I have spent the last two days listening to the sports talk show radio commentary concerning the University of Colorado football team's use of sex for player recruitment, and allegations of rape. I have not heard any guy - be it host, guest, or call-in voice - defend what happen or try to excuse the coach or the team. In fact, the voices all seem to be in agreement about how unacceptable it all is. Here is a brief overview of the story:
"Three women have sued the school in federal court, saying they were raped by football athletes in 2001 and the university had done nothing after a high school student accused a player of rape in 1997. In the past few weeks, three more cases have been disclosed. Former Colorado player Katie Hnida says she was raped by a teammate in 2000 and a one-time athletic department worker says she was assaulted by a player in 2001. University President Elizabeth Hoffman placed Barnett on administrative leave for criticizing Hnida's on-field performance, telling reporters that Hnida was "not only a girl" but a "terrible" player. Hoffman also said she was distressed by a remark attributed to Barnett in a 2001 police report that if another woman pursued rape charges against a player, Barnett "would back his player 100 percent." CBS News.
Things have not fared well for women lately. So the rumor goes. Maybe we should think of this as that moment when, in a slide down a cliff, there is a lifesaving chance to grab a foothold so we can stop the descent and begin to climb again.
We seem to at least be at a stage where people universally believe the sex for recruitment and rape as unacceptable, and lame good ol' boy reactions to the accusations, inexcusable. (I know what you are thinking. Just wait.)
But there is something else that all this demonstrates. When Coach Barnett, in response to his former player's accusation of rape, criticized Katie's abilities and labelled her as "just a girl", something unique happened: Even the most obtuse could hear the irrelevence and the unfairness of the attack. Even the thickest of the thick. This is an incredibly rare event. When something is universally accepted - here, bad logic and unfairness - it becomes a point of reference, as dependable as a yardstick and as trustworthy as a thermometer. This means we now have a standard that has alluded us in the past (remember Anita Hill?).
Ok, maybe it is a crappy one, or a low one, or - pick an adjective - but at least we have one. And as a lawyer, I look at a standard as a minimum requirement, a board from which to spring. In the common law we would call it precedent. A judge's decision that sets forth a guiding standard is called legal precedent. It is the law based upon the facts and circumstances presented in that case and it controls all other cases with similar facts and circumstances. If the precedent favors our position, but our facts are different, then we work very hard to make that precedent apply to our case. To do that we draw analogies between our facts and issues and those of the earlier decision. If we are sucessful, than the new decision in our case serves to increase the scope, the reach, and the applicability of the earlier precedent. Someday someone will work to expand upon the decision in my case, and so it goes.
Seldom do little gems like Barnett's fury land at one's feet like frozen turkeys from a helicopter. But trust me. If you can draw a simple analogy between his sexist lack of logic and whatever ubiquitous nonsensical sexist piece of garbage you are challenging on any given day of the year, you may just be able to connect with someone who would otherwise shut you out for being too academic or too Atlantic Monthly, or god forbid, a woman-libber. Battles need to be fought at all different levels, and this kind of amunition should not be overlooked.
I am not sure this makes a much sense on paper as it does in my head. I am multitasking this morning. I just think we can do something with this.