The recent documentary The Hunting Ground asserts that young women are in grave danger of sexual assault as soon as they arrive on college campuses. The film has been screened at the White House for staff and legislators. Senate Democrat Kirsten Gillibrand, who makes a cameo appearance in the film, cites it as confirmation of the need for the punitive campus sexual assault legislation she has introduced.
Gillibrand’s colleague Barbara Boxer, after the film’s premiere said, “Believe me, there will be fallout.” The film has received nearly universal acclaim from critics—the Washington Post called it “lucid,” “infuriating,” and “galvanizing”—and, months after its initial release, its influence continues to grow, as schools across the country host screenings. “If you have a daughter going to any college in America, you need to see The Hunting Ground,” the MSNBC host Joe Scarborough told his viewers in May. This fall, it will get a further boost when CNN, a co-producer, plans to broadcast the film, broadening its audience. The Hunting Ground is helping define the problem of campus sexual assault for policymakers, college administrators, students, and their parents.
The film has two major themes. One, stated by producer Amy Ziering during an appearance on The Daily Show, is that campus sexual assaults are not “just a date gone bad, or a bad hook-up, or, you know, miscommunication.” Instead, the filmmakers argue, campus rape is “a highly calculated, premeditated crime,” one typically committed by serial predators. (They give significant screen time to David Lisak, the retired psychology professor who originated this theory.) The second theme is that even when school administrators are informed of harm done to female students by these repeat offenders, schools typically do nothing in response. Director Kirby Dick has said that “colleges are primarily concerned about their reputation” and that “if a rape happens, they’ll do everything to distance themselves from it.” In the film, a former assistant dean of students at the University of North Carolina, Melinda Manning, says schools “make it difficult for students to report” sexual assault in order to avoid federal reporting requirements and to “artificially keep [their] numbers low.”
One of the four key stories told in the film illustrates both of these points. It is the harrowing account of Kamilah Willingham, who describes what happened during the early morning hours of Jan. 15, 2011, while she was a student at Harvard Law School. She says a male classmate, a man she thought was her friend, drugged the drinks he bought at a bar for her and a female friend, then took the two women back to Willingham’s apartment and sexually assaulted them. When she reported this to Harvard, she says university officials were indifferent and even hostile to her. “He’s dangerous,” she says in the film of her alleged attacker, as she tries to keep her composure. “This is a rapist. This is a guy who’s a sexual predator, who assaulted two girls in one night.” The events continue to haunt her. “It’s still right up here,” she says tearfully, placing a hand on her chest.
An allegation of sexual assault is a grave one. If proven true, it can rightly end a perpetrator’s education and send him to prison. Because the stakes are so high, it is crucial, in telling stories of sexual assault, not to be blinded by advocacy, but to fairly examine the assertions of both sides. Despite the filmmakers’ assurances, The Hunting Ground fails in this regard. I looked into the case of Kamilah Willingham, whose allegations generated a voluminous record. What the evidence (including Willingham’s own testimony) shows is often dramatically at odds with the account presented in the film.
Willingham’s story is not an illustration of a sexual predator allowed to run loose by self-interested administrators. The record shows that what happened that night was precisely the kind of spontaneous, drunken encounter that administrators who deal with campus sexual assault accusations say is typical. (The filmmakers, who favor David Lisak’s poorly substantiated position that our college campuses are rife with serial rapists, reject the suggestion that such encounters are the source of many sexual assault allegations.) Nor is Willingham’s story an example of official indifference. Harvard did not ignore her complaints; the school thoroughly investigated them. And because of her allegations, the law school education of her alleged assailant has been halted for the past four years.
The Hunting Ground does not identify that man. His name is Brandon Winston, now 30 years old. Earlier this year, he was tried in a Massachusetts superior court on felony charges of indecent assault and battery—that is, unwanted sexual touching, not rape. In March, he was cleared of all felony charges and found guilty of a single count of misdemeanor nonsexual touching. Following the trial, the Administrative Board of Harvard Law School, which handles student discipline, reviewed Winston’s case and voted to reinstate him. This fall, he will be allowed to complete his long-delayed final year of law school.
Like most journalists and critics, I first wrote about The Hunting Ground on Feb. 27 of this year, the day the film made its theatrical debut, and did so unaware that, the same week, the unnamed man Willingham calls a rapist was standing trial in Middlesex County on the charges stemming from her criminal complaint. I learned of Winston’s trial when a juror contacted me after it concluded to express dismay that Winston had been forced to stand trial—and had faced potential jail time—for what she saw as a drunken hook-up. Winston declined to talk with me directly, but I spoke extensively with Norman Zalkind, the lawyer who represented him at trial.
