Should ‘Girls’ Star Lena Dunham Be Prosecuted?

In Lena Dunham’s best-selling memoir Not That Kind of Girl: A Young Woman Tells You What She’s “Learned” (affiliate link), she devotes a chapter to her experience of being sexually assaulted as a 19-year-old Oberlin College undergraduate. Dunham describes her encounter with “Barry,” a “mustachioed campus Republican” whom she meets at a party while drunk and high on Xanax and cocaine. Only years later, when pitching a version of the story to her co-writers on the HBO hit Girls does Dunham recognize that what she experienced with Barry was, in fact, rape.

But even if the conduct in Dunham’s story counts as rape, “in fact” may be the wrong way to describe it. When journalists have tried to track down Dunham’s rapist by following the trail of bread-crumb details she leaves in her book, they’ve gotten nowhere. She shares plenty of specifics. Though Dunham alerts her readers when she uses pseudonyms elsewhere in her book, she refers to her alleged rapist by a distinctive first name and gives no warning that it is false. In an early chapter of the book, she describes her assailant as “our campus’s resident conservative.” (At notoriously liberal Oberlin, there’s probably little competition for that title. It’s not George Mason we’re talking about.) She offers details about the season and year when the alleged rape took place, as well as her age and her alleged rapist’s. She paints a vivid picture of the man: wearing “purple cowboy boots” and sporting a “mustache that rode the line between ironic Williamsburg fashion and big buck hunter.” He hosts a radio show called Real Talk with Jimbo and speaks in a voice “that went Barry White low.” He shelves books at the Oberlin library. Notably, Dunham tells her readers that Barry had also victimized other women on campus.

Yet, when journalists like John Nolte investigated, Lena Dunham’s story has not panned out. There was, indeed, a Oberlin Republican named Barry on campus at the same time as Dunham. But the surrounding facts don’t match. The dates are wrong. The physical description is wrong. When Nolte tried to follow up with the campus radio station to see if Real Talk with Jimbo ever existed, the uncooperative station manager replied, “Asking whether or not a victim is telling the truth is irrelevant.”

We also know that, if her rape narrative was an intentional pastiche of made-up details with a truth-y core or a rhetorical device, Dunham subsequently declined to clarify her story. The actual Oberlin graduate named Barry is pleading with Dunham through her representatives to state publicly that, despite a few superficial but easily Google-able similarities, he is not her alleged rapist. When given other opportunities to retool her tale as an expressionistic fiction or to substantiate her claim, Dunham instead doubled down on third wave feminist aggro. She responded via Twitter:

Some men are enraged by stories of sexual assault that don’t have clear cut villains, pimps or men with guns…

— Lena Dunham (@lenadunham) October 18, 2014

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That’s because these stories force them to ask hard questions about their history with consent…

— Lena Dunham (@lenadunham) October 18, 2014

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Well, we all have to ask hard questions. Grow the fuck up.

— Lena Dunham (@lenadunham) October 18, 2014

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And I have some news for certain “news” outlets. No matter how much you thump your keyboards with your meat hands we will not stop talking.

— Lena Dunham (@lenadunham) October 18, 2014

Asking most alleged rape victims to satisfy public curiosity would be insensitive and unreasonably intrusive. After all, most accusers are true victims of a violent, dehumanizing crime, who report the offense to law enforcement authorities. Those individuals should not be required to answer investigative journalists’ questions, on pain of public pillorying. But Lena Dunham volunteered to share her story with the public. She memorialized her rape claim in a mass-market book. She volunteered carnal details about the assault. She volunteered a description of the perpetrator’s appearance, graduation class, on-campus job, first name, and — let’s not forget — political affiliation. She gave this information to the press and the public. She sold this information to anyone willing to pay for a hardcover copy of her memoir or for tickets to her book tour appearances.

She is also more culpable when she refuses to address reasonable questions about her story’s veracity. Dunham has an audience. If she wanted to explain, she wouldn’t have to work hard to get people to listen. Also, her misleading narrative remains in public view for the foreseeable future, continuing to mislead future readers until corrected.

She can’t shield her story from scrutiny with an insistence on her privacy. Neither can she do so by cleverly shifting to the pronoun “we” in her responses to suggest that she represents the collective of rape survivors, as though confronting her on specific inconsistencies in her story equates to attacking all women who have been sexually assaulted. She simply does not get to introduce an allegation of a very specific, very heinous crime, then only answer the questions she wants.

Alleging sexual assault, particularly against an identified or identifiable alleged perpetrator, is not a mic drop moment. Rape accusations should be taken seriously by investigators, but the accuser doesn’t get to lay down her dramatic version of events, then walk off the stage.

Of course, while Lena Dunham’s rape story is still simmering, Rolling Stone announced that its recent story on campus rape culture included an unreliable account by a woman named Jackie claiming to have been gang raped at a University of Virginia frat house. The author and editors trusted her. However, as the magazine noted last week to its readers, “In the face of new information reported by the Washington Post and other news outlets, there now appear to be discrepancies in Jackie’s account.”

Popular media sources, and perhaps the popular culture they feed, seem to have difficulty doubting rape accusations. Even after debacles such as the Duke Lacrosse and Tawana Brawley cases, many writers, publishers, and editors seem more inclined to glom onto a sensational story of female sexual victimization than to check out the facts. Perhaps this tendency is unsurprising when commentators like Zerlina Maxwell insist that “We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.” (Note that though Maxwell’s article is titled “ No Matter What Jackie Said We Should Generally Believe Rape Claims,” though the URL uses “automatically” instead of “generally,” perhaps indicating an earlier, less-tempered draft of the piece.) Dunham’s case may be a signal of a broader, dangerous trend.

In fact, there is nothing inconsistent about encouraging rape victims to report their assaults to authorities while also raising penalties for women whose reports are later shown to be demonstrably false. There is nothing insensitive about asking women who use the media to spread their accusations to also respond to media inquiry. Other countries, most notably the UK, pursue criminal sanctions against the most wanton false accusers. Given the harms suffered by falsely accused men, and given the trend toward uncritically accepting the claims of women, a similar move in the U.S. may be necessary. Lena Dunham’s “Barry” may be vindicated through a civil defamation suit, but what about other men whose false accusers are not celebrities capable of paying high-dollar judgments?

UPDATE (6 p.m.): Dunham’s publisher, Random House, has issued this statement (via Instapundit):

As indicated on the copyright page of ‘Not That Kind of Girl’ by Lena Dunham, some names and identifying details in the book have been changed. The name ‘Barry’ referenced in the book is a pseudonym. Random House, on our own behalf and on behalf of our author, regrets the confusion that has led attorney Aaron Minc to post on GoFundMe on behalf of his client, whose first name is Barry.

Apparently, there actually is some amount of “keyboard-thumping” that will get Lena Dunham to stop talking. “Meat hands” at news outlets across the internet are applauding this afternoon.

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Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].