No Justice for McKinney or Duke 'Rapist'?

Published June 13, 2006

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There ain't no justice!

To me, that conclusion unites two otherwise distinct legal matters: Rep. Cynthia McKinney's alleged assault of a police officer, and the Duke lacrosse team 'rape' prosecution.

The cases are examples of the law treating people according to who they are and not upon the evidence.

A fundamental principle of civil society is that people are equal under the law without regard to race, gender or other status. The content of law is a mitigating factor; an unjust law that is evenly applied is still unjust and reasonable people applaud anyone who escapes its application. But that caveat doesn't apply to McKinney or the Duke case; prohibitions against assault and rape are just and should be applied equally.

As it is, McKinney and the Duke case shatter the expectation that the law judges people based on evidence rather than politics.

The McKinney matter is virtually uncontested. The Georgia congresswoman assaulted a police officer as he was enforcing security on Capitol Hill. The average person would have his or her face slammed against the floor as officers descended en masse to make a felony arrest.

With McKinney…no slamming, no floor.

The incident occurred on March 29; both the officer involved and the Fraternal Order of Police pursued charges; the case went to a Grand Jury for indictment on April 5. Nevertheless, a headline in last week's Atlanta Journal Constitution declared, "McKinney probe enters 3rd month." The article stated there is "no hint from the federal prosecutor about how much longer it will take to settle a case that legal experts said should have been wrapped up in a matter of days."

The office of U.S. Attorney has refused comment.

Chuck Canterbury, national president of the Fraternal Order of Police, offered an explanation, "Right from the start this U.S. attorney has handled this case differently from every other case, and it's because she is a sitting congresswoman."

Now there are rumors of a "sweetheart deal" that would allow McKinney to avoid indictment. The congresswoman appears to be exempt from the very laws she participates in passing.

The Duke 'rape' case also demonstrates the inequitable application of law. Because of who she is, McKinney may receive legal immunity for committing a public felony. On the other extreme, accused Duke 'rapist' Reade Seligmann seems to be stripped of the constitutional and procedural protections that hardened, repeat criminals take for granted.

For example, the burden of proof constitutionally rests on the prosecution to establish guilt rather than on the defense to establish innocence.

The 20-year-old Seligmann is one of three Duke University students arrested for raping a woman hired to strip at a party on March 13. Credible evidence is or should be required to arrest anyone on such a devastating charge.

What evidence exists to prosecution Seligmann?

--The accuser's account has changed dramatically over time;

--The 'line-up identification' of him came from choosing between photos of others at the party and is tainted;

--All of the party-goers deny a crime occurred;

-- A 'second stripper' on the scene initially called the report of rape "a crock"

--DNA tests show no link to Seligmann and -- given the allegations of struggle -- the absence is exculpatory;

--Stories of the accuser's sexual activity prior to the party throw all sexual evidence into question;

--a much-discussed medical exam that allegedly showed evidence of rape may, in fact, indicate no such physical trauma.

The proceeding facts alone should mandate dismissal of charges against Seligmann for lack of evidence. But Seligmann can provide an even more compelling defense: an alibi. Seligmann can account for almost every moment during which the alleged rape occurred.

Time-stamped party photos and a neighbor's testimony indicate that the alleged rape must have occurred between 12:10 and 12:30 a.m. The On Time Taxi company confirms receiving a call from Seligmann at 12:14 a.m. A cab driver picked him up a block and a half from the party at approximately 12:19.

At 12:24, time-stamped photos show Seligmann drawing money from an ATM. This means Seligmann had approximately nine minutes in which to commit a brutal rape that included several sex acts, clean up and compose himself, then take a walk. And, oh yes, he also interrupted the brutal rape to make a phone call.

Why is his life being ruined by the shadow of an impending trial?

Just as McKinney may be legally immune because of who she is, I believe Seligmann is being persecuted for what he is. From the beginning, the Duke 'rape' case has been portrayed as a racial issue; white boys raped a black woman. Stories lingered on the wealth of Seligmann's family thus casting the case as one of elitism; the rich can violate the law without consequence.

Feminist editorials declared that women do not lie about rape, thus convicting him in advance and despite evidence.

In short, I believe Seligmann is being prosecuted because he is a rich white male.

Added to the mix is the ambitious District Attorney Michael Nifong who used a blitz of media appearances to stir up public opinion in favor of the accuser. He rode the public opinion back into office through an election that was pending.

One casualty of both McKinney and Duke is the public expectation that the legal system expresses justice.

Restoring confidence is simple. Indict McKinney. Drop charges against Seligmann. Disbar Nifong. Or, rather, it would be simple if politics were not involved. When politics enters, suddenly some people are above the law while other people are beneath it.

Wendy McElroy is the editor of ifeminists.com 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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