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What’s left to say in Duke rape case?

Filan: Accused could become poster boys for justice

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Susan Filan
Senior legal analyst

I am writing yet again about the Duke lacrosse rape case. Can you believe we are still talking about this case? What could possibly be left to say?  

The reason I think people are sick of hearing about it is because most people have now made up their minds about this case, conclusively in favor of the players. There seems to be no case left against the three accused.

Initially, this case grabbed us by the throat and we glued ourselves to it because it appeared to be a shocking case about rape, class, gender, privilege, imbalance of power, rival schools, and stunning abuse by spoiled athletes at a prestigious school. Only now, perhaps we feel a bit ashamed because it sounds like the three young men accused have been falsely accused. While we initially feared that there may never be justice for the female, African American victim, who worked as an exotic dancer at a rival school, we now fear there was an injustice done to the three accused Duke lacrosse players.  

In an initial zeal for justice, District Attorney Michael Nifong, committed himself to making sure this victim was treated fairly and got her day in court. In so doing, the D.A. made some serious missteps with the media. And while those may have been initially forgiven, there were further gaffes and errors which compounded the original problems.  

The DNA failed to link the accused to the accusers. I was still not critical of the case because often we have to prosecute rape cases without DNA relying only on the victim’s testimony. The victim had changed her story several times, but I thought maybe she was so traumatized, inconsistencies may be explainable and understandable. One of the players had an alibi, but I am skeptical of alibi defenses in general. I thought the timeline had not yet been established and was too fluid to say for sure he was cleared. I wanted to wait and see how the alibi evidence played out. It was interesting, but not yet airtight in my mind.  

But here is where you lost me. Once the accuser said she could not say for sure whether she was even raped, resulting in the rape charges against the three defendants being thrown out by the D.A. in a surprise move just before Christmas, there was no longer any reason left to continue to prosecute this case.

Two charges are still pending against the three defendants: Sexual assault and kidnapping. In North Carolina, in order to prove rape, the victim must have been sexually assaulted by a penis. Once the accuser was no longer able to say that she remembered whether she was in fact penetrated by a penis, after stating in great detail how all three had raped her anally and vaginally, I thought the case was done.

I hate to say this, but I am now left wondering whether the two remaining charges conveniently conform to what little evidence is left: If she was not penetrated by a penis, that would explain why there is no DNA and no sperm or semen belonging to any of the accused, or for that fact, any member of the Duke lacrosse team. She had stated earlier that her rapists were not wearing condoms.

I sincerely hope that we don’t have a situation here where the charges are designed to conform to the evidence, once her original story could not be corroborated by the forensic evidence.  

The real problem now is that the prosecution’s case has completely crumbled and appears to be a complete hoax. If the accuser cannot testify as to whether she was raped because she cannot remember, then the damage to her credibility is so severe it warrants all the charges being dropped.  

This critical blow to her credibility comes amidst serious other problems with the case. The case has always been a difficult case to prove at best, but I was always willing to take the position that it had a right to proceed to trial because once a victim makes a complaint, it is not up to the D.A. to play judge and jury as to her credibility. 

A rape case without any forensic evidence is not the best case, but it is so often the kind of cases we have to try. The perfect rape case is a credible victim, a DNA match, hair and fiber matches, and any other forensic evidence such as fingerprints. But most cases are not like that. They are classic “he said, she said” cases, and all a prosecutor can do is put the victim on the stand, let her withstand cross exam, and ask the jury to decide whether they believe her. If they believe she was raped, do they believe the accused raped her?

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