God Bless Jane Doe! And woe to the men who say rape victims are liars.
The Damage Done by a ‘Lucky Guy’
By MARTIN GARBUS
I WENT last week to see “Lucky Guy,” the new play by Nora Ephron about the journalist Mike McAlary, in previews. The decision to cast Tom Hanks in the lead role was brilliant. Mr. Hanks cannot be anything but endearing, almost cuddly, even though the man he is portraying was complicated and deeply flawed.
The second act of “Lucky Guy,” which opened Monday on Broadway, describes a low point in McAlary’s career, when he falsely accused a rape victim of perpetrating a hoax, and was then sued for libel.
For all her artistic gifts, Ephron, who died last June, does not tell us anything about Jane Doe, the rape victim. The victim, whom I represented in the libel suit and spoke with again this week, was devastated by McAlary’s work. “I have had the misfortune of being raped twice — once in the park and again in the media,” she said shortly after the attack.
A child of a schoolteacher and city planner from Ohio, she’d gone to Yale, where she majored in African-American studies and helped organize protests calling for university divestment from apartheid South Africa. She was 27 and pursuing an acting career in New York — she had appeared recently in an Ibsen play — when, on the afternoon of April 26, 1994, her world changed forever. As she walked in Prospect Park after a grocery run, she heard a man’s voice behind her and turned around. He grabbed her around the neck in a chokehold. He forced her up a hill and raped her. He ordered her not to look back until he’d left.
She immediately reported the assault, flagging down a police cruiser in the park.
Two days later, on April 28, a story by McAlary ran in The Daily News under the headline “Rape Hoax the Real Crime.” The article instantly conjured memories of the sensational, racially charged case of Tawana Brawley, a black teenager who, in 1987, falsely accused a gang of white men of raping her. (Jane Doe is African-American, and described her assailant as black. He was never caught.)
In the ensuing uproar, Police Commissioner William J. Bratton apologized for police leaks that had cast doubt on the woman’s account, which was backed up by undisputed medical evidence, including severe bruising. Undeterred, McAlary, stubbornly recycling a good story — a copycat rape hoax made for a better story than the horror of a real rape — proceeded to write two more columns, under the headlines “No Easy Task Exploring a Lie” and “I’m Right, but That’s No Reason to Cheer,” insisting Jane Doe was a liar. This falsehood was spread far and wide as other news media picked up on the controversy. While McAlary did not reveal her name in print, he did out her as a lesbian to bolster his case. After all, the only person less trustworthy than an African-American woman was an African-American lesbian woman.
“I sealed my mind off, as if it happened in a dream,” Jane Doe told me at the time. “I wanted the media to go away. I did not understand the back and forth between the police and McAlary. I thought it would end.”
A longtime First Amendment lawyer, I took on Jane Doe’s case and found myself suing the press, for one of the only times in my career. During our deposition of McAlary, he admitted that he never once contacted Jane Doe or any witness to the crime. He also admitted that — despite describing in detail the location of the rape in one of his articles, to argue why it was impossible for Jane Doe to have been raped and not seen by nearby joggers — he never went to the rape site. He also admitted that he never read the police, lab and hospital reports whose findings he incorrectly described.
As McAlary was writing his columns, several of his colleagues warned their editors that some of their police contacts were disputing the accuracy of his accounts. During the weeks after McAlary’s articles, about 30 members of the Daily News staff gave the newspaper’s editors a petition labeling the columns “a disgrace” and demanding that the paper apologize to Jane Doe and to “all of our readers.” It did not happen. In fact, McAlary bragged about his courage in sticking to his story.
In fairness to McAlary, evidence emerged during the depositions that he’d been misled by police sources who initially disbelieved the victim’s account, including a high-ranking commander who inappropriately and incorrectly described the results of a lab test. But McAlary was inflexible as more facts emerged, and his editors were clearly negligent in not asking him tough questions about his sources, their reliability and their motives.
Though my experiences were nothing like Jane Doe’s, I lost a lot of business by taking on the case, which my colleagues likened to blasphemy. The New Yorker quoted the First Amendment lawyer Floyd Abrams comparing me to former prosecutors who switch sides to represent drug defendants. Robert D. Sack, who represented The Wall Street Journal, was quoted as saying that “switching sides is close to apostasy.” Other journalists, including Anthony Lewis of The New York Times (who died last week) and Nat Hentoff of The Village Voice, disagreed. “To pillory a woman with anonymous sources — it was so disgusting that I’m with Garbus all the way,” Mr. Hentoff said.
On Feb. 6, 1997, a trial judge dismissed the case on a pretrial motion. He said that because McAlary was initially misinformed by his sources, he was entitled to First Amendment protection.
When I first learned the name of the judge assigned to the case, I told Jane Doe that I suspected we would lose the trial but would win on appeal. She said she was ready for that. She was a fighter. But over nearly three years, I watched this vibrant, spunky woman fall apart. One of the saddest days of my professional life was when the decision came down. I immediately wanted to appeal. She looked at me and said, quietly: “No. I can’t do it anymore.” She looked to me like someone who had died inside.
McAlary celebrated the decision. “It cost me a lot of credibility to tell the truth and not divulge my sources,” he said. “These guys accused me of fabricating the story and lo and behold, McAlary did not fabricate anything.” But he had.
I spoke to Jane Doe this week, to let her know that I was writing this essay. She is in her 40s, living in New Jersey, with two children. We had not stayed in touch over the years.
I believe McAlary damaged her more than the rapist did. To Ephron’s credit, her play does not overlook this episode. In a recent essay, her son Jacob Bernstein called McAlary’s columns about the case “a career-killing mistake,” one that may have been exacerbated by the effects of a near-fatal car crash the previous year.
Much has been made of Ephron’s depiction of McAlary’s fortitude in the face of cancer — which matched the courage she herself showed in the face of the cancer that killed her, a cancer she kept secret from almost everyone.
I don’t doubt McAlary’s fortitude, but he did not have the courage to recant his false allegations, much less apologize to the young woman whose life he knowingly damaged at the altar of professional hubris and ambition.
It has been suggested that Ephron’s play offers a certain redemption for McAlary — who, shortly before he died of colon cancer, at age 41, won a Pulitzer Prize for exposing the brutalizing of an unarmed Haitian immigrant, Abner Louima, by New York City police officers. It seems most unfortunate that McAlary chose to champion a sodomized man but not a raped woman. And one must reflect on whether one very good deed can undo a very bad one.
We all can revisit Mike McAlary’s life and death on Broadway thanks to Ephron’s play. But who will tell us Jane Doe’s story?
“Lucky Guy” provides entertainment, but not, alas, enlightenment. I can still think only of the unlucky woman behind that lucky man.
Martin Garbus is a trial lawyer and the author, most recently, of “The Next 25 Years: The New Supreme Court and What It Means for Americans.”