Washington Post made obviously false claims in discussing sexual accusations
By Jerome Woehrle October 6, 2018 October 6, 2018
The media has fought long and hard to undermine laws protecting the privacy of rape victims against irresponsible media reports endangering their safety. For example, in Florida Star v. B.J.F., the media convinced the Supreme Court to overturn penalties imposed on a newspaper for publishing the full name of a vulnerable rape victim whose assailant was still on the loose. The ruling cited the First Amendment.
No one knows about such rulings better than the Washington Post, which has filed court briefs seeking immunity from laws protecting rape victims. But the Washington Post recently pretended such rulings don't exist. It did so in order to leave the misleading impression with readers that a woman who falsely accused Brett Kavanaugh of raping her when he was a teenager had a right under the Violence Against Women Act (VAWA) to prevent public dissemination of a letter that contained details about her alleged participation in group sex. But as other journalists at smaller news outlets pointed out, VAWA creates no such right, and does not ban public disclosures.
The letter was from Dennis Ketterer, a former TV weatherman and one-time Democratic candidate for Congress. His letter took issue with allegations made by Julie Swetnick against Supreme Court nominee Judge Brett Kavanaugh. The obviously-false nature of Swetnick's allegations was cited by moderate Republican Senator Susan Collins in describing why she cast the deciding vote to confirm Kavanaugh to the Supreme Court. Swetnick is the accuser who incredibly claimed that she witnessed Kavanaugh at the scene of multiple gang rapes, and then went back to just such parties and got gang-raped as a result — meaning that by her own admission, she never reported obvious gang rapes, and was not concerned about the risk of being raped at the very parties where she claimed rape occurred. Swetnick's claims would not fool even the most gullible mind, and her claims were undermined further when she made contradictory and inconsistent claims to a relatively friendly interviewer on a liberal TV network. Swetnick herself was once sued for sexual harassment, by an employer that alleged she made false allegations against co-workers. None of these inconvenient truths prevented Washington Post writers from suggesting that the unreliable Swetnick was a "survivor" of sexual assault.
In an October 4 story by Sean Sullivan and Gabriel Pogrund, the Washington Post highlighted the false idea that disclosure of this letter by Senate GOP staff violated VAWA, suggesting that "Republicans have violated a provision of the Violence Against Women Act by disclosing Swetnick's purported sexual preferences." This suggestion by the Post was obviously false: as another newspaper, Roll Call, noted, VAWA only "applies to civil and criminal legal proceedings, neither of which are underway in Kavanaugh's confirmation battle." Alas, the Washington Post has many times as many readers as Roll Call.
VAWA contains rules about what evidence a federal court can consider in a sexual assault case, limiting the use of an alleged victim's sexual history. Rules of evidence obviously apply only in court, not the media or the public square. The fact that something is deemed irrelevant in court doesn't mean it can be censored. You can't be prevented from talking about it outside of court, and you can't be punished for publishing or discussing a leaked document just because portions of that document may be irrelevant or salacious. As the Supreme Court observed in NAACP v. Button (1963), the First Amendment protects speech regardless of its "truth, utility, or popularity."
In 2016, after the Access Hollywood controversy, the Washington Post falsely claimed that "any type of sexual contact or behavior that occurs with the explicit consent of the recipient" is "sexual assault." Neither federal law, nor the law of any of the 50 states, requires "explicit" consent before sexual contact. See these rape and sexual assault definitions from Virginia, New York, and California, for example. But the Washington Post's Danielle Paquette made this false claim over, and over, and over again, as did other Post reporters such as Aaron Blake.
There is good reason why consent need not be "explicit" or involve verbal haggling. Almost no one says to their spouse, "may I touch your breast" before doing so.
To obscure the fact that consent need not be "explicit," the Washington Post cited not the law, but rather the non-legal definition of sexual assault advocated by the Obama administration's Office on Violence Against Women, an advocacy office in the Justice Department. Its positions are about what it thinks the law should be, not what it in fact is. Commenters have pointed out this out to the Washington Post. Yet, the Washington Post recently peddled similarly false notions that consent to sex must be "explicit" in a September 25 article about the allegations against Kavanaugh. Even New Jersey, which has the nation's broadest definition of sexual assault (it requires "affirmative" consent to sex), does not require that consent to sex be "explicit."
Needless to say, the Washington Post does not peddle such expansive definitions of rape when a Democratic politician is accused of rape. It did not do so after former President Bill Clinton was accused of rape by Juanita Broaddrick, or a waitress was sexually assaulted by the powerful Senate Democrats Ted Kennedy and Christopher J. Dodd. Democrats receive special treatment from the Washington Post, which has not endorsed a Republican for president since 1952,
When obviously-false allegations of gang rape were made against members of Duke University's lacrosse team, and their defense lawyers protested misconduct by the prosecutor, Washington Post legal analyst Andrew Cohen called for gagging the defense lawyers, in a piece titled "Duke, Duke, Duke, Duke of Oil." The defendants were vindicated by DNA evidence and declared innocent by North Carolina's state attorney general, Roy Cooper (D). But even after the prosecutor was disbarred for misconduct and trying to frame the defendants, some journalists defended his misconduct. After a fraternity was falsely accused of sexual assault, the Washington Post's Dan Zak said fraternities should be burnt down. ("Now burn 'em down").
