SECURITY GUARD'S REPORT SEEMS TO CORROBORATE MARY DOE'S REPORT OF RAPE IN DUKE LACROSSE CASE

Gaaah.  I fell asleep last night to the dulcimer strains of talk radio host Michael Savage calling "Mary Doe," the complaining witness in the Duke lacrosse rape case, "the Durham dirtbag" and "the stripper slut."  (My husband had turned the radio on and fallen asleep and I myself was too exhausted to get up and turn the thing off.)  Somehow it's hard to feel rested when one has fallen asleep the night before in a rage.  What amazes me is that Savage feels so strongly that the media and citizenry should apply the "beyond a reasonable doubt" standard to the Duke lacrosse players but does not deem the woman worthy of the same privilege. 

In particular, Savage was relying on the report of a security guard at a local convenience store who saw Mary Doe and her companion shortly after they left the Duke lacrosse party and before the police became involved.   The security guard's report is in fact being trumpeted by all sorts of people as somehow proving that there was no rape.  Even the headline in the ABC link stresses "Guard who saw alleged Duke victim says no sign or mention of rape."  The guard said, "There ain't no way she was raped — ain't no way, no way that happened."

But guess what?  The guard didn't even TALK to Mary Doe.  And, in fact, I think if anything the security guard's report tends to corroborate Doe's rape claim.  The guard says that Doe "couldn't talk at all. … She was out of it."  When the police arrived later, they had to pry Doe out of the car as she gripped the brake shaft and held on tight to resist their efforts to pry her out.  (The police came because the security guard had called 911 apparently because Doe's companion had reported that Doe was being hounded by people yelling racist insults.)  The security guard left as the police were questioning Doe, and it was during this initial questioning by the police that Doe reported the rape. 

To me, the guard's statement-- despite the guard's completely irrelevant and baseless personal opinion -- seems to CORROBORATE Doe's claims.  From where I sit, it sounds like Doe was acting like someone who was absolutely terrified.  She was not acting like someone who was eager to set up the Duke lacrosse players. 

The guard's opinion is further fascinating to me because it illustrates very clearly the problems rape victims face. The guard for some reason felt herself qualified just by looking at Doe to determine whether Doe had been raped-- and felt no hesitation about essentially labeling her a liar.  I have seen this time and again.  Victims with whom I have worked have frequently been labeled as liars because they are not acting the way a rape victim is "supposed" to act.  Therefore they become suspect even to their friends and neighbors.  For whatever reason -- and I wouldn't have believed this myself before I went into criminal prosecution -- people are automatically inclined to disbelieve women who allege rape.  That, my friends, is an injustice and one that seems to be applied disproportionately to women crime victims. 

OTHER ISSUES: DNA EVIDENCE OR LACK THEREOF

Another area where we don't know the whole story is the significance of the initial DNA tests.  I don't know whether the lack of any DNA link thus far tends to exonerate the defendants or to what extent.  Ampersand over at Alas, A Blog has conducted some research.  It appears, based on his questioning of DNA experts, that the lack of a DNA link does not establish that the victim is lying about the rape; the lack of DNA evidence may, however, raise doubt about whether a rape occurred depending on a variety of different factors such as whether a condom was used, whether the victim cleaned herself off in some way after the rape, or how many men were involved.  It is also possible that more sophisticated DNA testing may provide further information down the road.  The bottom line is that the lack of DNA evidence in this case does not prove that she is lying, nor will we be able to even assess it preliminarily until we get a lot more information, probably not until the court trial.   

OTHER ISSUES: EYEWITNESS IDENTIFICATION

It is probably obvious that I am inclined to believe Mary Doe's report that she was raped.  As a private citizen and blogger, I have the right to reach my own conclusions prior to trial with the understanding that, of course, I don't know the whole story and am relying only on the press reports.

That is not to say, however, that I am necessarily inclined to believe that the individuals who have been indicted are the guilty parties.  My understanding is that the key evidence against them is that they were present at the Duke lacrosse party and that the victim identified them from some sort of line up.  This concerns me because eyewitness identification in cases where the perpetrator is a stranger can be very unreliable.  I would want to know a lot more about how much face-to-face contact and conversation she had with the rapists prior to and during the rape, and under what circumstances.  How was the lighting? How long did she get a look at them? Was she under the influence of any drugs or alcohol? How much time went by between the rape and the line up?  What was it that made her so sure these were the guys? Did they have any distinctive characteristics or marks that she was able to identify? Etc. etc.

Comments

[will]

Michael Savage?!??!?! You listen to Michael Savage>???!?!?!

Who are you? It is like I do not even know who you are anymore? What happened to the woman I liked so much???

