JURISPRUDENCE

At Duke, Just Pick Your Facts

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By Dahlia Lithwick
Sunday, April 23, 2006

Here we go again.

The Duke lacrosse team's rape scandal cuts deeply into this country's most tender places: race and class and gender. It reaffirms the unspoken fear that black women/white men/poor people/privileged people/victims/defendants can't get a fair shake under our legal system. It will be chewed over, regurgitated and chewed over again by television pundits unafraid of venturing opinions in no way informed by the rapidly evolving public facts.

It's easy to have doubts about the ability of the courts to resolve cases like this one, when you stop to consider that long after the court proceedings, hearings and investigations ended, we still have no idea what really happened between Kobe Bryant and his accuser; between Michael Jackson and his accuser; between Clarence Thomas and Anita Hill. If these legal processes are intended to be searches for the truth, why is there never any truth at the conclusion?

Part of the answer is that some truths are unknowable. Subtle distinctions between consensual sex and date rape, between coercion and force, between silences that sound like "yes" and silences that mean "stop," are difficult for the parties themselves to work out. How can a juror divine what went on in the mind of another person?

But that's where the Duke case differs from the Kobe Bryant case. This is not a case about consent, about subtle social messages or identity-based misunderstanding. Either a forcible rape, kidnapping and strangulation happened in that bathroom in Durham or it didn't. Nor is it a classic he said/she said. There is evidence here, mounds of significant physical evidence: There is a rape kit. There are bruises. There are DNA tests and broken fingernails and witnesses seemingly tumbling out of the woodwork. There are time-stamped photographic accounts of much of the evening. This is not a case about ESP as much as it's a case about CSI.

One might hope that all this evidence, and the unambiguous legal charges, would lead to reasonable legal inferences and unequivocal legal conclusions. But that would be dead wrong. Because the so-called objective evidence we hear is no more objective or conclusive than the rank speculation of the pundits. Everything we are hearing, about the DNA tests and the photos, is selective, secondhand and anecdotal. We are being played by the lawyers, with leaks and well-chosen sound bites.

The same thing happened after the Kobe Bryant accusations surfaced. People made instant judgments -- based on their own experiences, or what they read in the paper, or what they simply knew to be true. People far from that resort in Colorado knew for certain that Bryant's accuser was a liar and a tramp. Women who had never heard of Bryant knew absolutely that he was a rapist.

And that's what's happening in the Duke case. We already feel we know, with great certainty, who's lying and who isn't. The headmaster of the high school of one of the accused students puts out a statement saying: "Knowing Reade Seligmann as well as we do here at Delbarton . . . I believe him innocent of the charges included in the indictment." A Duke English professor has called for the university to expel the whole lacrosse team to stop the "drunken white male privilege loosed amongst us."

Rush Limbaugh, knowing nothing about these people, comfortably dismisses the alleged victim as a "ho." (I gather he apologized. Huzzah.) Jesse Jackson, knowing nothing about this nameless accuser, says this is an archetypal racial conflict: "The wealthy white athletes -- many from prep schools -- of Duke; and the working class woman from historically black North Carolina Central. Race and class and sex. What happened? We don't know for sure because the Duke players are maintaining a code of silence. The history of white men and black women -- the special fantasies and realities of exploitation -- goes back to the nation's beginning and the arrival of slaves from Africa." And Tucker Carlson doesn't hesitate to impugn the truthfulness of anyone employed as a "crypto hooker."

If such comments tell us anything at all, it's about what happens in the creepy closet under the stairs of Limbaugh's, Jackson's and Carlson's brains.

As with Simpson, Bryant and Jackson, this is becoming an inkblot test: We look to the facts to confirm our preexisting suspicions about what happens between men and women, rich people and poor people, black people and white people.

And what about all this physical evidence? That unambiguous, objective scientific evidence? Supporters of the Duke students say the lack of a DNA match exonerates them. Peter Neufeld of the Innocence Project says, "There's an old saying that the absence of evidence is not necessarily evidence of absence." Nurses say the injuries are consistent with rape. The boys say someone else raped her. Time-stamped photos suggest that the alleged victim was injured before she arrived at the party. Other photos suggest new injuries occurred while she was there. Lost fake fingernails in the bathroom suggest a fight. The lack of any DNA material under those nails suggests she never fought back. Photos say she was intoxicated upon arrival. The second stripper implies she was drugged at the party.

Pick your fact. Each of them can, it seems, be spun both ways. This case serves as yet another depressing reminder of all that is wrong with this country: Our sons are spoiled misogynistic bigots, and our colleges are hotbeds of polarizing identity politics. Race and gender and poverty still tear us apart. But this case may also serve as a sobering reminder that courts are not laboratories and jurors are not scientists. Facts are, more often than not, just our own subjective opinions, dressed up to look like incontrovertible truths. There are, in the end, objective truths to be found here. But the jurors must work hard to look past their prejudices, and the lawyers' spin, to find them. dahlialithwick@hotmail.com

Dahlia Lithwick covers legal affairs for Slate, the online magazine.


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