[Update] Supreme Court Won't Review Duty To Cheer For Your Rapist

Rakheem Bolton

Rakheem Bolton

Originally published May 6, 2011.  The Supreme Court has declined to take the case of a Texas high school cheerleader who was kicked off the squad after refusing to cheer for the basketball player whom she alleges raped her.  The Fifth Circuit ruling not only upheld the school’s right to punish her for refusing to cheer, but dismissed her suit as frivolous, requiring her family to cover the school’s legal fees.  The victim, who was 16 at the time, was allegedly raped at a party by Rakheem Bolton, one of her high school’s star athletes.  Though Bolton was arrested, he plead guilty to a misdemeanor assault, was sentenced to probation and community service, and was back on the basketball team.

When Bolton stepped up to take a free throw, the victim, known as H.S., crossed her arms and refused to participate while the team cheered his name.  School officials ordered H.S. to participate in the cheers, and when she continued to refuse, she was kicked off the cheerleading team.

Not only does this case represent a tragedy of criminal justice, with Bolton pleading guilty to an assault but not a felony and without serving a day in jail due in part to the backlog of DNA testing of rape kits, the civil suit is a gross perversion of the victim’s right to free speech.  H.S. was not on the sideline screaming obscenities at her rapist while he tried to take a free throw (which would be totally understandable).  She was simply standing quietly refusing to cheer for him.  She did not interfere with the basketball team or any other cheerleaders.  She simply stood there.

Yet, the Supreme Court declined to take the case and correct the Fifth Circuit’s assertion that H.S. was a “mouthpiece” for the school to “disseminate speech,” and that her “act constituted substantial interference with the work of the school.”   The highest court in the land couldn’t get four justices to vote to even hear the argument for why it might actually be reasonable to punish rapists and not victims.

Update 9/13/2011: After being ordered to pay $39,000 in court costs for filing four frivolous claims, the plaintiff in this case won a small victory when the 5th Circuit has now overturned the finding of frivolity on the plaintiff’s free speech claim.  Three other arguments based on denial of liberty, property, and equal protection and due process violations were upheld as frivolous, and the case was sent back down for a new determination of costs.  Filing this case will likely eventually cost the girl and her family tens of thousands of dollars.  She is now 19 and has graduated from high school.

You can sign a petition to encourage the district to drop the claim for legal fees here.  You can donate to help the family pay the legal fees here.

Written by

Noah Kaplan is the Senior Executive Editor for Online Content. He is a 3L at Harvard Law School focusing on constitutional law and criminal procedure. He has interned at the Boston United States Attorney's Office and the Colorado Attorney's General's Office. Before law school, Noah taught 4th grade as a Teach for America corps member in Phoenix, Arizona.

Latest comments
  • What is wrong when the desire to win means we can rape, steal, injure. What can the reputation of this High School and Town be that supports bad acts to try to win basketball.
    Perhaps if those who pay for adds in the media that idolize sports figures will find a better place to put their money that supports true sportsmanship. Holds sports and celebrities accountable for the actions then we can change courts. Most I might remind are composed of men, how can there be justice?

  • 1) She was not “punished.” She was simply told that if she wanted to be a cheerleader, she had to lead cheers. It wasn’t a free speech case; just like football players can’t decide what plays they want to run, cheerleaders can’t decide what cheers they want to do. Could she refuse to cheer for a black player, and then cite “free speech” as her justification?

    2) The description of events cited here — “Though Bolton was arrested, he plead guilty to a misdemeanor assault, was sentenced to probation and community service, and was back on the basketball team.” — is misleading in the extreme. At the time she refused to cheer, he had not pleaded guilty, let alone been sentenced to anything.

    • Of course she was punished… removing her from the team or demanding that she cheer her rapist is horrific punishment. Heaven forbid victims refuse to continue being victimized — if they do, they should lose privileges — right?

      Let’s see….

      Ball player rapes girl — gets to keep his spot on basketball team, in fact victim is expected to cheer for him during games.

      Girl is raped — must either cheer her rapist or lose her spot on the cheer-leading squad.

      And you expect us to think this is in any manner reasonable? As soon as he was arrested, he should have been suspended from the team. Once convicted of assault, he should have been thrown off the team and thrown out of that school… preferably and carted off to jail. That his life got to continue along as if nothing happened, while her’s was turned upside down because of his decision to rape her is unjustifiable on any level.

