Rolling Stone and the challenges of prosecuting via journalism

rolling stone

Two weeks ago, University of Virginia president Teresa A. Sullivan announced that all university fraternities were suspended until January. The decision followed in the wake of an explosive, 9,000-word Rolling Stone article focusing heavily on the plight of Jackie, a university student who, in her freshman year of college, was brutally gang raped by a group of fraternity brothers. The piece was sharply critical of the university’s sclerotic and protective approach to such reports, alleging that it was knowingly allowing gang rapists to roam free on campus grounds, and so when Sullivan announced that the university was taking decisive action it seemed that investigative journalism had played its role, which is to hold those in power accountable.

The narrative has swiftly changed in the intervening two weeks, however. As explained by the Washington Post’s Erik Wemple, it emerged that Sabrina Rubin Erdely, the journalist who reported the story, never reached out to the accused rapists for a response, mostly at the behest of Jackie, who requested that Erdely not contact her assailants. In fact, Erdely didn’t even know the main rapist’s last name. Following these revelations, the fraternity in question released a statement that seemed to refute some of the key facts mentioned in the article. One conservative blogger horrifyingly used this as enough evidence to conclude that Jackie fabricated her entire story, and he published a full name and photo of the person he alleged to be Jackie.

Many within the media have been outraged by how Rolling Stone handled the story. Writing for Vox, Libby Nelson argued that the magazine not only failed its readers, but also failed Jackie as well — it placed her firmly in the crosshairs of conservatives who believe reports of campus rape are overblown, fueled in part by women falsely accusing innocent men of rape. “If you are going to expose a traumatized 20-year-old to the judgment of the entire world with a story that many people don’t want to believe is true, you owe it to everyone — to your readers, but especially to her — to make sure it is unimpeachable,” Nelson wrote. “It’s not just damage control for your publication or your personal reputation. It’s to protect the person who trusted you.”

But could all the doubts as to the veracity of Jackie’s story been avoided if Erdely had simply approached the accused? Not necessarily. Ask any investigative journalist what they predict would have happened in such a situation, and they’ll likely guess that the frat brothers would be uncooperative. These alleged rapists most likely would not have sat down for a lengthy interview; rather there would have been a circling of the wagons, the immediate consultation with a lawyer, and perhaps a tersely-worded, written statement categorically denying the allegations. Sitting down with a journalist, who would have selectively chosen which quotes of theirs to use, would have been too risky. Better to wait until the article comes out and, once the cards have been laid on the table, try to nitpick certain facts within the article to discredit the entire story.

There’s this view of investigative journalism that it should not only hold those in power accountable, but also actively investigate criminal activity in cases that haven’t yet been prosecuted by the government. But there are a number innate challenges posed to any journalist who wishes to forge ahead without the aid of police or U.S. attorneys, and often these pitfalls don’t emerge until after the investigative piece has been published.

Journalists simply don’t have the prosecutorial powers afforded to your average detective, prosecutor, or judge, and so they are limited in what information they can unearth. A prosecutor has the ability to issue subpoenas that force involved parties to turn over vital evidence, whether it’s phone records, email transcripts, or text messages. Though someone charged with a crime can’t be compelled to testify due to the Fifth Amendment, a judge can force other witnesses to appear in court and answer questions under threat of perjury.

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In terms of discoverability, a journalist just can’t compete with the resources and access afforded to law enforcement, and that makes any investigation into criminal activity incredibly difficult. Sarah Koenig, the host of Serial, the podcast that re-investigates the 1999 murder of a Baltimore teen and casts doubt on the guilt of the ex-boyfriend convicted for the crime, has run into just this sort of problem. For the uninitiated, the conviction rested almost entirely on the testimony of a man named Jay, and Koenig has been able to poke holes both in Jay’s testimony and other evidence presented by detectives and the prosecution. But when Koenig attempts to question Jay on these discrepancies, he refuses to answer questions on the record, and the police detectives who originally investigated the case also have refused to speak.

So where does that leave Koenig? The same place of any journalist investigating criminal activity outside the legal system. To make up for this handicap, the journalist must then appropriately hedge her wording as to provide reasonable leeway to the accused. But all the hedging in the world cannot save you if facts emerge after the publication of your story that significantly undermine the story’s premise. And that’s why this kind of reporting is so inherently risky.

To be sure,  Erdely should have reached out to the accused, and perhaps if she had they could have provided enough information for her to address any discrepancies between Jackie’s story and the accused’s counternarrative. But the fraternity would have been under no obligation to respond to Erdely’s specific questions, and given the long trail of “no comment”s that have beleaguered investigative journalists in the past, there’s a significant chance they wouldn’t have.

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Simon Owens is a tech and media journalist living in Washington, DC. Follow him on TwitterFacebook, or LinkedIn. Email him at simonowens@gmail.com. For a full bio, go here.