Unraveling the Duke Debacle

Last April, we were delighted to have special guest Sakara R. give a perspective of what is now commonly known as The Duke Rape Case. Sakara has written a follow up to that perspective, that is a reflection on how the situation has changed and what has been learned from it.

Read. Learn. Respond.

Categories
Rape
Duke
Black Issues

Looking Back

From the very first “Breaking News” report on CNN, the Duke Lacrosse team rape case has been as complex as any situation can get. Not just an accusation of gang rape, sodomy, forced oral sex and physical abuse, the Duke case was about race; a black accuser against three affluent, white team members, who happen to attend one of the most respected Universities in the United States.

In April 2006 I wrote an article for The SuperSpade examining not necessarily the Duke rape case directly, but instead the ripple effect it created. Most questioned whether or not the accused was telling the truth. Women of color understand how the rape of a black woman at the hands of a white man has historically gone unpunished. At the time, it seemed that evidence against the accused was stacked high. But no matter the evidence, the dynamics of this case made one thing clear-credibility will win in the end, not guilt or innocence.

A high-profile rape is not the same for a black woman, as it is for other women.

For this particular incident, race, stereotypes and racism jump to the forefront. For women of other races, to claim to have been raped does not include having one’s credibility questioned because of the credibility of another- Tawana Brawley. When the Duke rape case broke, it was less than 24 hours before every internet result found for the Duke Rape Case, was linked to the name Tawana Brawley, and thus linked to doubt. The idea that black women were more likely to lie about being raped was already casting shadows of doubt.

I wrote then:

Some of us may be too young to know the name Tawana Brawley- that is, until a 27-year-old black female student from North Carolina Central University stepped forward and alleged that she was brutally assaulted by at least 3 players of the elite lacrosse team at Duke University…Ms. Brawley, a young (15 at the time in the 1980’s) black woman from New York City, bravely stepped forward under the protective arms of Rev. Al Sharpton and relayed a horrific account of being abducted and brutally raped by 6 white men including police officers culminating in her being found bruised, bloodied, covered in human feces and dumped in the garbage. Her claims of sexual assault were nothing more than a successful albeit disturbing method of grabbing everyone’s attention. The fallout of her hoax (Tawana Brawley has never wavered from her allegations) carried long-lasting ramifications certainly even she never conceived possible at the time.

Six men were charged with Tawana’s rape, but never tried because of lack of evidence, including lack of physical evidence; if a 15 year old were raped by six men the physical evidence left from such an experience would be unmistakable and undeniable.

We thought we had that with Duke, ironically, because of the Tawana Brawley case- a case which truly has lived on in infamy, particularly in the legal field. Tawana’s case also mattered to rape advocates because it dealt of devastating blow to the advancements in law, advocacy and general understanding of what rape is and what rape does. In our male dominant society, it used to be next to impossible to have a man successfully investigated for rape, let alone charged or found guilty.

Knowing Rape

The history of rape (in American culture, not global) shows that up until around the 1950’s, rape just didn’t happen. The word was never used, and unwanted sex wasn’t even a consideration outside of unspeakable acts against children. For young adults and adults, couples married so quickly (whether they wanted to or not), and the general rule was that once a woman married a man, she gave him everything of hers, period. The definition of rape is “to take by force”, and since men ruled the legal system, and men literally believed that they “owned it”, rape didn’t happen. This is an example of why terms such as “sexism” and “gender oppression” exist.

In 2007 young men and women alike are taught that “no means no”. In the legal field we are taught that “no is a complete sentence that does not require further explanation or justification.”

Now, rape and all kinds of sexual assault are for the most part, taken seriously and prosecuted vigorously. But the road to justice is by far an easy one to travel. The crux of sexual assault cases lies in the physical evidence, and it is painstakingly retrieved from a woman’s body. Over time, medical professionals and law enforcement have found more and more places to look.

