The Rape That Never Was: Why, In Light Of The Lack Of DNA Evidence, The Case Against Duke's Lacrosse Team Should Be Dropped

By JONNA SPILBOR
Friday, Apr. 14, 2006

The news swirled across campus - and across the country: Three lacrosse players from prestigious Duke University had been accused of a disgusting, racially charged gang rape.

The accuser was a 27-year-old, African-American student at a nearby college. She said that she had been hired to strip at a March 13 off-campus party, attended by the entire Duke lacrosse team. The frat-house style celebration turned into a nightmare, she said, when -- shortly after arriving at the party to perform with another female stripper -- she was shoved into a bathroom against her will by three players, all of whom were white. She said that they violently raped, sodomized, choked and beat her.

From the beginning, attorneys for several team members were clear: "They didn't do it."

It was a gutsy defense -- especially since, at such an early stage in the investigation, the only evidence supporting it was their clients' wholesale denial of the accuser's account. A safer strategy might have been for the attorneys to wait to see how things played out, and consider whether to argue, instead, that the evidence indicated the victim had consented.

But when the DNA tests came back, the attorneys were vindicated: Forty-six cheek swabs were analyzed - one from every white member of the Duke lacrosse team - and not a single one connected any of the players to the accuser.

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Yet the Durham, North Carolina District Attorney, Mike Nifong, has vowed not to drop the case.

In this column, I will explain why he's wrong: In the absence of DNA, he should, indeed, drop the case - both because the evidence strongly indicates the players' innocence, and because it means he will never be able to prove their guilt.

Is "Conclusive Evidence" of Guilt Also, If Reversed, Conclusive as to Innocence?

The D.A.'s written request for a court order to obtain those forty-six DNA samples stated that DNA testing would provide "conclusive evidence" as to which three lacrosse players allegedly assaulted the accuser.

This phrasing poses a compelling question: If DNA can be considered convincing evidence of guilt in sex crimes, as the DA himself argues, shouldn't the absence of DNA evidence provide equally convincing proof of innocence?

D.A. Nifong argues, instead, that the lack of DNA "doesn't mean nothing happened. It just means nothing was left behind." He has pointed out, in addition, that rape prosecutions can go forward - and convictions can result - without DNA evidence. According to Nifong, in 75 to 80 percent of all sexual assault cases, there is no DNA to analyze.

But those cases aren't like this one - for several reasons.

Why, In This Case In Particular, the Absence of DNA Indicates Innocence

Often, women do not report sex crimes for days or weeks - washing much, or all, of the DNA evidence down the drain long before police and prosecutors can collect it. But not in this case. Here, the victim submitted to a "rape kit" examination only hours after what she said was the time of the alleged attack.

Often, rape is accomplished by fear, not force. But in this case, the crime alleged was brutal and barbaric. The accuser said, for instance, that her acrylic fingernails were torn off as she tried to defend herself.

And often, an attacker will use a condom precisely to destroy the chance that he will be caught via DNA. But here, the alleged victim made no mention of any of her attackers using a condom. (Also, while a condom might prevent organic DNA from being deposited on or around the accuser, it would have left its own trace evidence, especially if coated with spermicide. Here, it appears that no such evidence was found.)

For all these reasons, it seems very unlikely that if the attack alleged occurred, none of the attackers' DNA would have been collected from the accused's body or clothing - or from underneath her fingernails. D.A. Nifong has pointed out that the accusers' clothing could have protected them - but their hands, face, and necks likely remained exposed. What is the chance that the accuser would not have made contact with any of their hands, faces or necks if a brutal attack truly occurred?

Another Problem with the Prosecution: Apparent Failure to Identify the Alleged Attackers

Of course, the D.A. is technically correct that a rape prosecution may proceed upon an accuser's word alone. Indeed, sex assault cases often boil down to an accuser's word against that of the accused. But there's a second problem here, besides the lack of DNA evidence: It appears - from news reports, and from the testing of all forty-six white players - that the accuser is unable to identify her alleged attackers. (It also appears that the other stripper who attended the event did not witness the alleged attack - for the prosecution has not cited any witness in its favor besides the accuser herself.)

The accuser's inability to identify any one of her three alleged attackers is very strange. Reports indicate that she arrived at the party, was paid in part for her anticipated services, and may have performed, at least for a short while. It seems that she should have had ample opportunity to eyeball many of the guests before the alleged attack, including the three who allegedly committed it.

Also, even if the three attackers were initially lost in a sea of forty-plus faces, shouldn't she have seen them during the attack itself - said to have occurred in a room no bigger than a closet?

Finally, one would think that even if the alleged victim could not picture or describe her attackers offhand, at least a photo lineup would result in a positive identification -- if not of all three, then at least one.

The D.A. Should Look at Exculpatory, Not Just Inculpatory, Evidence

The District Attorney has an obligation, prior to charging anyone with a crime here, to examine all the evidence procured per the investigation, both inculpatory and exculpatory.

In addition to the negative DNA test, there is additional exculpatory evidence here. This week, pictures of the alleged victim surfaced that may indicate that she had suffered injuries to her body already - the same injuries for which she claims the three attackers were responsible.

Especially if these photos have accurate time and date stamps, the credibility of the accuser will be so severely undermined, that prosecutors may have to face this painful question: Should this case turn from an investigation of rape, to an investigation of a false claim of rape?

In this particular case, it seems that evidence of the accused's innocence equates to evidence of the accuser's lie. If so, one would hope the Durham prosecutor would do an about- face - pursuing charges against this accuser with the same fervor he is exhibiting in his efforts to prove her a victim.

But why would the accuser lie? Bill Thomas, a defense attorney for one of the team captains, has offered one possible reason - he believes she was trying to avoid a charge of public drunkenness. He's stated, "It is my sincere hope that she comes forward and tells the truth in this matter and allows these young men to go on with their lives and for this community to heal."

Let's hope that if he is right, and the accuser is lying, the D.A. recognizes that before the case goes any further.


Jonna M. Spilbor an attorney and legal analyst on "Kendall's Court", airing Sundays on Fox News Channel's Weekend Live with Brian Wilson. She is also a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.