The headline at the Daily Caller:
Gawker Thinks They Found
Lena Dunham’s Alleged Rapist
… And He’s A Democrat
The interesting thing about the Gawker story by J.K. Trotter is that Trotter seems to have the idea that he is vindicating Dunham and discrediting Dunham’s conservative critics. Her published account — which identified a Republican named “Barry” as having raped her — was exposed as fraudulent by John Nolte of Breitbart.com, and Dunham was forced to apologize. Yet, Trotter’s story at Gawker insists that Dunham actually was raped while at Oberlin College:
The 2012 proposal for Not That Kind of Girl recounted the same night of unwanted unprotected sex — and supplied enough specific biographical detail to identify the man being described.
His name is Philip Samuel Ungar, a 2006 graduate of Oberlin. Now 30, he’s the son of former All Things Considered host and retired Goucher College president Sanford J. Ungar. Dunham has never explicitly named him, but his biography closely aligns with her characterization of her alleged rapist—“His father was actually the former host of NPR’s All Things Considered” — in an early draft of the chapter where she describes being assaulted.
Whether or not Philip Ungar is a rapist, he is evidently a liberal Democrat, not a conservative Republican, so if Gawker’s story is correct, this has only further damaged Dunham’s credibility, exposing her as having engaged in a deliberate partisan smear.
There is no such thing as partial credibility. Once a source has proven that they are willing to lie — deliberately and consciously — they lose all credibility, and Dunham has proven herself a liar.
Quod erat demonstrandum.
If Lena Dunham says Philip Ungar is a rapist? This means Philip Ungar is probably a nice guy, even if he is a liberal Democrat.
Defamation is, by definition, an intention tort. Try again.
Are you kidding or just plain stupid.
She lied about the person. Every word for here on should be considered a lie.
“When did conservatives become the thought and feelings police, demanding that people are not allowed to have their own interpretations of their own life experiences?”
The woman is promoted to influence the political zeitgeist. Don’t get all upset at pushback against what amounts to libel of an innocent man.
Lena Dunham is allowed to feel about her own personal experiences in her own life, explained in her own book.
*******************
Key word FEEL.
Still doesn’t change the fact, she lied.
Which rumors? The rumors that Dunham herself fabricated and first spread?
Dunham’s publisher offering to pay the legal fees of “Barry”
*************************
Offered and paying are too different things.
You felt that disturbance in the force too.
Not sure what you were going for there besides petty Internet points. The word “Defamation” wasn’t invented by the U.S. legal system.Defamation is, by definition,
“verb (used with object), defamed, defaming.
1.to attack the good name or reputation of, as by uttering or publishingmaliciously or falsely anything injurious; slander or libel; calumniate:
2.Archaic. to disgrace; bring dishonor upon.
3.Archaic. to accuse.”
How would you describe a drunk driver smashing into a light pole – a light pole assault?
Hiding behind her “unreliable narrator” pillow does not give somebody a free pass to make up stuff and then misidentify people when they market their “narrative” as a “memoir,” i.e. something that is supposed to reflect actual, factual events that occurred. As Eugene Volokh explained:
The book wasn’t a novel; it was a memoir, offered to readers as such. The copyright page, which I suspect few people read, does say that “Some names and identifying details have been changed,” but it certainly doesn’t tell people which ones.
Indeed, early in the book, when she mentions a boyfriend of hers and labels him Jonah, she adds a footnote: “Name changed to protect the truly innocent.” Reasonable readers, it seems to me, reading the rest of the memoir, would assume that “Barry” — whose name wasn’t accompanied with any such footnote — was actually named Barry. Even if not all readers would so conclude, many would, and quite understandably so.
How could Dunham and Random House do this? How could an author and a publisher — again, of a self-described memoir, not a work of fiction — describe a supposed rape by a person, give a (relatively rare) first name and enough identifying details that readers could easily track the person down, and not even mention that “Barry” wasn’t this person’s real name?
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/08/lena-dunhams-publisher-says-her-alleged-rapist-barry-wasnt-actually-named-barry/
Don’t be an idiot. When legal fees are involved, it means there is a potential legalcause of action, in this case “Defamation,” or more precisely “libel” which is defamation in written form. Those are actions “at law,” for which damages are payable. It is an intentional tort and the offer to pay the legal fees of the person defamed is an offer to settle a legal claim.
