after demanding an investigation by the Charlottesville Police Department to request a criminal investigation. She later decided that “Phi Kappa Psi could be reinstated” after its members were painted as a group of rapists or enablers. Students could have potentially sued not just the victim but the school as we saw in the Duke lacrosse case. However, that did not materialize. The concern is that the University of Virginia has not made any substantial changes in guaranteeing greater due process rights for students or houses accused in such controversies. It has did not take any actions, or even investigated, “Jackie.” One can understand the desire not to discourage other victims of college assaults, a very serious problem for all universities and colleges. However, the lack of meaningful protections for the accused house and (by extension) students remains a concern.
The jury will consider damages and Eramo originally asked for $7.5 million.