Reasonable Doubt

No, this is not a review of Jay Z's album. This is a rundown of the Duke Rape case. I have resisted posting here on the subject largely because there was little information out there and personal experience has taught me not to assume an accuser to be any more believable than the person who has ben accused. I am about to break this silence on the subject due to a couple of factors most important among them is the pronouncement by the currently presiding judge that the case will not be heard until next year and the release of 1300 pages on information from the DA to the defense attorneys. The information I have seen, if not refuted at trial, would be the basis for reasonable doubt and therefore I believe will result in an acquital on at least the rape charge.

Early in the case, in my discussion of the case over at Blackademic, there was a lot of supposition about what "proved" rape. The women (and some men) over there had decided that the still unidentified boys were in fact guilty of rape because the young lady in question had said so. When I pointed out that such an attitude was antithetical to the premise of innocent until proven guilty, I was told that I had high faith in a corrupt judicial system that was basically, and I'm paraphrasing here, out to screw women, specifically women of color. In some regards I agree with that statement though I would put it that the judicial system as currently run screws the poor and the ignorant (oft-times one and the same) and that race runs a close third place. This has not always been the historical situation, but this isn't 1960,1950 or times before then. This is now, when black men and women with enough money and clout can get "white people justice (tm)".

The corollary argument to the "justice screws women" argument is that since it screws women, tough titty if the screws are turned on white males. This flaccid argument imperils everyone who would come into contact with the justice system. If one can "bend the rules" for your particular political ends, then so can everyone else. In that case there is no intellectual or moral ground to argue against things such as police corruption or racial profiling as they are the results of someones ideological or political bent. Thus it is my position, much as I took with the Cynthia McKinney incident is that we are better served by upholding the law and proper procedure in all cases lest we allow our communities to be the victims of arbitrary and capricious "enforcement" when it is persons in our group that are in the cross hairs.

So getting to the actual case lets recall the statement seen on the search warrant. The victim went to the house to dance. The men waved a broomstick at them saying they would stick it in them. The women leave the premises but return after an apology is given. Upon re-entering the house the victim is pulled into a bathroom, told she can't leave and then assaulted, anally, orally and vaginally for 30 minutes by three men.

The search of the premises shows an apparent incriminating e-mail in which a member of the Lacrosse team writes:
The e-mail from McFadyen's account notes that, after the strippers were killed, they would be skinned while the author was "cumming in my duke issue spandex." The e-mail is signed "41," which is McFadyen's jersey number.

There was also a paper in the car saying "suckie suckie, $5.00"

We should note that even with this "incriminating" evidence, this individual, McFadyen, has not been indicted for anything. This underscores the sheer idiocy of those that presumed people to be guilty of anything with the information that first came out.

The next thing that went down was the DNA evidence or lack thereof. I was pretty much certain, as I'm sure the DA was, that when the DNA evidence came back the boys involved would be on the hook. Well the DNA evidence did no such thing. Instead we found out on or about April 11 that the DNA recovered did not match any of the Lacrosse players:

Appearing today on the alleged victim's campus, Durham County District Attorney Mike Nifong acknowledged that DNA tests failed to link any of 46 white lacrosse team members to the victim. The team's one black member was not tested.

Interestingly, we note that the report wasn't that no DNA evidence was found but that the DNA evidence found did not match any of the white players. They did not test the black player. Maybe they should have. I'll explain later.

When this point came up and was discussed at blackademic, the people there said that the boys could have used condoms which would have prevented semen and epithelials from being deposited in the victim. I argued that the use of condoms would have been detected but was never discussed in the case. Many lawyers claimed that DNA is often not used to prosecute or secure guilty verdicts in rape cases. So I got to thinking, if DNA can be used to exonerate persons previously found to be guilty beyond reasonable doubt in rape cases, then perhaps there is a problem with how rape cases are prosecuted. Indeed since N. Carolina law defined rape as requiring intercourse, it would seem that DNA evidence would be the key for determining innocence or guilt, in the absence of some other evidence. So how do people get found guilty of rape without DNA evidence? or specifically, DNA?