An evaluation for sexual assault is an indescribable, invasive and torturous experience. The last thing a rape victim wants is to be touched. The first thing she wants to do is get in the shower and wash her body off to somehow wash off the experience. But you cannot take a shower because the body is now the crime scene, the evidence and the witness.

There are three main categories for evidence in a sexual assault: physical evidence, DNA, and victim/witness account, statement or recollection. Physical evidence is not limited to a woman’s vaginal region or the place she was restrained- the wrists as an example. A woman who is held down and forcibly raped is likely to have visible trauma to her knees, thighs, vaginal area, hip bones and pelvis, ribs, elbows, shoulders, cheeks, brow, or skull. It does not take an all out physical battle between victim and aggressor to produce bruising in any of these areas, but instead little to no resistance, even tension and rigidness coupled with physical contact can produce bruising. Bruising, depending on the complexion of the victim, may not be visible right away. In addition, a rape crime committed by more than one perpetrator often results in external and internal vaginal trauma, and often times women endure an internal examination by way of speculum- often a point of overwrought emotion in hospital examination rooms for the physical and emotional pain which is unavoidably caused. Pictures are taken of any bruising, cuts, scrapes, or other visual evidence relevant to the investigation.

DNA evidence is not just about semen. Every article of clothing is collected as evidence. A victim’s fingernails are scraped out and various swabs and samples are taken from all over the body including from within the rectum and vagina. The victim’s hair is combed through and anything which comes loose is collected.

Rape kits are not always taken, as some women do not seek or outright refuse medical attention, but when a rape kit is taken, the situation is not just one of accusation, but one of medical diagnosis based on the evaluation of the body, thus law enforcement look to medical professional to conclude whether or not a victim was physically assaulted or not.

What we know now

Some may wonder why it is necessary to explore these details of rape and evidence, but the fact is it is core to evaluating what is left of what once seemed to be an iron-clad case. Again, from last April:

…witness statements (an observant next door neighbor) a time line that places her nowhere but the house rented by the lacrosse team captains, before going to the hospital by way of the nearby Kroger food’s parking lot and most important, a medical examination and rape kit that overwhelmingly point to physical as well as sexual assault, medical professionals who attended to her (and are specifically meticulous with this kind of evaluation) describe a level of emotional trauma and shock that could not be faked even an email from a teammate sent within an hour after the party broke up expressing a desire to want to have another party the following evening where he wanted to kill strippers and slice the skin from their flesh for sexual gratification lends itself towards “something happened that night” are all pieces of evidence the DA stands by.

In anticipation of a criminal trial and absent any statements or findings of fact, nearly a year later, this kind of seemingly rock-solid evidence has been whittled away by what we know now. Here are a few examples:

The accused: Reade Seligmann, Collin Finnerty, and David Evans

Witness statements: no one witnessed any forced sex or forced sex acts, nor did anyone witness any physical abuse towards the alleged victim; witness accounts that racially insensitive comments were yelled at the accuser are not, even if true, proof of sexual assault.

Ms. Roberts (the second dancer who was with the alleged victim) has given contradictory accounts. On March 22, she told the police that the rape accusation was “a crock,” and that she had been with the accuser for all but five minutes of the party. Later, though, she revised her story to the police and told National Public Radio that a rape “could have happened,” but that she had not seen or heard it (NY Times 2006).

Timeline: we know now that this includes having sexual intercourse before being hired for and attending the Duke party as an exotic dancer.

Medical examination: the nurse who assisted in collecting the rape evidence kit from the accuser states till today that the accused was severely traumatized at the time of the examination, and that there was noticeable, considerable, redness and swelling in the vaginal area. Records also indicate the alleged complained of pain in her hip and an inability to walk, and soreness and tenderness in other areas, including the rectum.

Before Sergeant Gottlieb’s notes were turned over to the defense, and before the judge’s order not to discuss the case, defense lawyers had argued publicly that the woman’s swelling and tenderness could have been caused by consensual sexual activity in the days before the Monday-night party.

