Whither the Duke Rape Case?

Tuesday , July 11, 2006

By Wendy McElroy


The three Duke University students accused of raping a woman in March are not expected to stand trial before Spring 2007. Indeed, among the uncertainties surrounding the case is whether the trial will occur at all or whether charges will be dismissed.

Nevertheless, the preliminary debate that raged like wildfire through the media has changed society's frame of reference for viewing sexual assault cases. For some, the Duke case has changed how they view the criminal court system itself.

It is important to sort through the certainties, questions and probable impact of the Duke case.

The certainties are the easy part. Three young men face criminal charges; their trial has become a key aspect of the district attorney's re-election campaign; their accuser is being accused of making false accusations on one hand and championed by victim advocates on the other.

The questions are meat for informed speculation.

Will a trial occur?

Duke law professor James Coleman, who chaired a committee to investigate Duke's men's lacrosse program, is among those calling for the appointment of a special prosecutor.

He questions the impartiality of prosecuting District Attorney Mike Nifong. It is widely assumed that a special prosecutor would dismiss the case.

Two other turns might cause a dismissal. First, Nifong could lose the November election for District Attorney. Lawyer and county commissioner Lewis Cheek is attempting to be added as an unaffiliated candidate to the ballot; his campaign is a specific challenge to Nifong's conduct in the case.

Second, the accuser who has been in hiding might refuse to participate in a trial. Normally, this would result in charges being dropped, especially in a case that rests upon the accuser's testimony rather than forensic evidence. Nevertheless, the state has the option of proceeding.

If a trial does proceed, is a rape conviction feasible?

The opinion of legal experts seems to be an overwhelming 'no.'

For example, FOX judicial analyst Judge Andrew Napolitano commented upon the significance of the case's negative DNA evidence, "No prosecution has been successfully made since the onset of DNA where DNA actually proves innocence and this prosecutor, I'm sure, ought to know that."

It is important to remember, however, that the accused are charged with three felonies, including kidnapping and sexual assault. According to the Department of Justice definition, sexual assault includes "a wide range of victimizations" which "include attacks or attempted attacks generally involving unwanted sexual contact between victim and offender. Sexual assaults may or may not involve force and include such things as grabbing or fondling. Sexual assault also includes verbal threats."

In North Carolina, it is a second-degree sexual offense to engage in "a sexual act with another person" who is "mentally incapacitated or physically helpless."

Even if the rape charge is dropped, a prosecution could proceed. Nifong could argue that the accuser was incapacitated and helpless due to alcohol or drugs and, thus, she was sexually assaulted.

If all charges are dropped or if the accused are acquitted, can the accused young men sue Nifong for malicious prosecution?

The answer appears to be, 'perhaps.'

In Buckley v. Fitzsimmons (1993), the Supreme Court considered a suit for damages against "prosecutors for fabricating evidence during the preliminary investigation of a highly publicized rape and murder in Illinois and making false statements at a press conference announcing the return of an indictment."

The Supreme Court held that a prosecutor's immunity against being sued was not absolute but qualified. One of qualifications was that "statements to the media… are not entitled to absolute immunity. There…[is] no common law immunity for prosecutor's out-of-court statements to the press, and…such comments have no functional tie to the judicial process just because they are made by a prosecutor. Nor do policy considerations support extending absolute immunity to press statements…"

In an article entitled "Why The Defendants In The Duke Lacrosse Rape Case Can - And Should - Sue Durham's District Attorney For Malicious Prosecution If They Are Acquitted," attorney and legal analyst Jonna Spilbor observes that the accused "must hinge their claim [against Nifong] on his statements at press conferences."

They will have to demonstrate that, during the 70-some interviews Nifong gave before indicting the accused, "he made knowingly false or misleading statements -- mischaracterizing evidence, or omitting to mention important evidence favoring the defense. Thus, the question for the defense becomes this: What did Nifong know, and when did he know it?"

Every question posed seems to lead to more debate and confusion.

But one thing seems clear; the ground of discussion about sexual accusations has shifted in several ways.

--Media coverage of the Duke case has changed dramatically and undoubtedly reflects a similar shift in public opinion. Initially, the guilt of the accused was generally assumed, but that assumption have been slowly reversing.

For example, shortly after their indictment, Newsweek slapped mug shots of the accused (Seligmann and Finnerty) on its cover. Now its "different" tone is captured by a recent article entitled "Doubts About Duke" or, as bloggers retitled it, "Newsweek Dumps Nifong."

--The issue of false accusations is being vigorously debated. For years, the claim that "women don't lie about rape" served to silence skeptics who didn't believe an accusation should be given automatic credibility. They are no longer silent and a spotlight now shines on this under-discussed problem in the legal system.

--Some media are extending the same sympathetic treatment to the accused that was formerly reserved for accusers. This is particular true of Reade Seligmann who still awaits trial despite having an apparently iron-clad alibi. CBS News recently ran an interview with Seligmann's mother in which she glowingly praises her son and poignantly describes the devastation of her family.

The essence of the shift is this: accusations of rape will be viewed more skeptically, with emphasis placed on evidence.

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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