As with any other crime one must place the victim and the assailant in the same space and time. Often rapists use physical force to subdue their victims and that physical abuse is what provides the evidence needed to convict someone of rape. If you can place the victim and the assailant in the same place and time as the physical abuse, and you can determine that the victim was raped then it is reasonable to convict someone of rape as well.

Sometimes the assailant will get scratched and the good old blood type matching will be used. You also have the case of fingerprints that place an assailant at the scene. These are means to secure a conviction without the use of DNA. The problem in this case is that most if not all of these items are irrelevant to this case. The boys would have fingerprints all over the house since they either lived there or visited often. Furthermore, none have denied being in the general location that night so those items are not in dispute. Thus it comes down to ID-ing which of the 23 team members where allegedly involved in the rape case. But we have a problem. The evidence, as discussed has indicated that at least one of the accused was not on the premises at the time of the alleged rape. He has camera footage showing him to be at a bank. He has a cab driver that identifies him as well as swipe card records. Well what does this mean. It means that the alleged victim has apparently miss-identified at least one person. So now we have a credibility problem.

The credibility problem gets much much worse as we go back to the DNA evidence. The DNA evidence that didn't match any of the players, does match someone. Her boyfriend. Now ordinarily I wouldn't be too swayed by this except that we have the following statement:

efense attorney Joe Cheshire declined to identify the mystery man or his connection to the alleged victim, but ABC News' Law and Justice Unit has learned that the unnamed source of the DNA is the alleged victim's "boyfriend," according to her mother.

On May 23, it was further reported in the Herald Sun:
For example, three defense sources, who asked not to be identified, said a forensic examination of the alleged victim found no tearing, bleeding or other injury associated with a sexual assault. Instead, the exam detected only swelling in the accuser's vagina and tenderness in her breasts and lower right body, the sources said.

Citing nearly 1,300 pages of documents given them last week by the prosecution, the defense sources also said Tuesday that the woman told police she had sex with three men around the time of the alleged rape, which she said occurred at a Duke lacrosse team party at which she had been hired as an exotic dancer. The men were identified as her boyfriend and two drivers for the escort service for which she worked.

Now this presents a peculiar problem for the prosecution and if not explained away, will be the biggest part of "reasonable doubt". Why was the alleged victim having sex with two drivers for the escort service? Was this voluntary? was this expected? Does the boyfriend know that the alleged victim is having sex with the drivers? If the drivers are coercing this woman to have sex with them (at the same time?) is it possible they coerced her to have sex with the boys at the house? Oh but it gets worse:

In other new information, the accuser told police her alleged attackers did not use condoms, the defense sources said.

If that is the case then the whole, "Aha they used condoms!" explanation goes flying out the window and the lack of DNA evidence becomes more damning to the prosecution. NC law clearly requires penetration by a male for their to be rape if the DNA evidence does not prove penetration the case for rape cannot be made. Period. Hence, reasonable doubt.

It is entirely possible that some of the boys in question actually sodomized her or assaulted her with the broom as they suggested previously (and has not been denied). But that's not, legally, rape.

There are other possibilities here as well. Given that the alleged victim is willing to have sex with the drivers of the company she works for, is it unreasonable to believe that she may have sex with these men at the party? Honestly now, is it unreasonable? Is it unreasonable that she was in fact propositioned but the agreed upon "arrangement" was violated by perhaps having to many participants or perhaps some racial language that the alleged victim did not care for at which point she resisted and the violence ensued and the victim having managed to get free ran out the premises without her pocketbook, shoes, etc.? Is it an unreasonable scenario? Maybe there are men and women out there who think no way. Are they speaking from their own moral center or political center or are they taking the evidence at face value? You don't have to hate women to see the reasonableness of the scenario given the evidence so far. Nor do you need to be a racial sell-out to admit the reasonableness of the scenario. What else makes the scenario plausible? The Sucki Sucki $5.00 note. Perhaps it is McFadyen's experience that escorts from that particular service "suckie, suckie". Doesn't mean the boys have an excuse if she refused, but then again it puts into doubt whether or not she would have.

Me, I'm not taking sides. I'm simply at a point now where I can see that there is reasonable doubt for any rape charge and perhaps the one boy who can show he wasn't at the scene at the time of the events in question.

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