Apparently based on Julie Swetnick's patently unreliable allegations, The Washington Post's Jennifer Rubin maliciously referred to Judge Kavanaugh as a "thrice-accused" perpetrator of sexual assault. Rubin is a rabidly anti-conservative writer. Rubin writes the Post's misleadingly named "Right Turn" column and blog. They are so named because they are supposedly written from a right-leaning rather than left-leaning perspective. Yet Rubin supports all manner of progressive or left-wing causes — such as backing massive increases in government spending and likening critics of the Supreme Court's abortion decisions to Nazi collaborators. The Post falsely characterizes Rubin as conservative in order to stigmatize actual conservative views as beyond the pale. Its strategy is to depict Rubin's left-leaning stances as those of a "mainstream" conservative, in order to make any actual conservative who disagrees with Rubin look like an extreme, far-right ultraconservative by comparison.
On September 14, Rubin likened Republican senators who vote to confirm Kavanaugh to the Nazi collaborator Vidkun Quisling, who served as the puppet of Adolf Hitler when Hitler's Germany brutally occupied and looted Norway during World War II. Rubin wrote, "Should Kavanaugh roll back or eliminate constitutional protections for abortion, their names will be — as was the case with Vidkun Quisling — synonymous with 'sellouts,' 'collaborators,' or, to use a Trumpism, 'phonies.'"
When a massive hurricane descended on Puerto Rico, causing up to 3,000 deaths directly or indirectly, Rubin falsely claimed that Trump killed the victims "twice." He didn't kill any of the victims — most died due to Puerto Rico's decades of neglect of its infrastructure. That neglect resulted in impassable roads that made it hard for seniors to get to a pharmacy to access life-saving medications and led to the failure of its electrical grid, which adversely affected homes and hospitals alike. As NPR noted, Puerto Rico's weak infrastructure (which Trump had nothing to do with) also created major obstacles to relief efforts.
Rubin is not conservative, or even "center-right." She focuses on bashing both moderate and conservative Republicans, such as calling House Speaker Paul Ryan a "disgraced toady." She has attacked Donald Trump for doing conservative things and also bashes never-trump Republicans such as John Kasich for not being liberal enough. She opposes repealing Obamacare and DACA, denounced GOP proposals to cut welfare spending, and celebrated the passage of a Congressional spending deal that increased the budget deficit to over $1 trillion.
Rubin supported liberal John Kerry for President in 2004, and backed Democrats like Mark Warner and Terry McAuliffe in Virginia over their GOP rivals. In June 2017, she attacked Attorney General Jeff Sessions for ending the corrupt Obama-era practice of funneling money from federal settlements to politically-connected left-wing groups.
Rubin denounces Republicans and evangelicals, "claiming that Republicans and evangelicals think they're victims and remain unmoved by real discrimination." In 2016, she called on people to "root for" Hillary Clinton. On September 9, 2016, she ridiculously claimed that Clinton was a "victim" of former Secretary of State Colin Powell because he did not come to her defense during her email scandal. In 2017, she called the Trump administration's budget "monstrous" because of its spending cuts.
She condemned senators who have sought to repeal Obamacare, or even sought to make it less burdensome or costly. On July 18, 2017, she wrote that "it would be cruel and unwise to pull the plug on the Affordable Care Act." Later, she attacked Senator Bill Cassidy (R-La.), who proposed legislation to soften Obamacare and return some decision-making about healthcare to the local level, for supposedly violating the "Jimmy Kimmel" test. (Kimmel is a liberal entertainer). On August 2, 2017, she attacked moderate Republican Senator Dean Heller of Nevada for voting for a "'skinny' repeal" of Obamacare, considering even that partial repeal of Obamacare too much to bear.
Thus, the Washington Post's description of Rubin as a "conservative" is false advertising as is her claim to have a "conservative perspective." Prominent conservative leaders recently pointed that out to The Post in a letter to its management. Yet, the inaccurate labeling persists.
Indeed, the very title of her blog ("Right Turn") is misleading. Yet her column is labeled as a "conservative perspective" or "center-right perspective" in newspapers around America, such as the Twin Cities Pioneer-Press, the Hartford Courant, and the Greensboro News & Record. This mislabeling persists even in the face of letters from readers accurately noting that she is "no conservative." When she appears on liberal MSNBC to agree with other liberals that Republicans are evil, she is inaccurately introduced as a "Washington Post conservative columnist."
Posted in: Law and Government, MediaTagged: conservatives, liberal bias, Media bias, sexual misconduct
Jerome Woehrle
Jerome Woehrle is a retired attorney and author, who writes about politics.
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