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Should UVA frat sue Rolling Stone for debunked rape story? (+video)

Phi Kappa Psi may have a case against Rolling Stone for their now-debunked report of a gang rape at the University of Virginia fraternity house. But it may not want to invite the kind of public scrutiny that comes with such cases.

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The Phi Kappa Psi fraternity house at the University of Virginia in Charlottesville, Va., Nov. 24, 2014. After a five-month police investigation into an alleged gang rape at the fraternity that Rolling Stone magazine described in graphic detail produced no evidence of the attack and was stymied by the accuser's unwillingness to cooperate, authorities said Monday.

Steve Helber/AP/File

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Phi Kappa Psi, the University of Virginia fraternity depicted in a 2014 Rolling Stone story as the center of a brutal college “rape culture,” says it may seek damages from the legendary music magazine after Charlottesville, Va., police said Monday that they found no evidence that corroborates the article’s main contention.

The piece, by contributing editor Sabrina Rubin Erdely, documented a bitter search for justice by a UVA student named “Jackie,” who was allegedly gang-raped by seven fraternity house brothers on Sept. 28, 2012. Rolling Stone was forced to apologize for its reporting after failing to interview any of the alleged attackers, and after other reporters found enough inconsistencies in the story to conclude the piece was largely, as The Washington Post’s Erik Wemple writes, “a crock.”

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Ms. Erdely’s original story made a splash nationally, especially as it seemed to confirm the importance of the Obama administration’s effort to get colleges, including UVA, to take sexual assault allegations more seriously.

But the subsequent debunking of Jackie's claims may have equally significant impacts, critics say, by potentially undermining the credence of rape victims more broadly, and, especially if a libel suit is filed, forcing university communities and the reporters that cover them to more deeply consider the potential reputational damage of allowing activism to get out ahead of the facts.

To be sure, the inability of police to find any evidence or testimony to back up the story only adds to the fraternity’s contention, made Monday, that the “defamatory” article caused “extensive damage” to institutional and personal reputations.

And a third-party review of Rolling Stone’s reporting and editing process, expected to be released by the Columbia University Graduate School of Journalism and published in Rolling Stone next month, is likely to raise more questions. The review will examine individual editing decisions that could potentially shed light on whether Erdely or the magazine exhibited reckless or malicious disregard for the truth – a central tenet of US libel law – when they published an apparently false story.

To be sure, there is little doubt that Rolling Stone’s admittedly flawed reporting damaged the reputation of Phi Kappa Psi, as well as the University of Virginia more broadly. Libel law primarily protects private individuals. (Old English law, on which modern libel law is built, says "libel ... must descend to particulars and individuals.") However, small groups of private people and even public individuals like Hollywood stars have won libel lawsuits. The university would likely be hard pressed to fit into that category of exceptions, but the fraternity may indeed have a case.

But even though Rolling Stone remains at “substantial risk of defamation liability,” as UCLA law professor Eugene Volokh writes, Phi Kappa Psi also has some thinking to do about whether bringing a lawsuit would do more harm than good to its reputation.

Firstly, in finding no evidence that a rape took place, Charlottesville Police Chief Tim Longo also noted that there may still be truth to Jackie’s story since “I can’t prove that something didn’t happen.”

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Secondly, for all its missteps, Rolling Stone never names any alleged perpetrator specifically in its story, and it’s doubtful whether any of the details in the story would point anyone to a specific, identifiable person. That doesn't negate a libel claim, but does set the bar higher for success.

Thirdly, at a time when growing numbers of fraternities find themselves banned from campuses after revelations of racist or sexist behavior, a libel trial could potentially reveal unflattering details about the fraternity’s history and culture.

Suing Rolling Stone “could backfire on you,” Rodney Smolla, a University of Georgia law professor, told the National Law Journal. “If you’ve got things you’re not proud of that are there, then do not bring the case because all of that will come out and it will cause you more damage than good.”

Acknowledgement by police that they have no evidence to prove that Jackie’s story is true certainly adds strength to any libel claim the fraternity may make against Rolling Stone.

Yet the policy thrust of Rolling Stone’s piece – that universities like UVA do too little to address a real problem on campus – touches on what many Americans believe is a real problem on US colleges, one that the Obama administration has tried to solve by pushing colleges to make it easier for women to report sexual assaults and for universities to seek redress.

In the wake of the Rolling Stone story, the University of Virginia forced fraternities to take extra steps to protect guests, including mandating that at least three brothers have to remain sober at fraternity functions.

“Accurate or not, the Rolling Stone article heightened scrutiny of campus sexual assaults amid a campaign by President Barack Obama to end them,” writes Michael Martz of the Richmond Times-Dispatch.

And even as Phi Kappa Psi mulls whether to sue Rolling Stone for tarnishing its reputation without facts, a Virginia state task force on campus sexual violence says it will soon report some sobering findings.

"This issue will not, and should not, be pushed back into the shadows," said task force chairman and Virginia Attorney General Mark Herring.