Fault Lines
23 June 2017

Wrong Lessons From The Brownsville Five Rape Case

Mar. 3, 2016 (Mimesis Law) — Last week, Brooklyn District Attorney Kenneth Thompson stepped into the fray and the spotlight once again to announce that he and his office would be righting yet another wrong. The widely publicized charges against five Brownsville teens accused of brandishing a gun to scare off the father of an 18- year-old woman before gang raping her on a public playground were dismissed.

Thompson spoke to the press about his difficult decision to drop a case with such heinous allegations.

In today’s statement, Mr. Thompson said the woman and her father had “provided multiple inconsistent accounts” to police—that there was no gun and they were in fact engaged in sexual conduct.

The truth that has finally seemed to surface is this. The woman and her biological father were having sex on a playground bench when the five teens approached.  Either by invitation or suggestion, some of these boys then engaged in sexual intercourse with the woman.  If you are at a loss for words, allow the DA to help you out.

“That night, this young woman’s father and the five young men engaged in conduct that was reprehensible and wrong, but because of the lack of reliable evidence, criminal charges simply cannot be sustained,” Mr. Thompson said.

For many people, this was a story that peeled off yet another layer of our ever-diminishing faith in humanity. Although troubling, events like this remind us that there is an important legal distinction between disturbing conduct and criminal conduct. Although Thompson did not allow the questions that were swirling around this prosecution from the very beginning to keep his assistant DA’s from asking for half a million dollars bail at arraignment, he undoubtedly made the right call by walking away from this trash-can fire of a case.

But across the river, in City Hall, one of Brooklyn’s City Councilors has a much different opinion on the matter. Laurie A. Cumbo represents New York City’s 35th District in Brooklyn, including Prospect Heights, Crown Heights and Clinton Hill (where this writer happens to live).

Cumbo penned an op-ed attacking Thompson’s decision to dismiss all charges against the Brownsville Five. She lamented that following the dismissal, “somehow [she] did not feel relieved that all was now right with the world.” This sentiment is understandable in a story that seemingly contains nothing but anti-heroes, victims and a variety of perverse sexual acts.

But Cumbo had no intention of praising the District Attorney’s proper legal decision while simultaneously faulting a decaying culture that is partially responsible for this scene from a Greek tragedy playing out in real life on a Brooklyn playground bench. No, Cumbo went in a very different direction.

Decisions from cases such as this often set precedent. What is so dangerous about this precedent is that it involved both an intimate partner and stranger rape investigation simultaneously, and it now sets a new standard for what is permissible in both circumstances; and has unearthed the meaning of consent.

To be clear, the District Attorney has not claimed that the woman in this case did consent. He has rightly stated that the fact that she has now said she gave consent, whether true or false, makes it impossible for his office to continue the prosecutions.

But Cumbo’s notion that this supremely unique case will somehow set a new precedent for the doctrine of consent is absurd. Her surface examination of this case, as opposed to the hours spent by prosecutors, police and defense attorneys, has led her to the conclusion that, regardless of what the woman has claimed, she could not have consented.

In the case of robbery, when someone is approached by five young men that want to take your property, you can either choose to give up your property willingly or you can choose to fight back. Similarly, in the case of rape, five strangers approaching you for sex forces you to make a choice to either fight back or to cooperate. Cooperating in the case of rape is often interpreted as consent while cooperating in the case of robbery is still seen as robbery.

Consent defenses in rape cases are incredibly complicated and complex. The criminal justice system has shown that it is ill-equipped to properly deal with allegations of sex crimes, often failing to protect the accused and victim alike. However, Cumbo’s attempted legal analogy fails on every level in that it conflates a legal request with assumed coercion. To borrow from every snide commenter on the internet, “That’s not how it works; that’s not how any of this works.”

Cumbo also missed the one silver lining in all of this, the fact that a racist criminal justice system actually decided to dismiss charges against five young black men who, while no angels, are certainly not legally guilty of rape.

The dismissal of all charges also desensitizes a Black community, and lowers their standards of acceptable behavior. The alleged incestuous relationship of an eighteen-year-old girl with her father has now been given the green light. Two boys allegedly having sex in a public park with an eighteen-year-old girl while three other boys watched, laughed and videotaped has now been given a green light.

If cultural lines of morality are drawn by the decisions that come out of our criminal courthouses, then we are already doomed. Our criminal justice system delineates between legal and illegal conduct, not between virtuous and immoral. The only “green light” is the one that tells prosecutors that when the evidence is not there, they should dismiss a case.

But again, Cumbo sees truth where she wants, both in this case and its aftermath.

