A Very Ugly Word

“Rape” is an ugly word. It connotes a depraved act of violence that is only slightly less horrible than murder. It is also a word that can permanently harm someone’s good name when it is connected to it. This is of course one of the reasons we live in a country where there is a presumption of innocence in our courts. The law holds that anyone accused of a crime is innocent until proven guilty beyond a reasonable doubt. Of course there is another side of the word rape. And that is the side of a violent crime, forced sexual assault and the horror and humiliation that accompanies this with its victims.

In Durham NC three young men now stand formally accused before the law of rape, forcible sodomy and assorted other crimes. If convicted they face the very real prospect of spending a substantial part of the rest of their lives in prison. The case of the so called Duke Lacrosse Rape seems to have captured the country’s attention the way these sensational crimes do. Never mind the fact that there are far more newsworthy items out there. This case will continue to be dissected ad infinitum until and probably even after it is resolved, one way or the other.

Since this case broke in the news we have seen the local DA declare with loud indignation that a horrible rape occurred and that he was going to bring those responsible to justice. What has followed however has been one revelation after another, almost all of which have been harmful to the prosecution's case. After several press conferences the DA stopped talking to the press and the media. So now we are getting pretty much all of our information from only one side in this case. Acknowledging that we are getting only one side of the story, a brief examination of the facts we have might be helpful.

• The time line as presented at least initially by the prosecution is not supported by time stamped and dated photos from the night of the party.
• At least one of the defendants (Reade Seligmann) appears to have something very close to an iron clad alibi placing him at a bank and later entering his dorm room during the time period when he is supposed to be raping the alleged victim.
• Extensive DNA testing has produced not one trace of semen, hair, or tissue on or in the body of the alleged victim that can be tied to any of the three defendants or any other player on the Duke lacrosse team. This despite the fact that she was supposedly raped and sodomized repeatedly by three men for over a half an hour. A broomstick was reportedly used for at least part of this. But was there no other contact? Sodomy can be performed by objects. Rape as a matter of law requires penetration by the male appendage into the vaginal area.
• In the most recent indictment of David Evans (the team captain) some trace DNA was supposedly found (among others) on part of a faux fingernail fragment in the bathroom trash can of the house rented by several members of the team including Mr. Evans. The trace DNA apparently does not exclude Evans though there was no positive match. Even if it is his DNA, is it now a crime to discover that a young man’s DNA might be found in the bathroom trash can of his domicile?
• The alleged victim has been shown by DNA to have had intimate relations sometime on the night of the alleged rape. However the DNA excludes all of the lacrosse team. The media is reporting that the DNA is that of her boyfriend.
• Police reports indicate the alleged victim was drunk but otherwise fine when they first came upon her and no mention was initially made of rape.
• The alleged victim’s friend and co-worker did not initially support the claims of rape and publicly doubted that anything happened. She has since changed her story and now supports the alleged victim’s version of events.
• Duke University Police reported that their counterparts in the Durham PD had serious doubts about the credibility of the alleged victim. She is supposed to have changed her version of events several times, and by more than minor details. Media reports have her first claiming that she was raped by twenty (!) men.
• There have been no reports of any witnesses supporting the alleged victim’s version of events. This means that barring forensic evidence it is her word against theirs.
• The alleged victim has been reported to have had trouble with the law in the past.
• The alleged victim has made an eerily similar claim against three other men in her past. That accusation was not pursued for reasons not yet made public.
• David Evans (just indicted) reportedly offered to take a polygraph test conducted by the DA’s office or the Durham PD. This offer was declined. The player then reportedly had a polygraph conducted by an independent expert (a former FBI agent) which his lawyer claims he passed. It should be noted that polygraphs are not admissible as evidence in criminal court. However they are a widely accepted and used investigative tool by law enforcement agencies. Has the alleged victim been polygraphed?
• The first two defendants were identified from a photo array that consisted ONLY of pictures of the lacrosse team. This is likely to be considered a tainted ID.
• The most recent defendant was not positively identified by the alleged victim because she said he no longer had his mustache. The only problem is that Mr. Evans has never had a mustache.
• The alleged victim is in a profession that fairly or not is likely to weigh against her in a court room, especially in the so called Bible belt. This of course is not evidence. However it is certainly a factor in the question of whether or not the case can stand up in court.

As some of my readers may be aware, during my time in the Navy I did some work for the Judge Advocate Corps (JAG). So I have some familiarity with criminal law. Rape cases are by their very nature hard to prove. Witnesses are rare, and often it’s a he said / she said situation. The credibility of the victim is commonly attacked by defense council. With the advent of more advanced DNA and forensic science things have improved somewhat for prosecutors. But it’s still usually an uphill battle barring a confession or some other evidence. In this case I think the better analogy would be trying to climb Mt. Everest.

I want to be very clear in pointing out that I am not saying a rape did or did not occur. The unhappy fact is we may never know with any certainty what happened. What I am saying is that proving in a court of law beyond reasonable doubt that there was a rape and these young men did it, is going to be near to impossible unless the DA has an ace hidden up his sleeve. Of course in real life (versus Hollywood) you can’t keep any cards hidden in criminal cases. There is a nasty rule called “discovery” which required the prosecution to turn over all of their evidence to the defense. That’s not just the evidence of culpability or guilt, but also exculpatory evidence. So where does this leave us?

Reminding everyone that we are still getting only one side of this story, so far it’s not looking good for the People’s case. Put bluntly; this case has more holes than Swiss cheese. I seriously hope that the DA has something more than what we have seen so far. If he does not he may be setting himself up for a serious professional embarrassment. But more importantly, I have to wonder why a DA would indict when there are so many inconsistencies in the case. All of this is of course a moot point to a young woman who may have been brutally gang raped, as also to three young men whose lives have been devastated, maybe permanently. Those in positions of public trust with great authority have a moral duty to be very careful in the use of the powers of their office. Rape is an ugly word. And “innocent until proven guilty” only applies in a court of law.