We’re supposed to assume some convenient truth in between all the misdirection and outright lies that runs in the opposite direction? “Okay I lied about him being a blimp salesmen but the part about him being a John Bircher who burned candles to Nixon before sex is spot on correct cross my heart and hope to molest my sister.”
Dunham’s publisher offering to pay the legal fees of “Barry” may be an admission that he was defamed, but it is absolutely not an admission that it was intentional, which is what matters, isn’t it?
__________________
So your point is that she should be excused because her defamation was merely reckless and not intentional? (However, cf. Amishdude’s post below about the Oberlin Republican club having one of the exceedingly rare “Barrys” on campus, and the one that meets Dunham’s description of his grade status). I’m not quite sure what you’re defending, or why.
“When legal fees are involved, it means there is a potential legal cause of action”
Come on, man. How old are you? You can sue someone over anything. The publisher has a lot more to lose through a protracted legal battle, both in receiving a potential adverse ruling and in a PR nightmare.
Paying a guy’s legal fees of $75,000 who was receiving the short end of the stick throughout this ordeal was not only the right PR move but the right thing to do.
Insinuating that it was also an admission of guilt that this was intentional is childish and makes me hope you don’t run a business, for the sake of your employees, since you have a pretty feeble grasp on how to handle legal affairs.
RE: defamation and legal bills
Defamation is by definition a malicious act:
Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.
http://legal-dictionary.thefreedictionary.com/Defamation
Further, “Barry” apparently told Dunham and her publisher that they HAD defamed him quite early on… and they didn’t clear his name in any way until they began to understand that he could sue them into penury. THEN they offered to pay his bills and (further) alter Dunham’s story. No apology or admission of error has been forthcoming.
I should point out that Eugene Volokh, a law professor, thinks that “Barry” may well have a legal case against Dunham and her publisher for libel. As legal background, this is of particular interest:
[P]eople who know some details about Identifiable Conservative Barry — he was named Barry, he was conservative, he was at Oberlin at the same time Dunham was — whether because they know him personally or because they track him down using those details, would perceive him as the Barry that Dunham was talking about. And the damage to his reputation in those people’s eyes would be sufficient for a libel claim (again, assuming the facts are as Breitbart reports).
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/04/could-barry-sue-lena-dunham-over-her-memoirs/
RE: lying and “telling stories”
Telling a “story” is by definition “lying”. We may, depending on the circumstances, decide to laugh at a “story” told by somebody else and pass it off as a harmless “tall tale”, “fish story”, or the like, but it doesn’t alter the fact that it is a lie.
Consider: if I went about telling people in a very public manner (as in a memoir) that a New Yorker with the Disqus name “blder” is a rapist, would you regard that as merely a “story”? If you told me that people – somehow – thought I was talking about you, and I refused to alter my story so that people DIDN’T think it was you, would you simply pass it off as me telling a story? Or would you think that I had defamed you and be mad as hell about it?
And would you also think I was lying about you?
“it seems hard to translate a deliberate alteration in a story as a lie, given that the entire point of the story wasn’t to indite the accused, but to tell a narrative”
Okay, so if I write an essay or memoir in which I say that an actual real identifiable person has molested many children, I can just say “Well, I didn’t write this memoir to indict or prosecute this person, so it does not really matter whether he actually molested anybody or not.” Right?
I didn’t quite get Trotter’s point either. Most people were not debating the “if” but the “who” as the fraud. The most idiotic thing is Trotter trots out quotes that don’t support his line of conservatives saying no rape and then acts perplexed that Breitbart does in fact claim another may have been the rapist. So he uses empty quotes to claim Breitbart started the no rape line and then cites Breitbart for maintaining another was involved all along. Trotter, like most of his kind, doesn’t seem to be able to quite understand the meaning of words.
So Trotter throws some guy to the wolves and makes Dunham look even stupider and more disingenuous, if that’s possible. Maybe he thought it would be better if a Dem got there first. I doubt Ungar is feeling the solidarity in taking a dubious hit for the cause or in being profiled as a rapist to shield Dunham.
If Dunham was so out of it she barely knew what was happening, why not Ungar too? As usual, only the man is the responsible designated driver when both are drunk. Putting that responsibility instead on Dunham’s fierce feminist shoulders, one could argue she raped herself. And I doubt anyone is going to buy that Dunham said “Republican” because it would throw off people. She could’ve said he was a Sikh from the Punjab.