I prefer to wait until I hear much more about actual evidence instead of the constant spin by all sides about this case. People's beliefs and statements about this case are so colored by their beliefs going into the case that nobody seems to see clearly.

Nobody needs to convict these guys yet. Nobody needs to trash the woman yet.

[The Happy Feminist]

He is pretty toxic, isn't he?

[will]

Savage is an absolute idiot. Sometimes I listen to him just to be amazed at idiots.

[The Happy Feminist]

I think that's why my husband had him on.

[TangoMan]

Regarding the DNA issues there are some issues that I find troubling. First, we read of reports from the medical staff that there were signs consistent with rape. These signs can be bruising and abrasion on the body, broken fingernails and vaginal and anal trauma. The first two indications seem to have existed prior to the alleged rape. Now, what I'm unclear of is whether the police had sent DNA samples of semen to the lab or they sent swabs taken from the the woman's injuries and from her body cavities. Clearly if the sample consisted of semen that indicates that someone had sex with, or raped, this woman. Another issue that I'm unclear about is how much vaginal trauma is required before a medical examiner can offer the opinion that the injury is consistent with rape, for minor tramua occurs during sex and if this observation is combined with the visible injuries of the woman then it would be reasonable to conclude that a rape did occur. If the vaginal and anal injuries involved tearing then that certainly strengthens the case that a rape, rather than just sex, took place. However, if there is tearing then the object that commited the tearing should leave residue. If the object is a condom clad penis then there should be some latex residue in the boundaries of the tears. If the tearing was some other object then the woman's DNA should be on the object. Further, the woman's DNA was not found at the scene of the alleged rape.

Another thing that struck me as odd was the forthright and blanket assertions by the player's lawyer(s) that no sexual assault took place and this was a consistent message prior to the results being made public. What defense lawyer is going to publicly foreclose a line of defense in which there is a possibility that he will be overturned by DNA evidence? What I took from that strategy was that they were very confident that none of the players assaulted the woman. If the conjecture is that there was an assault but it was committed by someone at the party who was not a team member then that person would likely be in the pictures taken at the party and I don't recall any observer of this case pointing out that a non team member being present at the party.

Lastly, the photo evidence shows that the woman was missing fingernails, had abrasions and bruises prior to arriving at the party and was extremely drunk. The problem for me is that her drunkeness makes me question the accuracy of her identification of the two suspects and the main questions for me come down to the additional forensic tests that are still being conducted and the severity of the vaginal trauma that she suffered.

As it stands now we have a drunken woman, so drunk that she was passing out on the lawn in front of the house as was documented by time stamped photos, identifying two suspects from a photo line-up, who can't point to external injuries that would support a rape accusation because the injuries were present before the alleged rape took place, and there is no DNA from the suspects recovered nor is her DNA recovered from the scene of the alleged rape. What we do know is that there was some disagreement about her fee followed by hot tempers on both sides. If this is the sum total of evidence that is backing the charge I would find these two accused men not guilty.

[will]

Apparently, now there is some alibi evidence being presented allegeding that these two defendants were elsewhere at the time this allegedly took place.

I agree with HappyF that "eyewitness identification" is horribly unreliable. The Justice Department even concluded that it is horribly unreliable.

[The Happy Feminist]

Well, I think you are right that it is unclear what "injuries consistent with rape" might mean. It would be fairly unusual, I think, for a rape to leave any injuries. But the converse is also true-- that tearing doesn't necessarily indicate a rape.

As for her leaving DNA at the scene? I don't know that we can necessarily expect her DNA to be there or that it would necessarily be picked up during the search of the scene. It is (I imagine-- I am no expert) like fingerprint evidence: just because I handle an object doesn't necessarily mean I am going to leave fingerprints on it.

The defense attorneys are stuck with their clients' stories. So of course they are going to have to go with whatever their clients tell them. And clients are stupid and they lie. I have certainly seen suspects deny sex and then change the defense to consent once there has been a link established via the semen evidence. Not to mention the fact that many of the players at the party may have been unaware of a rape occurring -- and thus really have no basis for saying that no rape happened.

I think the woman's intoxication (if she was intoxicated) could raise doubts about her identification of specific people. But not necessarily about what happened. You have to be pretty drunk before you start imagining rapes that didn't happen-- and I think drunkenness is more likely to lead to black outs and gaps in memory than mistakenly believing something happened when it didn't.

[TangoMan]

CNN reports:

Sources close to the investigation told CNN Tuesday that the defense will present evidence -- including ATM receipts and a cab driver -- that neither Seligmann, 20, nor Finnerty, 19, were at the team party at the time the alleged rape took place.

