The defense is in full swing in the Duke University rape case. Forget about cameras in the courtroom. The cameras have replaced the courtroom.
One network has exclusive photos of the accuser, released to show her supposedly smiling, except her face is covered to protect her “privacy,” (an absurd notion at this point), not to mention a total contradiction of the justification for releasing the picture in the first instance.
Another network has one of the accused’s lawyer’s doing a full alibi defense, complete with time lines, ATM deposit slips, phone records, and the testimony of a cab driver.
Meanwhile, all you have to do is type in “Duke accuser’s name” in your Google search, and you’ve got it. So much for privacy.
The commentators are out in force along with the lawyers, almost all of them having concluded that the prosecutor is playing politics and the victim is a liar and a whore. After all, it was an escort agency that sent her, I read five or six times.
Bob Bennett, the lawyer famous for his defense of Bill Clinton in the Paula Jones case, and retained by the friends and family of the team to get their “message out,” has been on the case for a little more than a week; if any of this is his handiwork, they’re certainly getting their money’s worth.
To be sure, no one has explained why a woman would leave her cell phone, makeup case and money in the bathroom, but those are just details. According to the defense, she was drunk, and polishing her nails. Polishing her nails? There must be a better explanation, but that’s what a real trial is for.
This is obviously a nightmare for the young men who have been charged, if they are innocent. But before we can know that, the system has to work its way through. We have yet to hear the prosecution case, yet to hear from the woman directly. Until we do, how can anyone reach a conclusion? Once we do, there will be plenty of time for appropriate action.
In the meantime, consider the messages that are being sent by the behavior of the various parties to date.
Let’s start with the team parents, who should be furious with their sons for blowing their season and embarrassing their school. And yet apparently not one parent, not one, has said to her son, “you go in there and tell the police the truth about what happened.”
Yes, I know the Fifth Amendment says criminals don’t have to talk. I teach criminal law. But what are we dealing with here? The mafia, or a sports team from a first-class university. Instead, they hire them lawyers to trash the victim and the prosecutor.
And what about the message to all the legitimate rape victims out there? I don’t know if the accuser here is telling the truth, but neither do all the people who have been trashing her with a vigor I have never before seen in the 25 years I’ve been writing about and teaching rape law.
What this kind of “trashing the victim” does is to reinforce the worst of the history of rape law, which is a history of both racism and sexism, in which the most serious offense was the rape of a white woman by a black man, and the least serious the rape of a black woman by anyone.
Moreover, it wasn’t so long ago that “exotic dancers” were for all intents and purposes “unrapeable.”
The second question I was asked in the back seat of the Boston police car after I was raped (the first was the race question), was whether I had anything embarrassing in my past, meaning any kind of sexual history I wouldn’t want brought out by a defense lawyer. It is only in recent years that reformers have succeeded in shielding women from the worst aspects of the second victimization that a courtroom trial used to entail.
But nothing protects a victim from public humiliation in a high profile case, especially when the press allows itself to be used, as it has been here, and when people who know very little about this area start speculating, as they’ve been doing with abandon.
The District Attorney is playing politics, the commentators scream. How do they know that? Because they’ve bought the defense case, without hearing the other side, and if you buy the defense case, why other than politics would you indict innocent men? But why not just wait until both sides have their day in court, and turn down the heat?
The prosecutor, initially under pressure for failing to act swiftly, made the mistake of talking early, saying he was convinced that a crime had occurred. Then he decided to shut up, which is the right thing to do, and save it for court. That has given the defense, and some of the know-nothing commentators, a clear field.
The way things are supposed to work, the defense should have presented its evidence to the District Attorney before he went to the Grand Jury seeking indictments; did they? Did he find it unpersuasive? Does he have another timeline, or might this be a case where the woman was indeed raped, but did what I did and what so many women do, which is literally to close your eyes and not look, so that you can’t make the best identification afterwards (another reason why the Code of Silence becomes so treacherous).
Do women lie about rape? Occasionally, but no study has ever found that women lie about rape any more often than men lie about other crimes. Why would they, given the stigma that is still attached to victims, and the humiliation involved in pursuing a complaint?
Is there anyone who would trade places right now with the woman in the Duke case, assuming she is telling the truth?
I asked a roomful of rape experts, during the middle of the Kobe Bryant case, whether they would have called the police if it were their daughter who had come and said she were raped by the basketball star and almost to a one, they said no – not because they didn’t believe her, but because they wouldn’t put her through the ordeal.
If this woman is lying, she will not only be humiliated publicly but could be prosecuted criminally. Her life will be ruined. It would be far far easier to admit you were drunk.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.
Estrich's books include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regulalry on the Fox News Channel.