Head
Strong | Penn State athlete accused of rape: Part of pattern?
October
28, 2007
By
Michael Smerconish
Internet access and five
minutes were all I needed to conclude that the rape case filed against
Pennsylvania State University running back Austin Scott in Centre County should
never have been brought and will ultimately fail.
Why? Because of facts
publicly available about a trial three years ago, when the same
"victim" couldn't convince a Northampton County jury she was raped by
a different man.
Tyra Braden's reporting in
the Morning Call of Allentown presents the following picture:
Scott's accuser said she was
raped in October 2003 by a fellow student at Moravian College named Christopher
Burgan. The woman, then a first-year student, claimed she met Burgan at a
fraternity party and accompanied him to a second party. Both were drinking. She
later said that while she couldn't recall everything, she did remember
"the major stuff."
A graduate student present
at that second party testified that the two were acting like "boyfriend
and girlfriend." This student also testified that he twice saw the woman
show her breasts: "She did flash everybody in the room," he said.
The accuser testified that
she and Burgan returned to his dorm room, where they had consensual sex in the
top bunk - a fact the woman failed to mention in her initial report to police.
Burgan's roommate, who was in the bottom bunk sleeping, was awakened by their
sexual activity. He told the jury he heard "a lot of giggling" coming
from above.
She said she was raped
(assaulted three to five times) after the roommate left. She said she told
Burgan no, although she never yelled for help. He denied raping her, adding
that she kissed him when she left the next morning.
Burgan faced 10 charges,
including rape. He was acquitted on seven of the 10, including rape. The jury
deadlocked on three other sex-related charges, on which the judge ruled a
mistrial, and prosecutors refused to retry Burgan.
The current allegations
against Austin Scott in Centre County are similar insofar as they occurred on a
college campus among acquaintances, involved booze, and now amount to a
he-said/she-said dispute. She claims she went drinking with a friend, and then
text-messaged Scott from a bar. He agreed to meet her there. They left together
and went to his place, where they went to his bedroom. She said she thought
they were going to "talk and watch TV." She claims she then fell
asleep and upon awakening was raped. He proclaims his innocence.
As a lawyer, I have to say
it's doubtful the jury in Centre County will learn about what was alleged in
Northampton County. The first trial is nevertheless suggestive, and it raises
the question of why a woman - one who had initiated previous rape charges
against another man - would put herself in a similarly compromising situation
only three years after a jury disbelieved her in the first case.
I asked Northampton County
District Attorney John Morganelli whether, hypothetically, an unproven
allegation should give pause to a prosecutor evaluating a second complaint.
"It absolutely
would," he told me, before speaking directly about the current case.
"I think it's a hard
case. I was surprised to read in the paper that the assistant D.A. out there
said they knew about this and proceeded so quickly. Now, they may have other
evidence that you and I are not aware of, so we'll have to wait."
Maybe there is more to it.
But in the aftermath of former Durham County D.A. Mike Nifong's flameout in the
notorious Duke University rape case, you'd think prosecutors would be loath to
move so swiftly (the alleged incident is claimed to have taken place Oct. 5).
It's not just Duke. There
was the La Salle basketball case in 2004. And the Kobe Bryant case, which
imploded when semen was found in the "victim's" underwear that
belonged to someone other than Bryant. I see a pattern in which high-profile
jocks get thrown under the bus, forever associated with the word rape in Internet searches regardless of the ultimate
disposition of their cases.
The media share the
culpability. The reportage of sexual-assault cases stands in contradiction to
our fundamental presumption of innocence. The media are often hesitant to
presume innocence - but in cases of a sexual nature, it's thrown right out the
window, and male defendants are presumed to be Neanderthals and guilty.
In the Penn State/Austin
Scott case, we have one woman who has now accused two different men of rape.
The lives of both Penn State's Scott and Moravian's Burgan are shattered by the
charges alone. Their names are forever public record, accessible to anyone with
a keyboard.
But the accuser's name is
unknown as a matter of policy (not law), even in the earlier Moravian College
case, in which a jury did not accept her allegations. A true presumption of
innocence would necessitate that her name be published, because after all, we are presuming the
accused man did not do it.
At Duke, the identity of the
woman wasn't printed for a year. Even when North Carolina Attorney General Roy
Cooper proclaimed Dave Evans, Collin Finnerty and Reade Seligmann innocent,
accuser Crystal Gail Mangum was not prosecuted. If the men were indeed innocent
- a word far more exculpatory than not guilty - it's hard to avoid the conclusion that the jury
thought Mangum lied. Still, she remained largely anonymous and was not
prosecuted for making false charges.
Like the vindicated Duke
lacrosse players, Austin Scott has the right to retain competent counsel. His
attorney, lawyer John Karoly, has a reputation for being a tough litigator. But
not all defendants get that quality of representation. And while an Internet
search engine's results can sting, they don't compare to the slamming of a jail
cell door.
Michael Smerconish's column appears on Thursdays in The
Daily News and on Sundays in Currents. Michael can be heard from 5:30 to 9 a.m.
weekdays on "The Big Talker," WPHT-AM (1210). Contact him via the Web
at http://www.mastalk.com.