[Richard]

I don't know, Happy. You're really stretching to make a case for the "victim" here where I can only see reasonable doubt all over the place. Let's wait and see if there's more news coming on the DNA. If the prosecutor can't come up with something positive there, his case is toast.

>>> What amazes me is that Savage feels so strongly that the media and citizenry should apply the "beyond a reasonable doubt" standard to the Duke lacrosse players but does not deem the woman worthy of the same privilege.

Do you think an alleged victim is worthy of the "privilege" that she's telling the truth just because she's made the accusation? I don't. Savage is over-the-top, but I afford the alleged victim nothing here.

[The Happy Feminist]

Of course, the defense have some credibility issues as far as what they tell the press:

GNXP , which states in part:

Defense lawyers have told reporters that the second dancer at the party has contradicted the accuser. But that woman spoke with a local television station over the weekend, under conditions set by her lawyer that she could not be asked about specifics at the party, and she did not contradict the accuser.

"Out-and-out lies," the second dancer told MSNBC of the defense lawyers’ comments about her testimony. "It’s making me believe more and more every single day, every single news story that I hear coming from them, that they have something to hide and they’re scared of what’s to come.”

The second dancer told MSNBC that she had not seen a rape occur but she thought the accuser was telling the truth. "I think that it’s quite possible that something really terrible had happened to her," the second dancer said. She said the accuser was "talkative and friendly and smiling" before the episode and totally incoherent afterward.

[TangoMan]

It would be fairly unusual, I think, for a rape to leave any injuries.

Would it be unusual? I'm thinking of abrasion/injury resulting for lack of, or inadequate, vaginal lubrication and forced entry would be the telling clues for medical personnel.

I don't know that we can necessarily expect her DNA

The alleged rape was supposed to have taken place in a bathroom, right? All she need do is show investigators where she was positioned in the bathroom. She had abrasions on her body when she was allegedly raped, therefore if those abrasion came into contact with a surface that probability of residue being left increases. If she had to support herself against a countertop there should be signs of her presence. Recall that the bathroom hadn't been cleaned when the police searched the "crimescene" and that is where they found some of her nails, but they found no other signs of an alleged rape.

[The Happy Feminist]

But Richard, reasonable doubt doesn't mean that the victim is lying. It just means that there is a reasonable doubt as to the defendant's guilt.

Look I don't mind people casually coming to their own conclusions (I have), but people like Savage scream up and down about how the media and private citizens should give the accused the benefit of reasonable doubt so as not to destroy the accused's reputation -- but they are perfectly happy to try to destroy the accuser's reputation. That's a double standard.

And yeah, in court, the woman's testimony should be, and will be, scrutinized carefully and critically, but that doesn't mean I ASSUME she's lying unless there is some reasonable doubt as to her testimony. To me, the fact that a citizen has come forward to make this allegation is a major step towards dispelling reasonable doubt. Her testimony is a crucial piece of evidence in and of itself. So far I haven't heard any facts that necessarily raise a reasonable doubt in my mind as to her truthfulness (although I may have a doubt as to her identification of particular individuals.)

[TangoMan]

Happy,

Here's a legal question for you - before these men were charged with a crime did the suspects have any right to demand that police share the evidence with them and now that there is a charge does a right to discovery come into play and if so, how long until the evidence is shared with the defense?

[The Happy Feminist]

Tango Man, I don't know what the likelihood is that she would have left DNA evidence behind in the bathroom. I doubt that it's anything close to a sure thing.

And yeah, vaginal tearing or bruising even in a rape is extremely unusual. At the risk of being too graphic, the female body is designed to accommodate (ahem) vigorous thrusting by a penis. This is true even without adequate vaginal lubrication. And I am guessing there was vaginal lubrication that occurred naturally as the assault continued. Anal rape I don't think would necessarily would result in tearing (although of course we know in this case there was some sort of injury indicating either vaginal or anal rape, although it's not clear what the injury was).

Look, it's always possible that this woman's report is one of the small minority of false reports. Each case needs to be examined carefully and individually. My casual opinion is not meant to be a substitute for the hard work the investigator and prosecutor and jury will have to do. What bugs me is just how quickly people (like the security guard in the story) will leap to the conclusion that a woman is lying about rape.

I, on the other hand, view a woman's testimony that she was raped as a major step (and sometimes the only necessary step) towards overcoming the presumption of innocence.

[The Happy Feminist]

TangoMan, the prosecution is under no obligation to share any evidence with the suspects until they are charged. The rules vary among jurisdictions as to how soon the defense is entitled to discovery once the defendants are charged. I used to have to provide discovery within 30 days of arraignment. I would automatically turn over my entire case file (aside from my notes). The prosecutor is obligated to turn over any evidence to be used against the accused and any exculpatory evidence.

