The Patrick Kane Case FAQ

On Sunday morning I wrote a piece that was critical of the Buffalo News‘s transcription of SkyBar owner Mark Croce. Not being a sports guy, I’ve been surprised by how much that post blew up, especially on Twitter. A solid majority of people were in agreement that Croce’s comments to the News were little more than the first salvo in what is likely to be a long and drawn-out effort by people aligned with Kane to blame the victim. A small minority of people were indignant, insisting that neither the News nor Croce did anything wrong, and an even smaller minority simply spewed ad hominem attacks.

Earlier this week, I followed up on Sunday’s piece by publishing this story, responding to the irony of Maki Becker’s piece in the News about victim-shaming in rape cases, and a second article questioning why it was that the Buffalo News‘s sports columnists—with the exception of Tim Graham—were utterly silent on such a big story.

Since then, Bucky Gleason wrote what I consider to be a weak opinion piece about not jumping to conclusions, and the News has a follow-up story that appears to try to fix some of the truly egregious damage that Mark Croce did to the alleged victim in the pages of the paper on Sunday. Tim Graham’s byline has been added to the story.

Brad Riter and I discussed all of this at some length at Trending Buffalo.

All that prompts me to this: the Pat Kane FAQ.

1. Pat Kane: innocent until proven guilty / presumption of innocence

Yes. In court—by a judge and jury—Kane is entitled to a presumption of innocence.  The prosecution—in this case the Erie County District Attorney’s office—bears the legal burden to prove its case beyond a reasonable doubt. In real life, however, the presumption doesn’t preclude the average person on the street from thinking whatever you want.

But if you insist on “innocent until proven guilty” as it relates to the superstar athlete, then it logically follows that the alleged victim’s story should be treated as true until proven false.

2. No Charges Have Been Filed: What Does That Mean? 

It means the police and prosecutors have not yet concluded their investigation, and they aren’t yet prepared to bring charges against Kane, present the case to a grand jury, arrest him, or undertake any other action towards prosecuting him. These things take time—there are tests to conclude, witnesses to interview. Because of its high profile, and because the victim and the accused both have lawyers representing them, everything will be done with exquisite care.

3. The only evidence is scratches and bite marks, right? 

Right; and, frankly, you shouldn’t even know that. Whoever told that to the Buffalo News was likely speaking out of turn and had no authority—legal or otherwise—to pass it along. Among other concerns, HIPAA prevents confidential medical information from being released, so quite frankly you and I don’t know what evidence exists, nor will you until such time as the matter is tried to a jury. Stop asking.

4. Did Croce Do Anything Wrong? 

I think so, and so do many other people, including:

Croce was under no obligation to speak with the media in general, or the Buffalo News in particular. Insofar as neither Croce nor the reporters could verify that the woman described in Croce’s statement has anything to do with this case, the information was completely irrelevant. The only thing his comments did was begin the spiral of victim-blaming and slut-shaming that contributes to bro/rape culture in this country, and that issue is especially acute when you’re dealing with a wealthy, successful, popular, good-looking young star athlete. The athlete has a lot to lose if, in fact, he committed a crime, so it isn’t unthinkable that there would be a sudden and concerted effort to accuse the victim of making it up, being a gold-digger, somehow deserving of what victimized her.

All of this is even more acute now that we have some information that the alleged victim a) was not the woman who wanted to accompany Kane to his home; and b) is by all accounts a responsible, motivated, respectful, and honest young woman.

5. Mark Croce didn’t do anything wrong! He’s just reporting what he saw!

Well, what precisely did he see that is relevant to this case? He doesn’t have the facts right, but he sure had a motive to open his yap. Croce went out of his way to tell the News that he saw a woman being flirtatious and hanging all over Kane at his bar that night. He also went out of his way to tell everyone that Kane wasn’t drunk. As I reported on Sunday, that’s significant for two reasons: 1. If Croce’s bar served alcohol to a visibly intoxicated Kane, that is a violation of the Alcoholic Beverage Control Law of New York; and 2. If Kane was drunk and tries to use that as part of his defense, Croce’s company, Buffalo Pub Concepts, Inc, may be liable to Kane’s alleged injured victim in a lawsuit brought under New York’s Dram Shop laws. Croce also had a motive to go to the News because he doesn’t want to slight Kane, who was evidently going to bring the Stanley Cup to one of Croce’s establishments last weekend.

As I mentioned before, Croce was under no obligation to go to the media about this. Given his company’s potential liability exposure, he’d have been smarter to issue a “no comment” and let his PR team or lawyers handle it. He was wrong for essentially slut-shaming a young woman who patronized his bar—whoever she was. But more significantly, he was wrong for letting loose the insinuation that the woman he described might be the alleged victim in the case, and because of her behavior at his bar, place doubt in people’s minds about the issue of consent. It was, in a word, despicable. 

I will never patronize one of his places again, and neither should you. (I’ve actually had that personal rule for five years, but that’s a whole other story). 