Still a dumb story since dispensing with a condom in mid-stride has nothing to do with rape except under the expanded feminist definition which includes all time and space except for women lying about being on the pill then being rapists.
Even more interesting is Dunham says in her book that her friend “Audrey” maintained having sex with a Republican is worse than rape even though Dunham knew that GOP angle never happened. Laughing off rape aside, if there was no Republican, then how could that conversation with her friend Audrey or Audrey’s “wince” have ever taken place? Was she lying to her friend? Unlikely. More likely the conversation is made up, which poses the question of how much of the book is made up out of whole cloth. Or we could believe the distinctively proud campus Republican suddenly decided to go Dem, or maybe even was a werewolf.
Happens all the time. And the sad thing is, our system encourages it now. American jurisprudence is dead in favor of the “law” engaged in in the third world.
I think he’s doing a funny about how many ISIS it takes to enslave a woman.
Taking off a condom without telling the partner can be characterized as many things, but assault isn’t one of them. Sex was apparently agreed to by both parties; it’s just that one of them changed the rules mid-stream. No-one should be surprised at such an event as pertains to sex.
I think the offer is contingent on him promising not to sue them.
I think the usual term is “hush money.”
The key word in your second sentence is “sue.” I said “potential cause of action.” Those are legal terms. I know. I’ve been doing this for 30 plus years, including defamation cases, both prosecution and defense, you tool. And while releases in legal cases do not contain and admission of guilt, publishers do not publicly offer settlements of specious claims. A “PR” settlement is done because the smoke indicates a fire, and that the publisher would rather not expose Ms. Dunham and themselves to cross examination.
And yes, I own a business which support over 30 families, and paid more into the public coffers than you’ll probably ever see.
We’re like you: we just believe the nice parts. Our nice parts are nicer than your nice parts.
She can feel however she wants.
When her “feelings” start to defame another person, it’s quite another matter.
She’ll later claim she did that cuz her sister was a Republican and a traitor.
I simply doubt that she’s a sociopath that would choose a random person to defame in her publicly released book. I understand that many here have an intrinsic belief that all liberals are sociopathic monsters, but that seems like a massive stretch to me. There is literally no motivation for her to have done that.
Based on that rational assumption, it seems way more likely that the name “Barry” is just a bad coincidence. I mean, all the other details besides him being a conservative do not match. How is that explained if it was intentional?
If this ultimately went to trial, “Barry” would lose. There is nothing besides his name and party affiliation that match, and him attending school at the same time as her. Any reasonable judge would know this does not meet the standard of “defamation” or “libel”.
In the end, using a name in your book that happens to coincide with a real person is not a crime, or even worthy of condemnation. Are we really going to hold all authors to that sort of standard? Investigate all of your characters to ensure they do not have any resemblance of a real citizen?
Raping a Dem may have turned him Dem – ipso facto.
The hardest thing to believe about Lena Dunham’s rape story was the idea that anyone would want to rape Lena Dunham.
She looks like a potato.
Don’t you dare defame potatoes that way.
A “Looks-ist” remark. I denounce you.
One point to consider – Gawker, despite apparent vigorous effort, was unable to establish ANY evidence that the NPR scion was affiliated with conservative causes, never anywhere at any time.
Maybe he was center of left or something but it doesn’t seem to have been his core characteristic or have much to do with their cooperative endeavors.
http://www.greedygiver.com/Content/images/profilePics/[email protected]
Actions have consequences. You can feel however you want to, but when you publish a book that makes claims about other people, you’d better believe they will speak up about it. I know this is a terrible thing where you can’t count on conservatives to just take abuse any longer, but I expect this is just the tip of the iceberg, culturally speaking. Strap in. It’ll only get worse for you liberals from here on out.
Your legal analysis is faulty. The legal doctrine of colloquium provides that the extrinsic facts provided by Dunham make “Barry” readily identifiable.
