Nifong and HRES 590

By David Heleniak

The Nifonging of the three lacrosse players from Duke University did not rise out of a vacuum. Rather, it was the product of two systemic problems in America, the tendency amongst many prosecutors and judges to replace the concern for justice with the concern for self-promotion and career advancement, and, in cases of certain politically charged crimes, anti-male bias.

Illustrative of the bias, on September 25, 2007, the U.S. House of Representatives passed a resolution on domestic violence, HRES 590, that stereotypes men as wife-beaters. A thorough analysis of the resolution by RADAR (Respecting Accuracy in Domestic Abuse Reporting) found that 18 of its 23 statements are either misleading or simply wrong. Two in particular unfairly smear fathers:

• "Whereas 40 to 60 percent of men who abuse women also abuse children."
• "Whereas according to one study, during court ordered visitation, five percent of abusive fathers threaten to kill their spouses, 34 percent of abusive fathers threaten to kidnap their children, and 25 percent of abusive fathers threaten to physically hurt their children."

With the passage of HRES 590, savvy prosecutors and judges will clearly perceive the political winds as blowing against men, as they have been for some time.

In the April 24, 1995 issue of the New Jersey Law Journal, a judicial training program on domestic violence caught on tape was recounted. The program openly encouraged judges to ignore constitutional considerations in granting temporary restraining orders. “Your job is not to become concerned about all the constitutional rights of the man that you’re violating as you grant a restraining order,” they were advised. “Throw him out on the street, give him the clothes on his back, and tell him, ‘See ya’ around.’” Attendees were given additional advice: “If you’ve got any hint whatsoever there’s a problem, sign the TRO. Don’t take the chance;” “Quite frankly, the standard really is by a preponderance of credible evidence. That’s what the law is. But what he’s saying to ya, ‘Don’t make that mistake at three o’clock in the morning.’ You may be a little tired. Err on the side of being cautious;” and “So don’t get callous about the fact that these people are pestering you again. You know, grant the restraining order. It’ll be the one time that you don’t grant the restraining order that you’ll be tomorrow’s headlines.”

Similarly, in “Criminal Law Comes Home,” Harvard Law School professor Jeannie Suk reveals that in Manhattan, the vast majority of “domestic violence” cases do not involve serious physical injury, and many do not involve any physical injury. But “[e]ven as the ‘violence’ of DV has been defined down,” to the point where harassment is considered violent, these cases “trigger application of a ‘mandatory domestic violence protocol’ different from other crimes.” As Suk explains, “[t]he uniform application of a mandatory protocol in every case represents the prosecutorial response to a paradigm story in which DV victims can turn into murder victims overnight. In the oral culture of a prosecutor’s office, a misdemeanor DV defendant has the potential to turn out to be an O.J. Simpson.” Indeed, reminiscent of the warnings given to the New Jersey judges, “[r]ookie prosecutors are warned that their DV misdemeanors are the cases that could get their names in the newspaper for failure to prevent something serious.” Consequently, “every case is treated as a potential prelude to murder.”

In light of the legal culture that has developed around the issue of domestic violence, it is no wonder that rape cases are sometimes prosecuted despite the absence of good evidence to support them. The actions of DA Nifong in the Duke rape case should not be viewed as the actions of a “rogue prosecutor,” but as a predictable result of years of prosecutors being encouraged to zealously prosecute crimes involving women, and of judges and prosecutors being discouraged to respect the due process rights of men. What makes the Duke case unique is defendants with the resources to vigorously and successfully defend themselves. Can anyone doubt that there are innocent men in prison right now who simply did not have the ability to oppose a rush to judgment?

Legislatures must tell the executive and judicial branches that Nifonging is unacceptable. Repealing HRES 590 would be a good start.