6. The Buffalo News didn’t do anything wrong! It’s just reporting what Croce said!

This isn’t how this is supposed to work. Do you want confirmation of your pre-existing bias, or do you want information? If you want the former, then the News was right to act as Croce’s slut-shaming stenographic service. If you want the latter, then you’ve learned absolutely nothing, except that the self-interested owner of the bar where Kane was drinking that night wants you to know he didn’t think Kane was drunk, and that he saw a pretty aggressive girl hanging all over Kane. The Buffalo News, as the sole paper in town, has a responsibility to print information that is relevant and newsworthy—Croce’s remarks about the flirty girl around Kane were neither. His remarks about Kane’s intoxication should have been offered with the caveat that Croce has an interest in getting that story out. Dan Herbeck defended this part of the report, and that he has the support of his editors. How truly sad that is; it’s truly tantamount to protecting the very powerful at the expense of the powerless.

In any event, reporters aren’t just stenographers—they should offer context and background. They should leave you informed, not inflamed.

7. Croce didn’t call her a slut, you did!

You’re right—Croce didn’t come right out and call the girl whom he saw a “slut”. Then again, neither did I.  I also didn’t say that he called her that. I said he was engaged in “slut-shaming“—click the link to see the definition. Again,

Croce told The News that he and several of his employees noticed a young womanhanging all over” Kane at SkyBar for at least two hours that night, putting her hands on his arms and “being very forward, very flirtatious with him.”

Even if Croce could somehow establish that the woman he’s describing is Kane’s alleged victim, this is all completely irrelevant to the question of whether Kane and she engaged in consensual sex later on that night. Indeed, its only purpose is to insinuate that it was the same woman, and that she was deserving of whatever happened back at Kane’s house later on.

But it’s even worse than that because Croce,

…said he does not know the woman and does not know her name.

Well, then the entire thing is irrelevant nonsense, and he only made it worse.

“It was almost like she stationed herself near him and was keeping other women away from him,” Croce said. “I noticed it and kind of laughed about it.”

So, we’re discussing rape allegations, and Croce is finding the humor in it all.

A bar manager that night also noticed the woman’s behavior with Kane, Croce said.

Objection. Hearsay.

Croce said the woman and a female friend “followed” Kane as he left the nightclub with a couple of male friends around 3 a.m. last Sunday.

I don’t know if this is the same woman who made the rape allegation against him,” Croce said. “I only know what I saw that night on my own premises. If you’re going to ask what happened between them after they left that night, how would I know?”

You wouldn’t. You frankly don’t know jack shit about any of it.

“This is America, the place where you are still innocent until proven guilty,” Croce said.

It’s also the place where you leave rape victims alone and don’t try to smear them, especially when they’re not exactly, e.g., rushing out to take advantage of their 15 minutes of fame.

8. She left the bar at 3am with Kane! It’s her own fault!

No, that’s false. First of all—that information is part of what Croce said about the mystery girl he saw hanging all over Kane at the bar, and we don’t know who that was. Indeed, the News now tells us that the alleged victim didn’t want to go, but went with her friend, who did. Nevertheless, here’s a quick little video to explain the idea of consent.

9. What does Kane’s lawyer have to do with this? 

We don’t know. The Buffalo News mentioned that Kane’s lawyer Paul Cambria was seen at SkyBar the same night as the events that Croce described. We don’t know what Cambria may have observed or witnessed, so there’s no way of knowing if Rule 3.7 of the lawyers’ ethical rules is a concern here. That provision generally prohibits a lawyer from representing someone in a case where he may also be called as a witness. Insofar as Cambria may have observed Kane, whom he was with, and what his demeanor or sobriety was, and that may preclude him from representing Kane in this particular case.

But it may not. It’s too early to tell, and we don’t have enough information. It’s just a possibility.

10. This is just your opinion!

Yes, mostly. That’s why it says “commentary” above in big red letters.

11. Kane is innocent! 

Innocent of what? He hasn’t been charged. He is presumed innocent in court, but as of right now we also have no reason to not believe the veracity of any allegation against him.

12. Is it cool to post what I think is the victim’s identity on the internet? 

No. Doing something like that—whether you’re right or wrong—makes you a class-A jerkoff. Have a little respect for this woman and leave her alone. By the way—if you’re wrong, you might be defaming whomever you’ve named.

Indeed, an especially irresponsible area media outlet has all but outed the alleged victim in this case and gone much further to try to blame her for her own alleged victimhood than Croce did. I won’t link to it or mention it, but suffice it to say that the outlet in question is run by a renowned gynophobe.

13. Is Mark Croce correct when he says he has, “no skin in the game”? 

Hell no. See #5, above. He has loads of skin in this particular game.

14. What do you think of Bucky Gleason’s piece? 

It came out several hours after I asked where these guys all were. I thought it was weak—the Chicago columns were, I thought, more reasonable and more clearly rejected the whole Kane-sports-god meme. I’m not a follower of his work, so I don’t know the extent to which it is consistent with his general reaction to criminal allegations against local sports figures, but…

This is no time to rush to judgment, whether you’re a sex-crimes expert or proud owner of a No. 88 jersey. It’s difficult to comprehend Kane would commit such a crime. It’s difficult to comprehend a woman would concoct such an allegation. Perhaps everyone can agree that there will be no winners.

It is, however, time to respect the rights, privacy, and veracity of the alleged victim. It’s also a great time to confront the bro/rape culture.

Like I said, we don’t know if anyone’s being charged, or with what. We don’t know who the victim is and what her injuries are, and we should keep it that way. We should also avoid and condemn any victim-blaming and slut-shaming whenever we see it. Any more questions? Email buffalopundit[at]gmail.com and follow along on Twitter @buffalopundit.

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