The makers of The Hunting Ground say they gave the young men implicated in the filma chance to comment, and none responded. But it wasn’t until February, a month after the documentary made a celebrated debut at the Sundance Film Festival, that Winston says he was first contacted by a representative for the film. He referred this person to Zalkind, who says he never heard from anyone representing The Hunting Ground. I contacted Kirby Dick to talk to him about the Willingham case. He declined to speak with me, but asked for a list of written questions. I sent him my questions by email, and he replied, “After careful consideration I respectfully decline.” I also contacted CNN to discuss the case. A representative did not respond to a request for comment.
The filmmakers present what happened between Kamilah Willingham and Brandon Winston as a terrifying warning to female college students and their parents, and a call to arms to government officials and college administrators. They offer the case as prima facie evidence that draconian regulations, laws, and punishments are required to end what they say is a scourge of sexual violence. But there is another story, which the filmmakers do not tell. It’s a story in which Willingham’s accusations are taken seriously and Winston’s actions are thoroughly investigated, first by Harvard University and later by the Middlesex County district attorney’s office. It’s a story in which neither the school nor the legal system finds that a rape occurred, and in which Willingham’s credibility is called seriously into question. It’s a story of an ambiguous sexual encounter among young adults that almost destroyed the life of the accused, a young black man with no previous record of criminal behavior. It’s a story that demonstrates how deeply the filmmakers’ politics colored their presentation of the facts—and how deeply flawed their influential film is as a result.
The Night in Question
Kamilah Willingham, now 28 years old, is a graduate of Pomona College and until recently worked in Los Angeles for Just Detention International, an organization fighting sexual abuse of prisoners. (I attempted to reach Willingham on the phone, through her former employer, through her lawyer, and via Facebook, but I did not hear back from her.) Brandon Winston was born at Camp Lejeune, North Carolina; his father is a former Marine who became a New York City firefighter, his mother a high school math teacher. He was accepted on scholarship to the elite boarding school Phillips Academy through a program to bring promising urban students to the school. He graduated from St. John’s College in Santa Fe, New Mexico. He wants to be a patent lawyer.
According to the transcripts from Winston’s eventual trial for assault, Willingham got to know Winston, who was a year behind her in school, when they worked together on a research project for a class they were both taking. Both tall and good-looking, they started seeing each other socially, and one time at Willingham’s apartment they made out, but decided to be just friends. After the project concluded, they drifted apart, each busy with school and new romantic involvements. But by the winter of Willingham’s third year of law school, her relationship had ended, and Winston’s was winding down as well. The two began exchanging messages about finding a time to reconnect.
On a Friday in mid-January, replying to a previous invitation from Willingham, Winston texted that he was near Willingham’s apartment and he wanted to drop by. There is general agreement about how the evening began. Winston arrived around 7:30, and Willingham made him a drink of hot chocolate and liqueur. They looked at photos from a recent trip Willingham had made to Kenya to visit her mother, an American working for the United Nations, and were soon joined by a high school friend of Kamilah’s. I’ll call that friend KF (for Kamilah’s friend). Both Willingham and Winston are black; KF is white. In a detail left out of The Hunting Ground, Willingham brought out cocaine, which she and Winston (but not KF) consumed.
Around 11:30, the group decided to go to a bar, the Middlesex Lounge, and here the versions of events begin to diverge. KF testified that she had been drinking at Willingham’s apartment, and just before they all left she was “starting to get hazy” and didn’t clearly remember the cab ride to the bar. Her memory for the remainder of the evening consists of “walking to the bar then waking up the next morning.” Once at the bar, Winston opened a tab; it eventually came to more than $160. The three drank, talked, and danced with strangers. Then, late into the night, Winston testified that KF came over and started dancing with him: “[KF] puts her arms around my neck and starts kissing me, while we were dancing. I start kissing her back.” He continued: “My hands were wrapped around her. Her legs came completely off the floor, wrapped around my body as we were grinding together.” He said that while this was going on, Willingham was near them on the dance floor. On direct examination Willingham said she did not see them dancing; on cross-examination she said that she did.