Jarriel L. Johnson, a friend of the woman who drove her for escort service work, told the police that he had taken her to a half-hour job at a Holiday Inn on the previous Friday afternoon, to Platinum Pleasures on Friday night, to a Millennium Hotel for an hour on Saturday, and to another hotel on Sunday. The woman herself told the police that she had performed with a vibrator for one couple (NY Times 2006).

“I asked her if the exam was consistent with blunt force trauma, and she replied, ‘Yes,’ ” Sergeant Gottlieb wrote in the notes of his March 21 interview with the nurse. “She stated the victim had edema and tenderness to palpitation both anally and especially vaginally. She stated it was so painful for the victim to have the speculum inserted vaginally that it took an extended period of time to insert same to conduct an examination. I asked her if the blunt force trauma was consistent with the sexual assault that was alleged by the victim. She stated the trauma was consistent with the victim’s allegation.”

Dr. Manly, the sexual-assault specialist, found the woman’s head, back, neck, chest, nose, throat, mouth, abdomen, arms and legs all normal. The only “signs of physical trauma,” she reported, were three small, nonbleeding scratches to the knee and ankle.

A day later, the woman’s condition appeared worse. She went to a University of North Carolina hospital, where she had previously received care for chronic neck and back pain. Now, she reported that she had been “knocked to the floor multiple times and had hit her head on the sink” during a rape, Dr. Yvonne E. Lai wrote.

U.N.C. doctors observed a limping gait, and they confirmed that she had muscle tenderness and that her head did not have the full range of motion. They diagnosed acute pain in her knees, neck pain and contusions, and recommended crutches and ice packs (NY Times 2006).

Graphic email: The night after the alleged rape, one of the members of the Lacrosse team sent a disturbing email to teammates expressing a desire to host another party with strippers and that he wanted to kill them and cut their flesh from their bones while pleasuring himself was another disturbing piece of information, but not a damning piece of evidence that concludes beyond reasonable doubt that he was involved in a sexual crime.

Victim account: We know that this has changed in great detail no less than five times. First the accused stated that the rape went on for at least 30 minutes, but later changed it to 10 or 15. This alone could not conclude that any sexual assault did or did not take place as the tracking of time is not typically the most important thought running through a sexual assault victim’s mind. We know that she was initially unsuccessful in identifying her attackers; she insists one had a mustache yet none of the accused had facial hair at the time.

Intoxication: We know that the alleged victim claims she was not drunk when she arrived to the party, though she previously drank two beers and took a muscle relaxant. Her claim is corroborated by her associate Ms. Roberts. However, when she was found in the Kroger Food’s parking lot and approached by police, they reported that she was “passed out drunk”.

She told the police that she had had one or two large-size beers before the party and had taken Flexeril, a muscle relaxant. Both dancers said they were given a mixed drink at the party.

But investigators say that does not explain why the woman seemed so profoundly intoxicated. The other dancer, Ms. Roberts, told the police that her partner had arrived “clearly sober” — a description confirmed by a next-door neighbor — but became glassy-eyed, “talking crazy” and “basically out of it” within the hour (NY Times, 2006).

Toxicological screening is not standard, unless specially requested, in a rape exam in North Carolina. No such request was made that night. Defense lawyers said it would have shown drugs or alcohol. The Durham police have speculated that the test might have found a date-rape drug, records show; they have also theorized that the trauma of rape itself might have been responsible for her condition.

From the New York Times’ review of the case file:

On March 16, investigators began the process that has become one of the mostly hotly disputed elements of the Duke case — the identification of individual suspects. The woman was shown lacrosse team photographs of four possible suspects — the players whose names were Adam, Matt or Brett — and of 20 other team members. (Mr. Seligmann was among those pictured; Mr. Finnerty and Mr. Evans were not.) She identified four people she thought were at the party, including Mr. Seligmann, but none as her attackers.

