A great number of posts have criticized me and other folks for forming an opinion about the Duke rape case before a jury has weighed in. Steve of “A Republic, Madam” writes:
Liberals, stick to your guns! The accused deserve the benefit of the doubt up to a certain point, and that point has not been crossed. Do cries of rape trump civil liberties and criminal protections? I sure hope not. … My support of the lacrosse players, at least in lieu of more evidence, is grounded in liberal, not conservative, thought.
I believe very much in “innocent until proven guilty.” If and when the police make arrests in this case, I want the accused rapists (whoever they turn out to be) to have their day in court, to be able to present a defense aided by legal council, and to be presumed innocent until proven guilty beyond any reasonable doubt. Then, and only then, should they be sent to prison for what I hope is a long miserable stay.
But “innocent until proven guilty” is a courtroom standard. My opinion is not the same as a courtroom, and blog posts don’t put anyone in prison. Nothing about the American system of justice requires ordinary citizens to refrain from having opinions; and it’s not inconsistent to want Courts to adhere to “beyond any reasonable doubt” while holding my personal opinions to a less stringent standard.
Furthermore, there’s a difference between being morally guilty and legally guilty. As Jeff puts it in comments:
Admonishing one side to “leave it up to the courts” (and it is only one side; I’ve never heard anybody told they shouldn’t assert an accused rapist’s innocence because the jury hadn’t rendered a verdict) equates a legal standard with a moral one, and sends the message that it’s not really rape if they can get away with it.
At this time, unless new evidence completely changes this case, it seems clear that a brutal pack rape happened. That deserves our moral outrage, even without a court’s verdict.
Jeralyn Merrit – who has discussed this case on mainstream TV news – writes:
Rape is a serious charge. It is easy to make and difficult to defend.
I’d love to bury this centuries-old sausage. (It goes back to the mid-17th century at least, when Matthew Hale called rape “an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent”). I’d like to remind Jeralyn of the OC pack rape case - in which the victim, Jane Doe, has endured (and continues to endure) years of her character being trashed in public. Her friends were recruited by the defense to tell lies about her, and private detectives chased her from school to school, because she dared to press charges against her pack rapists. It took two trials to obtain a conviction, even though the rapists videotaped the rape.
Was that charge easy for Jane Doe to make? Was the rejection and abuse from the community around her easy? Was the defense’s burden – in which even a videotape of the rape taking place almost wasn’t enough for a conviction – too heavy?
Jane Doe’s experience was extreme, but hardly unique. The defense strategy of attacking rape victims goes back decades (centuries?), and guarantees that rape is not a charge easily made. In particular, when a working-class black stripper accuses wealthy whites of rape, it’s all but guaranteed that if it comes to a trial the defense will put her through hell. To call this accusation “easy to make” shows an appalling blindness to how our court system often puts rape victims on trial.
Jeralyn then sums up the case – but in her effort to spread confusion and create reasonable doubt, she gets her facts wrong. Here, she discusses the 911 call so many people have gone on about:
The women leave the party. One goes back in. She leaves again and meets up with the second woman. At some point, the second woman calls 911 to complain about racial epithets hurled at her by one or more males at the house. (listen to the call here.)Within two minutes police arrive, there is no sign of the woman.
But in fact, according to the News & Observer, “Police said they don’t know who made the 911 call to report the racial slurs.” So why does Jeralyn believe she knows something the police don’t?
(And why does it matter? Jeralyn doesn’t explain how this call – no matter who made it – is evidence that no rape took place.)
Jeralyn also quotes from “Inside Lacrosse,” which according to her has “the best coverage of the story”:
Of note are two phone calls received by the Durham Police that night, the first made by a woman who said she was driving by the house at 610 N. Buchanan Blvd., about an hour before the alleged rape took place, at which point, according to transcripts of the conversation, she was met with racial slurs.
