Is 'Duke' Case Headed to Civil Court?

Tuesday , May 16, 2006

By Wendy McElroy


A man stands in the background of the Duke Lacrosse 'rape' case…watching. While the alleged rape of a black woman by three wealthy, white male students remains in criminal court, he is not likely to step forward.

He specializes in civil cases, and a 'victim' who seeks monetary damages in civil court usually waits for criminal proceedings to conclude.

Even at this early stage, however, the accuser's mother is "very much interested" in "getting [him] involved."

Nicknamed "the Giant Killer," attorney Willie E. Gary is a litigator renowned for winning huge settlements. In 1995, for example, Gary won a $500 million verdict against the funeral home company Loewen Group on a contract claim that was worth less than $10 million; the award was almost 20 times the damages requested by plaintiffs.

Perhaps hoping for similar legal magic (according to media reports, all three defendants come from backgrounds of considerable wealth and privilege), the parents of the accuser met with Gary in April. According to Essence — a monthly magazine geared toward black women — the meeting was facilitated by civil rights activist Rev. Jesse Jackson.

"It appears that a grave injustice has been done. And if I can help in any way to level the playing field, then I'm willing to do it," Gary is quoted as saying in the article.

There is no indication that the accuser has spoken with Gary. At the moment, he acts only as a family adviser. Nevertheless, the parents seem to be laying groundwork to make a civil bid more publicly palatable.

Public opinion can be a large bargaining chip in obtaining a lucrative settlement or judgment but media attention must be the proper kind. Earlier, the parents spoke freely to the press; now they seem to be selecting their exposure with care.

For example, this month's Essence features three articles on Duke written by journalist Kristal Brent Zook. Each is sympathetic to the accuser. One is entitled "Family Defends Daughter's Painful Past."

A second, entitled "Nowhere to Turn," depicts the accuser as living in terror. The third is basically an announcement of Willie Gary's appearance in the case; it concludes by stating that the parents "worry that their daughter may…need additional legal guidance."

Whether the Duke case becomes a civil suit is separate from what happens in criminal court. Criminal and civil courts express different paradigms of law. Criminal law prohibits and punishes specific acts, such as rape; its general purposes are punishment, deterrence, and rehabilitation.

Regarding rape, civil law deals in torts or harms inflicted by one person upon another; its purposes are compensation for actual damages and, in the case of intentional harm, compensatory and punitive damages as well.

A "guilty" verdict in criminal court can be used to establish liability in a civil one but if the verdict is "not guilty" or the charges are dropped, a civil case can proceed independently.

In the Kobe Bryant case, for example, rape charges stemming from his June 2003 encounter with a 20-year-old woman were dropped at her request. A civil suit and out-of-court settlement followed. Such settlements are not necessarily admissions of guilt. After months of media blitz, Bryant may have wanted to end the ordeal rather than to face the cameras allowed in civil court.

Will the accused Duke students face the same choice?

In the few years, the practice of using both criminal and civil courts to address the same offense has increased substantially. There are at least three reasons.

First, due to decades of advocacy by litigious feminists, it is now common to address criminal offenses such as sexual abuse or domestic violence in civil court.

Second, civil suits can be lucrative.

Third, they are easier to win a civil case; standards of evidence and other legal protections enjoyed by a defendant are significantly lowered in civil court.

The likelihood of a civil proceeding in Duke hinges on a wild card: the accuser. It is far from certain that she will testify in the ongoing criminal case let alone pursue what would be a much more public civil proceeding.

In 1996, she filed another rape complaint against three men but ultimately declined to pursue the case. Currently, she is refusing to speak with either the media or Gary.

Clearly, her parents wish to explore a civil proceeding. Gary is conspicuously available. Mark Simeon — the attorney for Kim Roberts, the "2nd stripper" at the alleged rape scene — wants a civil suit.

Newsweek commented on Simeon, "in 2002 he ran for district attorney and lost. He sees Roberts's case as an opportunity for him…And he wants to put together a team to represent the alleged rape victim in another civil suit, in order to, he says, 'help make her whole'."

Presumably, Roberts would also welcome a civil suit. On April 19, she notoriously emailed the New York 5W Public Relations firm to say, "I'm worried about letting this opportunity [the Duke case] pass me by without making the best of it and was wondering if you had any advice as to how to spin this to my advantage."

A civil court settlement offers definite advantages.

The only person left to hear from is the only person who matters: the accuser. Criminal charges are brought in the name of the State but civil suits must be brought in the name of a plaintiff.

Will she pursue a civil option? In a normal world, I'd bet against it, but everything in the Duke case is Alice-through-the-looking-glass.

Wendy McElroy is the editor of and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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