A recent Rolling Stone article which alleges a particular fraternity has organized gang-rape as part of its initiations is coming apart at the seams. Upon questioning, the magazine has added to the online version of the story a note that it appears they put to much trust in the source.
They have not “corrected” or “retracted” the story, in so many words. Well, what are the “so many words?” Every additional day that the story is out there under their name, are they setting themselves up for worse and worse libel actions against them?
And who gets zapped, the author, Sabrina Erdely, or the publication, in a libel suit? And could the publisher sue the author?
Similarly, a charge of rape was made by the actress Lena Dunham in her autobiography, with, supposedly even acknowledged by her, a thinly disguised description pointing to only one person, and many facts about the account don’t add up.
This is why (some) lawyers make the big bucks. Generally if one is commenting on a public figure and on a matter in the public interest (and is a fraternity a public figure?—see big bucks above) it must be shown that the author acted maliciously in order to recover. If the author is commenting on a private person in a matter of public importance, then negligence must be shown.
If it is a private person with no issue of public importance, the simple publication can be actionable.
Phi Kappa Psi could probably sue “Jackie,” but I doubt she has significant assets so good luck collecting on a judgment. Rolling Stone has deep pockets, but they were duped by someone who is obviously unstable. While the specific narrative laid out in “Rape on Campus” did not happen as described, many people close to the case believe something happened. A lawsuit could easily go either way. (The University might consider a suit against the magazine as well, but the most damning claim against UVA–that they handle sexual assault cases poorly–is kind of indisputable.)
Would it be in Phi Kappa Psi’s interest to pursue a lawsuit? No, but the public’s interest certainly would be served. The rules of evidence in a civil trial are a lot different than those in a criminal trial, the courts aren’t bound by some verbal agreement Jackie made with the RS reporter, and an adversarial system would dredge out a lot of details, not just about this incident, but about incidents at Phi Psi in general. That fraternity had a pretty rape-y reputation when I was a student at UVA in the early 80s and a protracted lawsuit would go a long way towards separating fact from fiction and bringing a lot of ugly incidents out into the light.
The cleaner Phi Psi’s hands are, the more likely they are to pursue a judgment against Rolling Stone. But nobody’s hands are that clean. I suspect they’ll grumble about the injustice of it all, hunker down, and wait for this scandal to fade out. Look how fast it unraveled in just two weeks without their saying much of anything.
Yes, they were. As I said, this could go either way very easily: The magazine that cut corners, or the frat house with some possible skeletons in its closet. I’d like to see both get mucked out, but I think Phi Psi’s cautious self-interest will prevail.
What happens if the fraternity sues for libel, and during the depositions by the fraternity brothers and other students, they admit that they were drinking that night even though they were not at least 21 years old? Would they be subject to prosecution? What if they admit to whatever drugs they took?
I expect that Rolling Stones attorneys would ask far-ranging questions, including about drug use and distribution. “So you were handing out marijuana, Ecstasy, etc. to other students at the party?” I don’t think that would be considered a “minor criminal offense.”
Underage drinking? Nothing. Past the statute of limitations. Murder? Possibly a lot. Everything in between? It depends.
Admission of a criminal offense that is not past the statute of limitations may lead to an investigation being opened up. It will not generally be grounds for prosecution in itself. And being deposed does negate your 5th amendment rights either.
From what I’ve read on previous threads - doesn’t admitting this in court or in a (sworn) deposition then negate your right to refuse to answer about it using the Fifth later on in subsequent trials? At very least, they could read your sworn testimony into he record during your trial, and unopposed by any other testimony, that would be pretty damning. If you admit to being high, you can’t really refuse to say who gave you the drugs? (Or is receiving a trafficking offense too? For personal quantities?) Regardless, a libel case that includes a whole lot of “taking the fifth” by the plaintiffs probably doesn’t work too well.
As for Statute-of-limitations offenses, I guess the question then becomes “how drunk were you?” and “how high?” and therefore “how reliable is your testimony?”
The frat could sue, I imagine, but unless a specific person was named, do any of them personally have a standing to sue? Does simply being a member of the frat give the person the right to claim they were personally libelled? Or also being at the specific party? If any sex, or any group sex, happened during the party does that go some way towards negating the claim it’s a false claim of rape? (The report may have been honestly mistaken if that’s what actually happened…)?
If I didn’t right it clear enough I meant that they could not be compelled to admit to a criminal offense in a deposition. Any on the record comments stay on the record and can be used later. There is no doubt that in a civil case bringing up other bad acts can hurt the case and at the very least muddy up the water.
But admitting to something in a deposition is not nearly enough for a criminal prosecution. Let’s take the example of selling drugs which was brought up before. Frat Dude admits to selling drugs in a civil deposition. So you charge him and go to trial. Where are the drugs? Where is the buyer? What evidence do you have that anything happened at all? Can you prove that he didn’t have baking soda and oregano?
In real life no one would bother with a case like that.
I jut wanted to note that anyone who wants an actual, lawyer-type answer to the OP’s question should read the article linked by ctnguy. Volokh goes into considerable detail about a bunch of possible tort claims, and offers his assessment of how difficult they might be to sustain. It’s a fairly long read (well, for a newspaper blog post, anyway), but it’s very informative and worth the effort if you’re interested in this stuff.
Near the end of his post, Volokh notes that, for the individual members of the fraternity, they might be better off just leaving it alone, especially since none of them are currently readily identifiable as individuals related to the story. If they decide to bring a lawsuit, however, their names would become very public very quickly, which might not be good for them even if they win the suit. As Volokh asks:
Most replies have been about the UVA story but the OP also mentions this case.
Brief synopsis. In Dunham’s book she describes an encounter in college that she considers to be a rape. She names the male as “Barry” and describes him as the most prominent republican on campus. Earlier in the book she states when she is using a false name for people. She does not do this for Barry. She also describes him as dressing pretty flamboyantly and gave other specific details. Barry is also portrayed as being violent towards other women too.
Well apparently there is one Barry who was a well known republican on campus at the time and apparently it is very easy to find out who he is. Oberlin college is small and republicans stand out like a fart in church. Barry claims that he never had contact with Dunham of any sort. And the description of him is way off. But there are no other men who fit that description from time either (purple cowboy boots, unique mustache, radio show, working in the campus library) that anyone can find. Specifically Barry states that many have found him and he has been harmed by the book.
But what are the implications for someone wanting a more advanced career? Now that it’s on record that you “trafficked” in a sworn statement, is that something you would have to admit on your bar admission application?
(There was a discussion in a different thread about employers, etc. asking “have you ever…”, “have you ever been charged with…” as well as asking about convictions.)