“This is harder than I thought,” she said, according to Officer Michele Soucie’s notes.

Five days later, the police gave the woman another opportunity to identify her attackers. Officer Himan wrote that, under questioning, “She was unable to remember anything further about the suspects.” She was shown 12 more photographs, including Mr. Evans’s, his lawyer said. She identified none. Another investigator, Richard D. Clayton, wrote, “She again stated the photos looked the same.”

The third and final photo identification session occurred on April 4. Mr. Nifong suggested to the investigators that they show the woman pictures of all 46 white lacrosse players — taken 12 days before — and ask if she remembered seeing each one at the party and if so, what he had been doing. About 30 players had been at the party. Sergeant Gottlieb showed the woman each picture for a minute. The full transcript shows some precise recollections, three weeks after a relatively brief encounter with a large group of white strangers.

The third man pictured “was sitting on couch in front of TV,” the woman said. The fourth “looked like Bret but I’m not sure.” The fifth “looks like one of the guys who assaulted me.” How sure was she? Sergeant Gottlieb asked. “He looks just like him without the mustache,” the woman said. Ninety percent sure. This was Mr. Evans. His lawyers and family say he has never had a mustache.

The sixth picture she did not recognize. The seventh “looks like one of the guys who assaulted me.” Asked how sure she was, the woman said 100 percent and described what he had done. This was Mr. Seligmann.

Another student was standing outside talking, the woman told the police. Two others were drinking in the bedroom. Another wore khaki shorts. She said the person in one picture was the one who had given her the $400; this was proved accurate. Another was sitting in the kitchen, another outside, talking; one was sitting in the front row during the dance; another sitting on the couch watching TV; another made the broomstick comment; two of them she remembered yelling excitedly during the dance; and another, she said, was the third man who had assaulted her. The transcript says “the victim’s eyes were pooling with tears.” She was 100 percent sure. This was Mr. Finnerty.

The poison in the wound

Two words: Mike Nifong. We know that Mike Nifong, the District Attorney prosecuting this case, effectively lied to the court by way of the Judge, grand jury and defense’s council, when he “forgot” to fork over DNA results that showed the accused had sexual contact with numerous partners…none of them on the Duke lacrosse team.

Buried in thousands of documents handed over to defense lawyers by the district attorney in the Duke rape case was a stunning report from a private lab hired by the prosecution that found DNA from multiple males in the accuser’s body — but none that belonged to the accused players, according to a defense motion filed Wednesday.

The lab, DNA Security of Burlington, found during tests performed last April that not only did the DNA not match the three defendants, but that it also did not belong to any of their lacrosse teammates or anyone else who submitted DNA samples to police, including the accuser’s boyfriend. Those findings were not turned over to the defense until October, when District Attorney Mike Nifong’s office turned over thousands of case-related documents.

“This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated,” lawyers for the three accused players said in the motion (ABC News).

Not only does this tid-bit bust a person’s credibility, more importantly, it’s reason for a medical professional performing a rape examination and collecting evidence to make conclusions based on all the facts. For his conduct, Nifong will go before the state’s bar on numerous charges of violation, including ethics.

Simply put, the man we thought would champion this case has turned out to be its weakest link, by all accounts. There is strong evidence that one of the accused was not at the house when the alleged assault occurred- Nifong has heard none of it, outright refusing to.

Not only should he have played his legal cards closer, but in his proclamation that DNA would pinpoint the suspects, he snuffed one very important fact: rapes can and do occur without leaving semen or other DNA evidence behind. In addition, the prosecution put too much emphasis on ensuring a visual ID was made by the accused; rapists go unidentified all too often. Just because a rape cannot be proven in a court of law, does not mean it didn’t happen; that is where many people get confused.

Nifong’s professional conduct and handling of the case has also overshadowed other DNA evidence found at the scene which is consistent with the accuser’s accounts:

The police recovered semen from beside the toilet — about the same spot where the woman said she had spat out semen from someone who orally raped her. It matched the DNA of Matt Zash, a team captain who lived in the house and has not been charged. His lawyer said the semen had come from other, innocent sexual activity.