A little before 2 a.m. the bar closed, and Willingham walked a few blocks to get a cab. She testified that KF was very drunk, had fallen down at the bar, and needed help walking. Winston testified they were all drunk but he never saw KF fall, and she was able to walk to the cab. He also testified that he’d left his bag at Willingham’s apartment, that he asked her in the taxi if he could go back to her apartment and spend the night, and that she said yes. None of them had any cash, so when the cab arrived at Willingham’s apartment, the two women went into the building while Winston went to an ATM to pay the driver. Winston returned to Willingham’s apartment, though the details of his entrance are in dispute: Willingham testified she did not buzz him in and speculated he knew her door code; he testified he didn’t know it and that she let him in.
Willingham testified that she was collapsed at her apartment door when Winston arrived, that he took her key to let them all in the apartment, and that the three of them went to the bedroom. She said she and KF flopped face first on the bed, and then Winston came in and took off both women’s boots. She says she went to the bathroom to be sick, then came back to the bed and passed out. “I woke up and he was kissing me,” she testified. “The next thing I remember is waking up with him on top of me. His hand was inside of my tights. I didn’t know how long it had been there. I remember pulling it out of my tights. He was kissing me and touching me. I think I pulled his hair a little bit.” She said she then reached her hand out and felt naked skin—KF’s back. She said KF was naked from the waist up. She asked Winston how KF’s top had come off, and Winston said he had taken it off. Then, she said, he reached out and stroked KF’s breasts. (In The Hunting Ground Willingham says that she “yanked him by the hair” to get him to stop touching her and that KF was “totally naked.”)
Winston’s account is substantially different. He testified that he arrived at the apartment to find the door ajar and that he walked down the hall to Willingham’s bedroom. Willingham was not there, but KF was, and she appeared to be asleep. He said he roused her and got her to sit up. They started kissing. “She had her hands around my neck and my hands around her body,” he testified. He told her to lift up her arms, and he took off her shirt. They continued kissing, and he tried to unhook her bra. “I wasn’t able to,” he said. Then he passed out. He testified that the entire encounter lasted three to five minutes.
Winston testified that he was awakened by “a body that was rubbing against mine and a tongue in my mouth.” He thought it was KF; it was Willingham. As he came to, he rolled over, and Willingham wrapped her legs around him. He said that their clinch lasted about 30 seconds and that she never pulled his hair. He testified that he then told Willingham he was going to sleep on the couch in the living room. Both Winston and Willingham agree that she encouraged him to sleep in a spare bedroom. Willingham testified she did so because the living room was cold and the bed would be more comfortable for him.
The next day, Willingham began sending accusatory texts to Winston about KF. She recounts the initial exchanges in The Hunting Ground: “I said something very casually like, ‘Am I going to have to tell her that she needs a pregnancy test?’ And he said in the text message, ‘No we didn’t do anything serious. Maybe I put a finger in her v at most.’ ” Willingham’s mother then appears on screen saying, “It was pretty clear he had assaulted them while they were unconscious. I absolutely assumed that Harvard would do right by Kamilah.”
Winston testified that when he got the pregnancy question from Willingham he thought she was joking. The texts were introduced as evidence at the trial. Winston’s text in response was, “Very very funny Kamillah [sic].” She replied: “hahaha…but for realz…did you put your p in her v?” His answer: “No!! I passed out after some minor touchings no more than what you and I were doing a finger briefly in the v at most.” Willingham’s questions and accusations continued, and Winston began denying any genital contact. In an instant message conversation, he stated he had not touched KF’s vaginal area. “There wasn’t any real touching going on. No fingering. I took her shirt off and then passed out.”
Over the next few days, Winston issued a stream of apologies to Willingham. She asked, in an instant message, “When is it ever okay to initiate something with someone while she’s asleep?” He replied: “Never. I was seriously wrecked and I went too far. I wasn’t trying to force her. I know it sounds like it. I was talking to her the whole time, and she was talking back, but in that passed-out mumbling way that is essentially being asleep. And I was totally reckless, I know. I’m sorry.” He would later testify that while he didn’t believe he’d done anything wrong, he was trying to mollify his angry friend.
Willingham, however, was not placated. Winston testified that several days after their late night, she met with him and told him she had found a condom at the top of the wastebasket in her bathroom with blood on it. Willingham told Winston that KF had been menstruating on the evening in question and that she thought he might have used the condom with KF. Winston testified, “I was shaken. She made it very clear that … she was accusing me of rape.”
