It has recently come out that ten years ago, Mary Doe (the student who reported being raped by three Duke lacrosse players) reported being raped by three acquaintances (one of who may have been a boyfriend or an ex-boyfriend) to police. Although the report was made when Mary Doe was 18, she said the rape took place when she was 14 years old. From the New York Times:
The Creedmoor police chief, Ted Pollard, said the woman filed the report when she was 18, in August 1996, but said the assault had happened in June 1993, when she was 14.
Chief Pollard said the initial report did not explain why there had been a delay of more than three years between the alleged assault and when she reported it. He said Thursday that his office had only paper records from that time period and had not yet determined whether there had been a follow-up investigation.
“It says she was beaten, assaulted and sexually assaulted by three African-American males,” Chief Pollard said. “And she identified the three males.”
And from Essence:
The mother also told ESSENCE that when her daughter was 17 or 18, she was raped by several men, one of whom was someone she knew. The attack took place in the town of Creedmoor, about 15 miles northeast of Durham, and was a “set up,” according to the accuser’s mother. Although other family members confirmed that the alleged victim reported the incident to police in that jurisdiction, the young woman declined to pursue the case, relatives say out of fear for her safety.
It appears that Mary Doe and her mother kept the details of this from Mary Doe’s father for all these years.
Although a lot will be made of this from the “she’s lying” crowd, I don’t think a past rape report is evidence of anything. To say that this shows a pattern of false reporting, there’d have to be some proof that the earlier report was false, and no such evidence seems to exist. And being gang-raped twice in ten years is, from what I’m able to tell, a bit like being in a major car accident twice in ten years – unlucky, but not impossibly so.
Nor do the cases seem all that similar. In 1996, the rapists were three Black men whose names were known to Mary Doe. In 1996, the report was filed years after the fact. In 1996, Doe decided not to follow through on the charges. The “pattern” some folks see seems pretty slight.
How much will this matter, if this case gets to trial? It depends. The prosecutor has said that the jury will never hear about it, because of North Carolina’s rape shield laws.
A North Carolina district attorney says a jury in a rape case involving Duke University students “may or may not hear” about a previous rape claim by the alleged victim. […]
D.A. Mike Nifong says the state’s rape shield law includes “narrowly defined categories” under which the accuser’s past sexual history is allowed as evidence. He says the court has to determine if the evidence fits the criteria.
What are rape shield laws? Many people mistakenly believe that rape shield laws forbid the press from revealing the name of an alleged rape victim. That’s not true; in the U.S., the press is legally free to report rape victims’ names, but most press outlets choose not to.
The exact details vary from state to state, but in general rape shield laws forbid the defense from bringing up the alleged rape victim’s past sexual history in court. In other words, rape shield laws are supposed to prevent defense attorney from putting rape victims on trial for being a slut. But of course, defense attorneys try to find loopholes, and some judges are lenient in allowing loopholes to be used.
Here’s the portion of North Carolina’s rape shield law, which deals with exceptions to the rape shield law:
(a) As used in this rule, the term “sexual behavior” means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.
(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant’s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
I don’t see anything in there that would help the defense attorneys get Mary Doe’s past rape complaint into the trial record. Exceptions one, two and three simply don’t apply. I suppose a defense lawyer could attempt to find a psychologist to make some sort of allegedly relevant diagnosis of Mary Doe’s mental condition, but that seems like a stretch.
There is another route that defense lawyers could use, however. If they can convince a judge that the 1996 charges were false, then they might be allowed to bring up the 1996 charges. (Much of the following information comes from George Washington University law professor and relentless self-publicizer John Banzhaf).
In State v Baron (1982), the Court of Appeals of North Carolina ruled:
Defense counsel sought only to introduce evidence of the prior allegedly false statements for impeachment purposes and advised the court of their intent. We believe that the Legislature intended to exclude the actual sexual history of the complainant, not prior accusations of the complainant.
So even though it’s not an exception specifically outlined in North Carolina’s rape shield law, evidence of past false allegations are admissable.
But here’s the rub: Is there any evidence at all that Mary Doe’s 1996 rape report was false? Not that I can see. Banzhof argues that Doe’s 1996 report may be admitted, but he doesn’t address the lack of evidence of a false report. And (in theory, at least) defense attorneys would have to be able to show that the 1996 report was a lie in order to bring it before a jury. In a later case, the Court of Appeals of North Carolina ruled:
Rather, the present case is more analogous to State v. Anthony where this Court affirmed the trial court’s exclusion of evidence of the victim’s previous accusations of sexual abuse against her father and stepfather. Although the charges were dismissed in that case, this Court reasoned that the dismissal of the charges did not show that the victim’s allegations were false. Just as there was no evidence of false allegations in Anthony, here, there is no evidence that the victim’s allegations were false. Therefore, the trial court did not err in excluding evidence of the victim’s prior allegation of sexual abuse.
Of course, it all depends on the judge – if a judge is a misogynist, then defense lawyers in a rape case can get virtually anything in. But at this point, it seems to me that Mary Doe’s 1996 rape report is probably inadmissible.