Investigators also found a towel in the hallway near Mr. Evans’s bedroom with semen matching his DNA. The woman had told the sexual assault nurse that someone had wiped her vagina with a rag. Mr. Evans’s lawyer said that this towel had nothing to do with her accusation, and that the semen came from other activity (NY Times, 2006).

Nifong’s repeated fumbles led to a special prosecutor being assigned in his place by the State Attorney’s office. The credibility of the District Attorney has been shot, and the death ruled suicide by an over zealous prosecution.

Dec. 29, 2006 — In yet another moral blow to Durham County District Attorney Mike Nifong, the North Carolina Conference of District Attorneys called for the prosecutor to step down from the Duke lacrosse case.

The group, which represents district attorneys from across North Carolina, said in a statement that “it is in the interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution.”

As of mid-January 2007, and facing ethics charges that could lead to his disbarment, Durham County District Attorney Mike Nifong has asked the state attorney general’s office to appoint a special prosecutor to take over in the Duke lacrosse sexual assault case.

The upcoming trial

Now that the State’s attorney has intervened and taken over prosecution of the case- an entire review of the case file, evidence and witness statements is underway. Taking a lesson from Nifong’s actions, the AG’s office isn’t talking about the process they are going through, what they may have found or what they think may have happened the night in question.

But let’s not kid ourselves. The rape charges have been dropped. I can say that there is an overwhelming preponderance of evidence that shows that a woman was brutally assaulted at a party thrown by the three co-captains of the Duke lacrosse team.

It is likely that she does not know for certain who these men were, nor what they looked like. It is likely that they did not leave any DNA evidence on her body, and it is likely that she was slipped a drug in the drink given to her at the party, which caused her to appear overly intoxicated and confused. It is all likely, but it cannot be proved, and in a game where the stakes are the futures of three, upper class white men, circumstantial evidence simply will not do. Because of the prosecutor’s misconduct- not the memory lapses or inconsistent stories of the alleged victim- these men will never be convicted; there is too much reasonable doubt.

Lesson’s learned

When I decided to write this follow-up article, it was because I felt a responsibility to do so having brought it up in the first place. Because things with the case have changed so drastically though, this made writing very difficult. Pouring over page after page after page of information left me wary of what I might found out.

Last April, the main focus of the black community was “she better not have made this up.” We felt that way because the lasting ramifications of such a lie as one that cannot ever be lived down; again we look to the Tawana Brawley case to understand why- this is a case that has never gone away, and it is a case that made it harder for abused women –particularly black women- to speak out and fight for justice. Gang rapes happen more often than people think, and the privileged raping the not-so-privileged is one of America’s oldest past times.

As I combed through all of the documents, articles, interviews and files, I fully expected to come out convinced the alleged victim lied to the world when she claimed she was raped. Instead, I am convinced more than ever that the assault took place- in part, because the physical evidence is overwhelming.

I am angered, not at her, but at the prosecution, a man sworn to uphold the law, who instead cut corners, told half-truths and withheld evidence, a man who refused to look at the picture presented by the evidence, rather than forcing the evidence to fit the picture in his own mind. Nifong believed the victim had to identify an attacker, he believed that there had to be DNA, so he blotched line-ups, lied about DNA and other serious factors, all to ensure that a conviction is carried out in the end.

This is not how one upholds the law. When we allow the evidence to speak for itself, it does. It can’t give us any more or any less than what it is, and when one tries to force it, inevitably one begins to fabricate, which is exactly what he did. In this case, three young men, disturbed and calculating, charming and convincing, will get away with their crimes. They have jumped on the wave of reasonable doubt and will surely ride it all the way to a mistrial or “not guilty” verdict. Ultimately this can all be summed up easily; we will never fully know the details of what really happened.