Jebus, every fawning article about her little experience describes it as “rape”. For example:
Lena Dunham Opens Up About Being A Rape Survivor
http://www.huffingtonpost.com/2014/10/02/lena-dunham-rape-story_n_5915328.html
Who Is Lena Dunham’s Alleged Rapist?
http://gawker.com/who-is-lena-dunham-s-alleged-rapist-1671002935
Lena Dunham: Writing About My Rape ‘Was Never About Exposing’ My Assailant
http://www.people.com/article/lena-dunham-responds-sexual-assault
Lena Dunham Recounts Date Rape in College
http://www.eonline.com/news/584413/lena-dunham-recounts-date-rape-in-college
Dunham seems perfectly willing to let what allegedly happened to her be cast as “rape”. I can only take this to mean that she’s quite comfortable with how the term is being applied. Put another way: if she doesn’t claim that she was raped and doesn’t want people to think that she was, then why does she allow other people to write this about her? The answer is obvious.
As for her not wanting to pursue legal action against her alleged attacker, I’m not surprised: discovery can be a b!tch. Further, the police, public prosecutors, judges and juries tend to take a dim view of the “feelings” of “unreliable narrators”, especially when it’s a question of putting a man into prison.
“If this ultimately went to trial, “Barry” would lose. There is nothing besides his name and party affiliation that match, and him attending school at the same time as her. Any reasonable judge would know this does not meet the standard of “defamation” or “libel”.”
If you are actually an attorney, please let us know.
Until then, we may find the opinion from an assessment from an actual attorney and libel expert to be more persuasive:
The answer doesn’t require us to delve into negligence or intentional infliction of emotional distress, because this would be a classic defamation case. Identifiable Conservative Barry would argue that
Dunham said things about him that injured his reputation with some people
because some people reasonably identified him as the Barry she mentions and yet,
those statements were false, in that no conservative Oberlin student named Barry actually did to her what she says was done to her, even if someone else with another name or other identifying characteristics did this, and
Dunham knew that the statements were false, in that she knew that no conservative Oberlin Barry did this to her.
Nor does it matter that Barry’s last name was not used. As the Restatement (Second) of Torts says (emphasis and some paragraph breaks added),
A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer….
Comment b. Person mistakenly but reasonably believed to be intended. If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him. It is not enough however, that the defamatory matter is actually understood as intended to refer to the plaintiff; the interpretation must be reasonable in the light of all the circumstances. It is not necessary that the plaintiff be designated by name; it is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended.…
It is not necessary that everyone recognize the other as the person intended; it is enough that any recipient of the communication reasonably so understands it….
[T]he defamer is subject to liability if he knew that the communication would be understood by the recipient to refer to the plaintiff or was negligent in failing to recognize that this might happen. If the recipient reasonably understood the communication to be made concerning the plaintiff, it may be inferred that the defamer was negligent in failing to realize that the communication would be so understood….
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/04/could-barry-sue-lena-dunham-over-her-memoirs/
“Lena Dunham is allowed to feel about her own personal experiences in her own life”
http://2.bp.blogspot.com/-ASKoQtsCwug/T3kTtYkH3UI/AAAAAAAAFK4/NaUTURTMiLw/s1600/mangina+award+2+copy.jpg
Hopefully NOT “open”!
Heroic?
Well, the description of “Barry” doesn’t match the real Barry in any way except for his name and political leanings.
What you’ve described is actually libel, assuming the actually person was identified…
I do not believe what you’ve said is a reasonable analogy to what has happened, so it’s hard to respond without simply saying, “Well, that’s not the same”, which to most people would just read like I am saying there is a double standard…
She’s down for “the cause”, her lying doesn’t matter.
Yea, I think the discussion of what is and isn’t “rape” is a fair one to have, and that wasn’t my original intention when commenting here. I really am not even trying to defend Lena Dunham’s actions, I just don’t think that there is any conclusive evidence either way, while the conservative media seems to insist there is… It is fully possible she fabricated the story, I don’t know her and I wasn’t there. Maybe she put it in her book not expecting it to draw attention, though the original draft would indicate otherwise…
As far as her not correcting peoples’ description of the events as “rape”, I don’t see that as being a definitive indictment of her as a liar. She seems to be pretty clear about it when she says she has very mixed feelings about what happened. She explicitly says she blames herself. In her mind, she feels like she did not consent to what happened.
In her mind, there is a difference between consenting to sex with a condom and consenting to sex without. I believe, as I think most would, that she has a point there.
You said that a “deliberate alteration in a story” is not a “lie” so long as the “entire point of the story wasn’t to indite [sic] the accused.” And you seemed to imply that there is nothing wrong or objectionable about making false statements or allegations against the “accused” so long as the “entire point of the story wasn’t to indite [sic] the accused.”