* * * *PLEASE NOTE* * * *
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I’ve already read in a couple of places that the prior rape allegations “prove that Mary D. has some kind of bizarre fantasy about group sex blah blah blah…”
Freakin’ Yahweh on a pogo stick… I need aspirin. >:
“But here’s the rub: Is there any evidence at all that Mary Doe’s 1996 rape report was false? Not that I can see.”
As I wrote on RachelsTavern, the police should open this previous case and charge those men as well if that first allegation is true.
Belaboring the point, I admit, but I was somewhat surprised that so many attacked Essence Magazine for reporting this first allegation rather than demanding that that first case be as thoroughly investigated as the current one against the Duke men. Even if the sex had been ‘consensual’, she was 14 at the time and could not by law consent if the man was indeed an adult at the time.
Wouldn’t gang-rape at 14 with the issue never legally prosecuted nor the perpetrators punished possibly be consistent with low self-esteem that might lead to risky behavior or involvement in the sex industry, thus actually increasing the danger of a subsequent assault?
the police should open this previous case and charge those men as well if that first allegation is true
It’s probably too late. The assault happened thirteen years ago, which may well put it past the statute of limitations.
In my state the statute of limitations is five years on a warrant and ten on an alleged crime.
Over at Justice 4 Two Sisters, there’s a link to a story about the previous incident. That story says the woman was 14 and was set up by her abusive adult boyfriend, who “let his friends take turns”. It also says she reported it three years later because her new boyfriend/husband encouraged her to do so, to help her heal.
I don’t think North Carolina has a statute of limitations for statutory rape. If they don’t, then this new set of men are fair game, as well they should be. However if NC does have a statute of limitations for rape, then those men can testify they did not do it and the Duke defense has their ‘evidence’ that her accusation was ‘false’.
Either way, charged with rape or free because of the time passed, this previous set of men will not freely admit guilt. If this accusation is ruled inadmissible, you can bet the defense will appeal this as high as they must.
Supporters of the victim must realize this and prepare now for a very long and trying journey.
Alley rat’s point is very important. The two cases are quite dissimilar. In the first case the rape was reported 3-4 years after the incident, at the urging of Mary Doe’s husband. He has stated that he thought it would help her heal…..It should also be noted that the first rape was reported in the court documents as a “statutory rape.” Her boyfriend was 7 years her senior–a 21 year old with a 14 year old.
I’m not at all surprised that there was no investiagtion given the fact that the incident was reported much later. I also read somewhere that the police felt there was no evidence to investigate. That could be wrong, but I think this is indicative of how these kinds of cases are treated by many in law in law enforcement.
How much will this matter, if this case gets to trial? It depends. The prosecutor has said that the jury will never hear about it, because of South Carolina’s rape shield laws.
Did you mean North Carolina?
[Whoops! Thanks for catching that. Correction made. –Amp]
And it seems to me that doesn’t matter if Mary Doe’s 1996 rape report is true or false. The only thing potential jury members will remember about it is that she has made rape accusations before. Folks will assume that because the previous report was not followed up on, it was false. And if they think that one is false, they will assume this one is false.
It breaks my heart to read about rape trials in the news. It is the only crime I know of where the victim is viewed as some kind of criminal no matter what they do.
Um, would a prior rape count as “sexual activity of the complainant”? If the defense were paying me, I’d certainly argue otherwise.
One of the things that made me most angry in hte police rape trial that was held in New Zealand recently was the double standard about what was admissable as evidence.
The fact that the complainant had been part of trial that had returned a not guilty verdict before (after 2 mistrials because police officers had ‘accidentally’ entered non-admissable evidence during testimony) was considered evidence.
The legal history of the defendents was not.
Apparently, New Zealand rape laws were changed in 1993, and those changes were completely ground breaking, and included a bunch of feminist ideas. Unfortunately it doesn’t seem to have done much good. Which isn’t that surprising, given that the system is still run by and for the men in power.
I don’t think North Carolina has a statute of limitations for statutory rape.
There isn’t as of 1998. The reported rape happened in 1993, before the statute of limitations changed (as far as I can tell) and at any rate, the men named in the report saying “I didn’t do it” would not prove that the earlier report was false. (And anyway, where would they testify? In the rape trial of the Duke lacrosse team members? In a perjury hearing? In a new rape case when the accuser declined to prosecute last century?)
The defense will probably appeal if there were a conviction, on all kinds of grounds.
I think the only way that the accuser’s past claim of rape 10 years would be allowed under the rape sheild law woild be if there were substantial evidence that it was false. That would go not to her sexual behavior, but her truthfullness with respect to rape claims, and a propensity tp fabricate claims. The mere fact she choose not to pursue these claims, as many rape victims do, would not reach such a standard. So there is no reason to believe that such evidence of the past accusation could or should be admissible at trail. Barring real evidence the allegations were false, this is not even a close call.
As to her own belated admissions ( she initially claimed that she had not had sex within a week prior to the Duke party) that she had sex with three men and had used vibrators in a sexual manner on the evening of the alleged attack prior to the arriving at the party, these would be relevent and admissible both as to the possible origin of the general swelling in her genital area as well as to her truthfulness, since she gave an inconsistant story on this issue in a previous account.