      Clearly those at the school who made these decisions are more interested in winning at sports than they are the safety of their female students. What the rapist got was effectively a slap on the wrist and a “don’t worry, just play ball well”…. so what’s to keep him from raping again? What’s to keep other players from now thinking it’s some sports-related privilege to do so? How could the next girl come forward and file a complaint, knowing what was done in this instance? The administrators at that school who did that effectively declared open-season on raping girls at the school — as long as you’re good enough at sports any way. If another girl is raped after this, the administrators should be charged with encouraging it.

  • Is there any way to find out who this victim’s attorney is? There ought to be some sort of collection taken up to help pay for her fine.

  • I’m curious to know why the name of the victim was left out in this article when there is a full story on the incident written up in a magazine with her name and picture.

    That said, I think the school exercised very poor judgement in allowing the basketball player to continue to play on the team while he was undergoing investigation for rape. As Noah said, it is reprehensible that the school would place more value on a player’s athletic ability than his character.

    It is also disgusting that none of the witnesses to the alleged rape (according to the magazine article, there were multiple people in the room during the rape) would come forward and testify against the player. What kind of parents raise their children to devalue another human like that? That whole community- administration, teachers, coaches and parents, and players- should be ashamed that they’d allow this to go on.

  • Amazing how outrage can take the place of judicial reasoning…..

    This young woman cheerleader is part of a team which is cheering for a basketball team to win (encouragement). Why is she even present as part of the cheerleader team, if the basketball team playing involves her rapist?

    Obviously, she intended to make a public scene, instead of following the rules of her team (cheerleaders do not cheer for an individual player – they cheer for the entire team, personal matters aside.) But she nevertheless continues to sexually excite members of the opposite sex as she cheers, and then wonders why a player responds to her sexual expressions (free speech?) By definition, sexual response is not always controllable if the woman keep on stimulating the sexual response. That’s an aspect no one mentions here in this article, but it has great importance.

    • You can’t be serious — cheerleading is sexual and he couldn’t control himself because by being a cheerleader she was somehow “stimulating” him? We are each as human beings responsible for our own actions. The rapist is ALWAYS 100% responsible for their choice to rape — period. Trying to blame the victim is irrational, immoral, illogical and the action of someone who seems to think rape is somehow “okay”. There is no excuse for rape — EVER. The notion that she somehow asked for it simply by being a cheerleader in the first place… as little man tries to imply, is obscene at it’s core. The person doing something is ALWAYS fully responsible for the action, no one else.

      There is no justification for rape, ever.

      That the school would do this to this girl is also obscene. When sports override basic humanity, something is seriously wrong. Those responsible for doing that should be forced out of their jobs — there’s simply no excuse for that lack of core human values.

    • “Little Man”,

      Your name describes you quite well. I have never met a man like you, who would defend a rapist on the grounds that he was sexually excited by a cheerleader and thus could not control his response! What universe are you living in? I had hoped in the year 2011, that a female rape victim would stop being blamed for her rapist’s reprehensible (and quite controllable) actions. If you walked down the street wearing shorts, and you (yes men are raped too) were jumped by a group of men or women and were gang-raped, how would you feel if the defense for the rapsists claimed it was your fault because your shorts stimulated their sexual response?? Seriously… your argument is not only horrifying for all mankind, but you defy all logic.

  • I forgot the title, but there was a science fiction book about a future in which blacks had gained so much political leverage over whites that a white girl was legally prohibited from refusing to date a black man, or to have sex with him if he should desire it. In the story, a white teenage girl was taken to court for making such a refusal, and she was found guilty and sentenced to be raped by black men.

    I thought that was unbelievably weird, at the time. But it seems that things really are moving that way in the courtrooms of the real world.

    It’s enough to make someone want to overthrow the government and kill the evil people responsible for what it has been doing to us.

    The federal courts in general, and the US Supreme Court in particular, have been doing some odd things lately. The SCOTUS met in secret with Barack Obama during a time when Obama was involved in litigation regarding his eligibility to be president pending before that same court. Other courts have been working up precedents that might be seen as preparation to shield Obama from the sins of his past; e.g., using fictitious or other people’s social security numbers.

    • Seriously? This isn’t some racial issue — it’s a women’s issue. It doesn’t matter what the melanin levels in the parties’ skin is, the fact is that a girl was raped and some jerk at the school decided she should have to cheer her rapist on, or lose her spot on the cheer-leading squad. I don’t see any reference to any threat of him losing his spot on the team…. apparently raping a fellow student is less of a crime than refusing to cheer for a rapist… your racial fear-mongering is irrelevant to the issue at hand. Had the races been reversed and the same happened, it would be just as heinous. Had both parties been the same race, it would be just as heinous. There is no racial combination that would alter the nastiness of this scenario in any manner, therefore it is not relevant to this in any manner.