Women who are inebriated will have a more difficult time making the case that they were raped. According the Rape Abuse and Incest National Network (RAINN), the nation’s largest anti-sexual assault organization, “98 percent of rapists will never spend a day in prison.”

Again, the Brownsville Five case will set no such precedent. The Brooklyn District Attorney’s Office can be accused of many things, but soft-pedaling sex crime prosecutions is not one of them. The complex nature of how intoxication plays into consent is a valid topic for discussion. However, that discussion should be unencumbered by nonsensical statistics.

But Cumbo wants to do much more than discuss these issues. She wants to change the law.

This case clearly outlines the need for stronger legislation to protect the interests of women as it pertains to sexual assault.

Exactly what legislation would Cumbo propose? Should we start treating rape like DWI/DUI, and once a person’s BAC hits .08%, she can neither drive nor consent? Perhaps a law that states that regardless of the facts and circumstances, consent cannot be legally given to engage in sexual acts when five or more males are present.

Generic demands for generic legislation do nothing to address valid concerns regarding the prosecution of sex crimes. The further we move away from determining consent on a case-by-case basis, the more we leave the door open for injustice.

At the end of her op-ed, Cumbo turns her attention to Thompson himself, and decides to go for the jugular.

In a statement released by DA Thompson, he stated, “That night, this young woman’s father and the five young men engaged in conduct that was reprehensible and wrong.” […] However, DA Ken Thompson’s statement causes great internal conflict for me because consensual sex is neither reprehensible nor wrong. So the question still remains, was it wrong or was it consensual?

Even with the incessant criminalization of almost every facet of human life, there are still some things out there that are both wrong and legal. Reasonable people would agree that teenagers having group sex in a public playground with a complete stranger is wrong. However, if consent is given, it is also legal. Cumbo, in trying to hit Thompson with a rhetorical ‘gotcha’ question, exposed her failure to recognize a criminal justice system that needs to strengthen protections for the accused, not weaken them.

Debauchery can and will occur in a free society. All the teenagers involved in the Brownsville Five case have been failed by family and society, but addressing these failures should only involve the criminal justice system when a crime has been committed.

Unfortunately, Councilwoman Cumbo sees nothing but failure in this rare case where the system worked somewhat properly. And the valuable lesson she seems to have missed is that our criminal courts are there to adjudicate legality, not morality.

8 Comments on this post.

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  • DaveL
    3 March 2016 at 9:47 am - Reply

    All I know is, if anybody ever asks me to explain the difference between gang-bang and a clusterf**k, I’m going to point them to this case.

  • Noel Erinjeri
    3 March 2016 at 10:32 am - Reply

    How crazy is it that a .08 standard is actually a better idea than trying to sort out the moving target of post-hoc withdrawal of consent? One imagines Datamasters in every dorm room hallway, complete with civil penalties for refusing to blow before…blowing.

  • Ken Womble
    3 March 2016 at 10:33 am - Reply

    This case would be the dead center of that Venn diagram.

  • Scott Jacobs
    3 March 2016 at 10:44 am - Reply

    Reasonable people would agree that teenagers having group sex in a public playground with a complete stranger is wrong. However, if consent is given, it is also legal.

    Well, not ENTIRELY legal. I mean, it probably violates a statute somewhere to get your bone on in public… 😉

    Were any of the boys under-age? Would the Councilwoman prefer it if the woman herself was charged with statutory rape?

    I mean, we gotta think of the children, right?

    • Ken Womble
      3 March 2016 at 11:31 am - Reply

      Oh yeah, definitely guilty of public lewdness.

      I do think that one of the boys was 15, but it is unclear whether the woman had sex with him or if he was just present.

      However, what about the incest. Having sex with your biological father is a crime in New York, not only for the father, but if both are adults (which they were), then for the daughter as well.

      Again, I repeat, trash can fire of a case.

      • Scott Jacobs
        3 March 2016 at 1:52 pm - Reply

        Ignoring all the other inconsistencies of the statements, when you can’t put your complaining witness on the stand because the defense will bring up that she was FUCKING HER OWN FATHER, you need to not only drop the charges, but also set fire to everything that the case touched…

  • Another Rape Accusation. Another Gang of Five | Simple Justice
    4 March 2016 at 8:25 am - Reply

    […] So let’s do it again.  This time, it was five young black men in Brownsville.  The story broke about how they raped an 18-year-old women at gunpoint at Osborne Playground. Fires were stoked. Cries were heard to burn them at the stake.  Except this time, the investigation revealed that the evidence showed the “victim” to be incredible, her father to be an disgusting animal and the allegations to be false. […]

  • David M.
    9 March 2016 at 8:02 pm - Reply

    I disagree with Ms. Cumbo’s major premise, But it’s clear she knows her Aristotle.