[will]

"What bugs me is just how quickly people (like the security guard in the story) will leap to the conclusion that a woman is lying about rape. "

That really works both ways. People want to jump to conclusions prior to getting all of the evidence.

[The Happy Feminist]

I agree, Will. But because there always is a rush to judgment so to speak, I think it is important to provide alternate interpretations to the conventional wisdom, such as the conventional wisdome that, "Gee if the security guard thought the woman wasn't raped, she must not have been raped."

Plus, I am carrying around years of pent up frustration from defense attorneys being able to yap in the press about anything and everything, while I was prohibited by the ethical rules from saying very much.

[TangoMan]

we know in this case there was some sort of injury indicating either vaginal or anal rape, although it's not clear what the injury was)

I think that the medical opinion carries a lot of weight with the public, and probably the courts too, but I have no idea what constitutes "injury." I'm thinking that they found microtears, which are not uncommon, at the minor end of the spectrum but if they found more serious damage I would think that they would also find forensic residue of the object that caused the more serious damage.

[The Happy Feminist]

I don't know. I think Alas's post addresses that to some extent.

[will]

"Plus, I am carrying around years of pent up frustration from defense attorneys being able to yap in the press about anything and everything, while I was prohibited by the ethical rules from saying very much. "

In my humble opinion, the police and prosecutors are FAR greater offenders of talking to the press. There is a far greater risk of the police and prosecutor poisoning the jury pool than of the defense. Far greater.

[The Happy Feminist]

That's why the prosecutors have greater ethical rules limiting what they can say to the press. Our office policy prior to trial was to confirm only the bare bones of the indictment. While I think it was a good policy, it was obviously very annoying when the defense attorney is making all sorts of misleading statements in the press trashing your victim and you can't do anything about it.

[evil_fizz]

"What bugs me is just how quickly people (like the security guard in the story) will leap to the conclusion that a woman is lying about rape. "

That really works both ways. People want to jump to conclusions prior to getting all of the evidence.

Yes, but if you go to the police station and say you were mugged, they proceed based on the assumption that you were, in fact, mugged. That standard seems to get tossed out the window in rape cases. Here, you get "Well, she might have been raped, but she might also be lying. We'll wait and see." You have to start somewhere. I fail to see why the fact that occasionally some people lie to the police means that we should begin with assumption that all statements to the police should be treated as suspect.

[Chipmunk]

Interesting how we're judging this case based on news reports. THF, you of all people should know that a prosecutor does not put all evidence on the table during the initial investigation of an alleged crime. We are also forgetting some of the "seedier" aspects of the story which raises questions in some people's mind about the alleged victim. She is a black sex worker (exotic dancer) in the South who is raising charges against white youth who attend a prestigious university (we forget that she too is a college student, but she attends a less prestigious public institution). To middle class white America, that raises all kinds of red flags calling her credibility into doubt. At least it does not appear that the prosecutor is falling in to this trap.

The DNA question is also interesting. With the number of exonerations that have occurred from DNA, we have come to believe that it is the panacea that will prove/disprove all crimes. That's not the case. Bodily fluids from a rapist may not be left on the victim if he wore a condem. Body hair or skin cells from a rapist may or may not be left on a victim. More importantly, in most cases DNA is not the deciding factor. Even Barry Scheck and Peter Neufeld would agree with that. The innocence project addresses more than just DNA cases. Scheck's, Neufeld's, and Dwyer's book point that out (for those unaware of it, the title is "Actual Innocence").

The defense attorneys have been playing to public opinion. It will be interesting to see, if this case goes to trial, whether the defense will seek a change of jurisdiction based on the negative publicity (even though they've started to contaminate the jury pool right from the start).

[TangoMan]

Happy,

You were a former prosecutor so you must be aware of the types of charges that could be directed at all of the players in order for them to offer up testimony. Do you think that conspiracy charges are viable, do you think that pleas have already been arranged with some players, if not, why not? If you run a prisoner's dilemma with 47 players, you'd expect there to be serious flipping up the chain, especially as the pressure increased on the late flippers because the early flippers pointed to their guilt or complicity.

[will]

"Here, you get "Well, she might have been raped, but she might also be lying. We'll wait and see." You have to start somewhere. I fail to see why the fact that occasionally some people lie to the police means that we should begin with assumption that all statements to the police should be treated as suspect."

The place to start is hearing all of the facts before you make your conclusions.

If you came to see me about a legal problem, I would need to hear all of the facts before I can give you good advice. If I give you advice before I hear the facts, then I run a high risk of giving you bad advice.