  • I’ve heard that the cheer that the cheerleader refused to chant was:

    “TWO! FOUR! SIX! TEN! Come on, Rakheem, put it in!”

    The rapist was trying to make a free throw during a basketball game. Probably, the girl became concerned that making that cheer would imply her consent to the rape.

  • David your ignorant rant and sad pathetic attempt at demonizing the black race and implying some fraudulent activity on behalf of the President and drumming up some fictious book that only exist in your insecure mind has no relevance to this story. With that said unless i missed it on this article this boy was never proven to be a rapist, you just aren’t offered a misdimeanor and probation for nothing especially rape so we may not have enough fact to say he is a rapist . He did plead assalt and should not have been allowed to play but someone on here pointed out this was after the fact so the school can’t be held accountable as they can’t punish someone on an accusation what if she was lying how far would that have been. Since he pleaded guilty to assault hopefully she was reinstated on the team and he is off.

  • As a counselor, I have supported women who have taken the courageous step of coming forward to report rape. I have also supported women who reported past rape and had not processed the trauma for fear of judgment, shame, and for taking on responsibility of the assault. Underage drinking is another factor that kept them from coming forward for fear of others challenging their credibility as well as feelings of shame. Trying to forget their ordeal only later led to panic attacks, relationship issues, or even PTSD from “triggers” without realizing their symptoms stemmed from the secret trauma they harbored (and for some women, they’ve kept this trauma secret for many years). Cases like this one only reinforce the stigma victims experience when coming forward with their stories. This stigma is so unfortunate because it takes so much courage to face the trauma and process the violation in the first place and this is when they need the support the most.
    As for assuming H.S. was a liar: the semen was in the condom, he and others fled from the scene, and how many people would barge through a door unless they thought it was an emergency? A rape can be premeditated. Who is to say he and the others involved hadn’t encouraged her to get her drunk? This was a situation in which the odds were on her side to have support…she had WITNESSES. The lack of support from her school for her silent protest is shocking. The injustice that occurred in the presence of overwhelming evidence is just plain dereliction of duty. Punishing the sexual assault survivor for reporting a heinous crime, dismissing her credibility, and silencing her cry for help is exactly what assailants’ desire, which only silences the victim and future victims from coming forward. Good for her family for continuing in their quest for justice. We should be commending her bravery for pressing charges on her assailant. It is a small victory towards the many steps she will take to process the trauma and hopefully one day restore her sense of self, security, and safety.

  • Retract my statement of “semen was found in the condom” with “the rape kit verified a sexual assault occurred” since one could argue the condom may have been from a previous encounter that evening.

  • High School sports in Texas are considered “The Holy Grail”. The fans are fanatical, the school reaps huge financial benefits, both financially and academically in the form of monies from alumni, fans, sponsors who advertise in their yearbooks, scoreboards, and just about any area where they can post a sign. Failure to advertise by local businesses results in a ‘by mouth’ boycott that can make or break a small business. When they win and make it to regional, or State Finals, recognition of the school is statewide. Bonuses and salaries are tied to performance for many of the coaches/teachers involved. The same recognition applies when their players receive high profile scholarships to major colleges. Anyone who dares impugn the reputation of any jock who is vital to winning championships is ostracized and shunned by the community for the most part. Sympathy is shown in private, but not in public for fear of becoming a target themselves.

    What is especially disturbing is the fact that other blacks, (like myself) trot out their own ‘Holy Grail’, racism to the point of ignoring reality, the truth, or anything else in the desperate need to reinforce their belief that the white man is out to get blacksNo matter the crime, if its black on white violence, somehow it becomes the victims fault or that no matter the overwhelming evidence of their guilt, they should be found innocent because of the color of their skin. I ask my black brethren, “is that not the exact description of what we blacks were up against until the dawn of the Civil Rights era?” Why is it that most blacks feel that its a tit for tat exchange and now its the whites man turn? No human being should be slighted for their skin nor given preferential treatment for the same reason.

    I can also say with some certainty, that had the suspect been white, the school would have responded the same way if he was a star athlete. I however also must say that whites in general fear that they must treat us differently lest we use the dreaded R word. It is seen everyday in the workplace of any major company, including mine. Where a white would be terminated immediately for misconduct, a black employee receives written warnings, and in our case cannot be fired unless approved by Human Resources. The reason being is to avoid the almost certainty that when the employee does get terminated, it was, in the employees case, racism and the resulting law suit.

    Until athletes in general are no longer considered above the ordinary student, and that when overwhelming evidence of a crime has been committed, that the assailant receives a sentence commiserate with the crime, and the the victim is treated as a victim, not as criminal when they are raped. Color should not blind us to the reality of the situation.