About an hour before the alleged rape took place? That would be a blow to the accusation of rape, if true – because the police showed up a few minutes afterward the first 911 call, and found the house quiet and seemingly empty (although filled with the detritus of party). But according to this time line of events (which Jeralyn herself linked to), the next-door neighbor saw the women enter the house at about midnight and drive away between 12:45 and 1 a.m. – so if the rape occured, it occured in that time range. But the first 911 call was made at 12:53 a.m. So it’s extremely sloppy of the “best coverage of the story” to claim the call was made an hour before the rape.
That wasn’t Jeralyn’s point; I just commented on it because the bad fact-checking was so blatant. Jeralyn’s point, I think, is that the first 911 caller’s story had inconsistent details – was she walking or driving? How many men used racial epithets? But these inconsistencies don’t prove anything. First of all, there’s no evidence that the first 911 call is connected to the rape victim. Second, people who call 911 can’t fairly be expected to present a well-organized story, without any stumbles or misspeaking; on the contrary, from the recordings I’ve heard, 911 callers are often flustered and confused.
So how does a 911 caller, who may or may not have ever seen the (alleged) rape victim in her life, mixing up “walking” and “driving” prove that no rape happened that night? Jeralyn doesn’t say.
Then there’s this:
In an article filed by the Herald-Sun on March 29, Angel Altmon, the security guard who made a 911 call at 1:22 a.m. on March 14 […] claimed the driver of the car said she was not at the party with the alleged victim. […]
But in an article in the Duke Chronicle the following day, Kammie Michael, public information officer for the Durham Police Department, told the Chronicle the woman who drove the alleged victim to the grocery store was in fact the second dancer at the party.
Well, that certainly proves there was no rape!
Uh, wait. How does it prove anything? Explanation of relevance, Jeralyn?
Maybe Altmon misheard. Or maybe not all strippers are eager to tell total strangers what they do for a living. There are a lot of reasons this sort of very minor discrepancy can happen; you need more than “there were minor discrepancies in the 911 calls” to put together a plausible case for false rape accusation.
(You can read the transcripts of the two 911 calls here).
Jerelyn then quotes a forensic pathologist:
Usually, a physician can’t tell consensual from non-consensual. They can tell whether there’s been intercourse or not intercourse, but not whether it’s consensual because one can have bruises and certain injuries from consensual sex and one can have no injuries from non-consensual sex.
What Jerelyn doesn’t mention (and perhaps doesn’t know) is that the girl was beaten up. As the girl’s father told a TV news reporter:
The man described what his daughter looked like when she was released from a hospital. “Her face was all swollen up, her jaw. She couldn’t half walk. One of her legs was hurt.”
To me, that kind of injury doesn’t sound like the result of consensual sex for anyone but an extreme BDSMer. It sounds particularly unlikely for a stripper, who depends on her looks to feed herself and her children. (Maybe the father was lying – but it would be a very stupid lie, since the police would have taken photographs.)
Why do I think this story is true?
1) The victim’s story seems both plausible and similar to other pack-rape cases I’ve read about.
2) Both the medical exam and her father’s comments about her injuries are consistent with her story of being violently attacked and raped.
3) The police, when they searched the house where she claims she was raped, found her makeup bag and five of her torn-off fingernails. Again, consistent with her story.
4) Elements of her story are supported by the testimony of the next-door neighbor, Jason Bissey (see the timeline).
Do I think that’s absolute proof? No. It’s possible that further evidence could come along which would change the way things look entirely. (Always a possibility, with any crime.)
But at this moment, the evidence that a rape took place is pretty straightforward and convincing, whereas the evidence that a false accusation took place is… I’m not even sure what it is. “A couple of 911 calls were not perfectly consistent, therefore a false accusation has taken place!” seems to be the gist of it. That’s not convincing. That’s not anything.
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P.S. Jeralyn links to this awful Findlaw article, which proposes that anyone who makes a rape accusation should be put on trial without an attorney or the chance to present a defense. Here’s my comments on that proposal from the last time Jeralyn linked it, in 2003.