You did not qualify your defense of Dunham’s “narrative” by saying “only so long as the person accused is not clearly identified or cannot be matched with an identifiable person.”
And what Dunham did was actionable libel, even if other false details did not match the actual “Barry.”
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/04/could-barry-sue-lena-dunham-over-her-memoirs/
The bar for becoming a “proven liar” is being proved a liar. Which applies to Hyena Dunham.
And your comment indicates what is ultimately the problem: the elevation of the subjective, i.e. “feelings” over the objective, i.e. a set of standards which govern conduct. Dunham sought to use her feelings to make money. In the process of translating those feelings to a narrative, she made accusations which have been connected to real people. Those accusations are now being judged–not based upon feelings or emotions, but upon facts.
Feelings and emotions are personal. I don’t begrudge people having them. But to try to make one’s feelings, which necessarily can change in an instant, the basis for public policy without regard to the people who may be harmed, is despicable.
I suggest you scroll down toward the end and read my comment about my experience with a loved one who endured a real sexual assault but who did not get a damn parade, a television series and a book deal as a result. Perhaps then you will understand why Ms. Dunham’s behavior elicits the response it has.
I agree that a photo of Dunham is in and of itself proof of innocence, but he was drunk and may have had that watery funhouse mirror tunnel vision like the aliens in It Came From Outer Space.
In that case who knows what he saw; coulda been Mata Hari or Calamity Jane.
What I am still DYING to know is whether or not she still stands behind the story of Barry or whoever he is spattering the walls with her friend’s blood.
As I have mentioned over and over again, in various places, the only way your blood can leave your body with enough force to actually spatter a wall is if you have a severed artery. Which is usually a life-threatening condition. Alternatively, the blood could have been flung around by “Barry” wielding a weapon that had been bloodied. Also a life-threatening condition.
And apparently, the next day, her friend just walked to the clinic with this man. No mention of his savage, life-threatening assault from the night before.
Even if you want to say that the events described in the Gawker article are “rape”, which they may be in some highly abstract, purely academic sense, that ISN’T the same story she told in the book she finally released.
So I don’t quite get why Gawker is acting so superior to Breitbart and John Nolte. She actually DID lie. The story she told WASN’T true. It’s not just Barry’s name or party affiliation at stake here. The story she told in her book isn’t the same as the one in the original manuscript. So how is it stupid to be suspicious of her, if she actually WAS lying?
Well, I mean. I do understand it. It’s Gawker we’re talking about. But still.
I’d go with his legal analysis over my own. Assuming he is correct, then it looks like “Barry” could have potentially had a fighting chance in a defamation lawsuit. As I am apparently not as acquainted with civil law as others, I’m willing to accept that, though I can’t exactly recall how this thread led to discussing this…
Stepping back, my assertion originally was that I doubted any defamation of “Barry” was truly intentional (since it would lead to law suits), and that the publisher paying the legal fees “Barry” has incurred was not an admission of any intentional defamation.
I doubt Ungar is feeling the solidarity in taking a dubious hit for the cause or in being profiled as a rapist to shield Dunham.
I’d hate to be Ungar just now. He’s been publicly, explicitly marked down as a rapist.
Wonder if HE’LL sue Dunham. Or Trotter. Or both.
Incidentally, this gets into the entire issue of how rape is handled. Dunham claims she was sexually assaulted (her supporters use the word “rape”, and she seems perfectly fine with that). Yet, she didn’t call the cops. Fine; her decision.
Yet, she now – years later – very publicly talks about it and allows one (two, now) men to bear the onus of being rapists without a single opportunity to defend themselves. Nothing has been proved against them, but they must got through life (like the UVA frat boys) with people believing that they raped a woman.
Is it any wonder that we nasty ol’ “rape deniers” are a little upset?
In my comment above I accept Eugene Volokh’s argument. “Barry” could have had a case here, since Lena’s intention doesn’t appear to matter all that much in his analysis.
As for the “lying” and “storytelling”, I agree what you describe would both be defamation and lying. I don’t think it is the proper analogy in this case, though, since I am not convinced Lena intended to defame “Barry”. Her original draft indicates otherwise, as well, not to mention that “Barry” does not fit her description besides his name and political leanings.
In addition, I believe that there was about a month between when “Barry” is said to have contacted the publisher and when she responded. If her and her publisher were knowingly refusing to address the situation, then yes I agree that is bad.