Winston had no memory of having intercourse with anyone, but when Willingham confronted him, he wondered if he could have done something while in a blackout state. Frightened, he testified that he checked his wallet, and the single condom he always carried was still there. He told Willingham the condom at her apartment wasn’t his. She told him she had already given it to the police. (The Cambridge Police Department declined to comment on the case.) Eventually, the condom was tested by law enforcement. There was both male and female DNA on it. The DNA from the woman was not that of KF but Willingham. Law enforcement did not test to see whether Winston was the source of the male DNA. Winston’s lawyer, Norman Zalkind, did. The male DNA did not belong to Brandon Winston.
Willingham waited three months, until April of 2011, a few weeks before her graduation, to report the alleged assault from January. In The Hunting Ground she describes a process that was disdainful and insulting. “There was this extreme reluctance to believe me,” she says in the documentary. But the record suggests otherwise. Harvard hired an outside lawyer to conduct an investigation and present a report to the law school’s Administrative Board, a committee composed of faculty, staff, and students. During this process, Winston was interviewed for about six hours—the tape was played for the jurors at his later criminal trial, and the 150-page transcript shows he was questioned vigorously, asked persistently about every detail of that evening. Willingham and KF declined to have their interviews taped.
In the fall of 2011, the Administrative Board ruled that Winston was responsible for sexual harassment, and he was put on what the school calls “dismission,” a form of expulsion that would allow him to reapply for admission. In the film, the finding against Winston is presented as a rare triumph, though a fleeting one. Willingham says in the movie that upon returning to Cambridge in September, she received a Facebook message from the dean of students, who wanted to meet with her. (Willingham had graduated from the law school; she was back in Cambridge for a teaching fellowship in the sociology department of Harvard College.) The meeting was to deliver the news that Winston’s dismission had been overturned by the faculty. But the movie is misleading on the process and the timeline. Winston missed the entire 2011–2012 academic year because of the finding of the Administrative Board. During that year, he was barred from attending classes while his case slowly worked its way through the law school’s disciplinary process; at that time, expulsion required that two-thirds of the faculty vote to ratify the ruling. It wasn’t until the spring of 2012 that the faculty, after reviewing the testimony from the administrative hearing, voted to dismiss the charges against Winston and allow his return that fall.
Willingham had pro bono legal representation during the law school’s administrative hearing. Her lawyer, Colby Bruno of the Victim Rights Law Center, says in The Hunting Ground of the Harvard process: “The message is clear: It’s ‘Don’t proceed through these disciplinary hearings.’ No matter what you do, you’re not going to win.”
To get another perspective on the case, I spoke with Harvard Law professor Charles Ogletree Jr. Ogletree was legal counsel for Anita Hill in her sexual harassment hearing against now–Supreme Court Justice Clarence Thomas. He came to know Winston when he was “one of the stars” in the professor’s trial advocacy workshop. Ogletree said the review process of Winston’s case by the law school faculty was lengthy and deliberate: “Women and men offered their input. The overwhelming majority concluded this is not a person who should be punished.” Ogletree ultimately helped Winston secure legal representation for his criminal case.
Winston’s reprieve at Harvard was short-lived. In October 2012, a grand jury indicted him on two felony counts. Harvard placed Winston on an involuntary leave of absence due to the criminal charges pending against him. The indictment was the culmination of the long legal process that began when Willingham and KF reported to the police that they had been sexually assaulted and Willingham gave the police the condom from her bathroom wastebasket. Toward the end of The Hunting Ground, a graphic announces: “A grand jury in Boston indicted Kamilah’s accused assailant with two counts of sexual assault.” What the filmmakers don’t explain is that the grand jury charges stemmed from Winston’s touching of KF. The grand jury declined to indict him on any charges concerning Willingham. She appeared at his trial not as a victim but as a witness.
Winston’s criminal trial didn’t begin until February of this year, nearly 2½ years after his indictment. Waiting for his day in court, Winston worked for a sculptor and then for a friend in software development. He faced two felony counts of indecent assault and battery against KF, specifically one count of “hand on vaginal area” and one count of “hand on breast.” (Despite the “finger in her v” text, Winston was not charged with a penetrative act, which in Massachusetts would have been considered rape.) The prosecutor, Marisa Tagliareni, argued to the jury in her opening statement that on Jan. 15, 2011, KF “was in no position to give consent to any kind of touching” and that Winston “went too far with [KF] that night.” (A representative for the Middlesex district attorney declined to make Tagliareni available for an interview.) Zalkind, in his opening, countered with a description of an inebriated but consensual encounter: “She kisses him, he kisses her. It’s mutual.”
