The never-ending controversy over Peyton Manning’s backside has several uncomfortable tensions at work: factual uncertainty, failed accountability and the urge to seek a correction now for something 20 years ago. But all of it amounts to a supercharged distraction from the real question: Why aren’t we talking about current events at Tennessee instead of a murky one 20 years ago?
We need to be talking about a newly filed sworn affidavit from former Volunteers wide receiver Drae Bowles, who says that Coach Butch Jones told him he “betrayed the team” for helping a woman who said she was raped by two other team members.
Manning is an aside, a one-paragraph mention in a 87-page Title IX lawsuit against Tennessee, alleging that the school’s present environment is so hostile to women that it led to seven mishandled cases of rapes by athletes between 2013 and 2015. We also should be talking about why such suits have become the popular forums for adjudicating campus sexual assault cases.
On Tuesday, Tennessee moved to strike Manning’s name from the suit , saying it’s “immaterial” and “doesn’t involve the plaintiffs.” Lawyers for the women who filed suit should concede the point. It doesn’t strengthen the case and may even hurt their chances of courtroom success. Including Manning was a serious miscalculation — for two reasons. From a practical standpoint, it has us fixated on two decades ago while ignoring the current rape allegations. From a legal standpoint, it invites real trouble.
It’s not a winning strategy to frame an enigmatic 1996 episode as an example of outright “sexual assault” pertinent to an alleged current rape culture at Tennessee. Years of litigation between Manning and Jamie Naughright have not resulted in clarity, and we are not going to crack the case now. All that’s certain is that Manning committed at least an indefensibly crude act when he dropped his pants while being examined by Naughright.
But it’s also possible he was subject of an inflated accusation. It’s never a comfortable thing to examine the credibility of a sexual assault complainant, but if lawyers are going to insist on invoking the Manning-Naughright dispute in a rape case, it’s also necessary. There is no question that Naughright was a highly credentialed and talented professional trainer. And it’s a powerful detail that after the encounter with Manning she called a crisis hotline and said she “feared for her life.” But there is also evidence that in the years since then, she has made false accusations.
Two 2014 incident reports from the sheriff’s office in Polk County, Fla., where Naughright has a home, describe numerous instances in which she has called police with complaints they concluded were exaggerated or false.
Officers responded to a series of emergency calls from Naughright between March and November 2014 in which she claimed to be threatened by various parties. In one instance she said she “feared for her life” from a male houseguest. In another she was being “harassed” by her former caretaker who she feared “was going to break her neck” and who she alleged had launched a porn site using her name (officers found no evidence of it). She alleged a domestic battery incident that officers concluded did not occur. She alleged she was an informant in a federal criminal investigation in New Jersey, where she is originally from.
One of the incident reports concludes with a note that another law enforcement agency in New Jersey contacted the Polk County Sheriff’s office and relayed similar experiences with Naughright. The New Jersey agency requested that Naughright be instructed “to stop calling their agency and making false accusations.”
None of this means Naughright didn’t experience sexual harassment in 1996. But it does mean she is not an ideal witness in 2016, though it’s not politically correct to say so.
The Tennessee lawsuit is a critical one, too important to saddle with the Manning-Naughright mess. Anyone who has followed the athlete-sexual-assault cases at Florida State, Tennessee, Notre Dame or Baylor is sick to death of reports of college administrations sheltering athletes from consequences, using in-house “fixers” to dispose of accusations and generally interfering with due process. Whether the Tennessee plaintiffs win or lose, they at least have put every NCAA school on notice that female students have found a weighty new legal tool with which to fight coverups.
But the case also is worth watching because it contains a larger and vital question about whether a Title IX lawsuit is the long-term solution for obtaining justice in campus sexual assault cases. The Obama administration believes so; the Education Department’s Office for Civil Rights is investigating 124 universities for possible Title IX violations in how they handled reports of assaults against women. But is government pressure on campus administrations to become more active in these cases really the right thing?
Emily Yoffe at Slate argues we are in the midst of an “overcorrection” and actually need fewer attempts at cloistered “university justice” and more pure law enforcement. “Rather than creating a separate [and unfair] system of justice, we should ensure the safety of college students the same way we ensure the safety of those who aren’t in college,” she writes.
Hoover Institute Fellow Peter Berkowitz reaches the same conclusion from another angle. “Our universities have dismantled due process to serve what they regard as a higher conception of social justice” for young women, he contends. Which can lead to botched investigations and unfair backlash, as we learned from the Duke lacrosse case in 2006 and Rolling Stone’s discredited story of a fraternity gang rape at Virginia. Berkowitz believes campus officials are simply the wrong people to handle these cases. They don’t have the wherewithal, and their motivation is often to insulate themselves from liability, not to determine what likely happened.
But it’s not a perfect solution to strip their power to punish and leave it strictly to police and prosecutors, with the burden of criminal proof. All sexual assault claims are difficult, and those involving athletes can be especially charged and fraught with dispute, a tendency to alternately protect and overcorrect. That’s at least one reason to ensure overzealous athletic staff stay out of them.
Yet to say that the strict legal system is the only avenue might leave victims living on campus with attackers, without a important avenue to redress. The Tennessee case is a needed experiment in trying to achieve some legal clarity — the kind it would have been useful to have on Manning.
For more by Sally Jenkins, visit washingtonpost.com/jenkins.