There was no mention during the five-day trial of Winston drugging anyone’s drinks, a key accusation Willingham makes in The Hunting Ground. The prosecutor agreed with a defense motion not to make such an assertion due to the absence of any evidence to support it. Then there was the matter of the condom. The prosecution sought to have the condom excluded from evidence, arguing that it was not relevant to the crimes for which Winston had been indicted. (The actual source of the male DNA on it has never been identified.) Judge Maynard Kirpalani, in his decision to allow it, wrote, “This evidence is relevant, at a minimum, to demonstrate Willingham’s bias against the defendant, as the jury could infer that Willingham knew, at the time that she questioned the defendant about the condom, that the condom was not his. The jury could further infer that her questioning of the defendant was disingenuous.” Willingham testified she had no idea how the condom had gotten in her wastebasket. She said during cross-examination, “Of course I didn’t know it was mine.”
I spoke to two jurors on the trial: the woman, a public school teacher, age 54, who first approached me about the case, and a man, a public radio employee, age 52. Both jurors were willing to characterize the deliberations, but neither wanted to be publicly identified. The jury, seven men and five women, deliberated for three days. The jurors felt there was insufficient evidence that Winston touched KF’s vaginal area, despite his initial reference to the possibility in his text exchange with Willingham. KF remained clothed below the waist, and Willingham never claimed to have witnessed such an act. Winston was acquitted on that count. But the jury deadlocked 11–1 on the second count of touching the breast; a male juror was the lone holdout for conviction. To break the impasse, the jury acquitted Winston of touching KF’s breast but found him guilty of a single lesser included charge within that count: misdemeanor touching of a nonsexual nature. The male juror I spoke with expressed misgivings about convicting on even the less serious count but acknowledged Winston’s apologies were problematic. “That’s the way I can live with myself,” he said. “Brandon did confess to crossing certain lines.”
At sentencing, the prosecutor noted that KF had suffered confusion and embarrassment as a result of the events of Jan. 15 and that she has since had “issues with trusting people.” Zalkind reminded the court that Winston had been acquitted of the felony counts and that his law school education had already been on hold for nearly four years. The judge, noting Winston was not convicted of a sexual charge, sentenced him to 90 days of supervised probation—meaning a monthly check-in with a probation officer—and 180 days of unsupervised probation. Kirpalani said of Winston, “He has ... no criminal record whatsoever, and until these circumstances arose, had been a model citizen and a student with some promise.”
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Brandon Winston was hardly a perfect gentleman on the night of Jan. 15, 2011. But aside from Kamilah Willingham’s assertions in The Hunting Ground, there is no evidence to suggest he is dangerous or a predator. Nor do Willingham’s claims of institutional indifference hold up; Harvard twice delayed Winston’s education while its own and later Middlesex County’s adjudication processes unfolded. Neither found evidence to substantiate Willingham’s claims in The Hunting Ground, and Winston has since received the punishment the legal system deemed appropriate for his actions.
The filmmakers say they interviewed more than 70 women who have been sexually assaulted in order to find the most compelling and illustrative stories to tell in their film. They say that each of their major cases is backed up with “extensive fact-checking” and thousands of pages of documents. But if they fact-checked this case, that only makes their one-sided portrayal of the Willingham case that much more troubling.
The story Kamilah Willingham tells about Brandon Winston bookends The Hunting Ground. The filmmakers juxtapose her final, emotional appearance on screen with a speech by the president of Harvard University, Drew Gilpin Faust. “Universities must nurture the ability to interpret, to make critical judgments, to dare to ask the biggest questions: What is good? What is just?” Faust says, and it’s clear the filmmakers hear in her words a tragic irony, given their belief that Harvard has abdicated this duty. But it’s the filmmakers who should be asking themselves what is good and what is just. Sexual violence on campus is a serious issue, and it is imperative that we understand its dynamics, work to prevent it, punish wrongdoers, and aid victims. Blurring the truth, and failing to tell both sides of the story, is not the way to achieve these goals.
In their effort to sound an alarm about what they believe to be rampant college rape, the makers of The Hunting Ground did an injustice to Brandon Winston—and ultimately to viewers who have come, and will continue to come, to this film hoping for an accurate assessment of what’s really happening on America’s campuses.
Read more at: http://www.slate.com/articles/news_and_politics/doublex/2015/06/the_hunting_ground_a_closer_look_at_the_influential_documentary_reveals.3.html