A Legal Overview of The Duke Lacrosse Rape Case

On March 13, 2006 in Durham, North Carolina, Duke University lacrosse players attended a party at an off campus house where several of the team captains lived. The aftermath of this party has polarized a community and focused the attention of the nation on this southern town. Durham, North Carolina, a city that makes up half of the Raleigh Durham area has a rich history, a history that includes Duke University. Duke, a world class university, is consistently among the top schools in the country and the school has a prestigious undergraduate program with a diverse student body, superior graduate and professional schools and an athletic department that frequently has teams ranked among the best in the country. The Duke men’s lacrosse team was one of these teams. In early March of this year, the team was ranked number 2 in the nation and was headed toward what looked to be a banner year. However, allegations concerning the events of but a few hours of one evening have changed this.

According to reports, the Duke Lacrosse team, at an off campus house rented by three of the four team captains, held a party that some 46 people attended. As a part of the festivities, two African-American exotic dancers were hired to perform for $400 each per hour. When the dancers arrived, the two, who apparently had never met, were allegedly given alcohol by team members. The accuser allegedly drank both her drink and the drink of the other dancer. The second dancer has reported that the accuser was sober when they first arrived; however, that did not seem to be the case at the evening’s end. Around midnight, the dancers began a strip show.

Reports vary, but the show lasted anywhere from several to 10 minutes when dancers stopped after comments were made by the lacrosse players. According to the lacrosse players, the dancers went into a bathroom where they remained for more than 20 minutes. According to the dancers, they fled the house until a player came outside and apologized. The accuser says she went back inside and was raped and assaulted for more than 30 minutes by three men. However, at 12:30 am, a time stamped photograph shows the accuser on the porch of the house and then other photographs show her in the car of the second dancer looking disheveled in each. There are also photos that seem to suggest that the accuser arrived at the party already having suffered some of the injuries she complains were caused by the lacrosse players.

As would be expected in a case such as this, the versions of the events vary greatly. However, several things seem to be confirmed. The police were dispatched to the house in response to a 911 call after 12:00 am. It appears that some of the lacrosse players made racial epithets to the dancers causing the second dancer to call police, though she complained of nothing other than racial insults and there were no cries for help. Ultimately the second dancer drove the accuser to a Kroger grocery store to which the police were dispatched. Apparently the responding officer noted that the accuser was “passed out” in the car, but no one raised the issue of rape, nor did the second dancer even believe the accuser had been raped. The accuser was taken to a local hospital and it was there, some two hours after she left the party, she first reported having been raped; though it was more than a day before she provided a statement to the police as to what she alleges occurred.

Shortly after the alleged rape became public, the remainder of the Duke Lacrosse season was canceled. Then the case became a national news story. Since this time, tensions in the town have been high, fueled by speculation, claims of racism and legal posturing.

After news of the case broke, though not immediately, the Durham County District Attorney, Michael Nifong, took charge of the investigation and announced that DNA test were going to be conducted to rule out suspects. It was commonly accepted that these test would identify anyone on the team who may have participated in any sexual activity with the accuser and that those who were excluded on the basis of DNA evidence would be cleared from any further scrutiny. However, when the results of the case came back, there were no matches to any of the players and the DA was quick to continue his bravado with the case and hammer home his intent to continue with the prosecution. So while the DA will have to proceed with a rape case void of DNA evidence, two of the Duke Lacrosse players have been indicted and arrested. However, it was revealed that one of the two men arrested has provided an alibi that, if you consider the DA’s timeline, gives the Defendant less than 5 minutes in which he could have committed any attack on the victim. The second defendant has also provided an alibi showing he did not arrive at the party until after the alleged rape occurred. Additionally, though the alleged accuser has claimed that three men were involved in the rape, only two have been indicted. However, the DA has said that there may be another indictment.

Meanwhile, the two arrested lacrosse students have been expelled from school while the case moves along. The defense attorneys do not appear interested in resolving the cases against their clients by way of plea saying that their clients are innocent. Given this position by the defense and the DA’s statements as to the strength of his case, the DA has been standoffish in talking to the defense, making a trial appear likely.

The media has reported that the DA has been the victim of political pressure and has been accused of not acting quickly enough. District Attorneys in North Carolina are selected by popular elections and the current Durham DA is up for reelection, with the primary elections occurring in May of this year. This case occurred just as campaigning was becoming heated. Given this, the DA has been criticized not only in the media, but by his challengers for his handling of the case. However, criticism aside, it is generally agreed that the DA was perhaps too taken by the flood of media and television cameras that descended on Durham and that he was perhaps to quick to speak and taut the accolades of his case. For the past few weeks, the DA has kept his mouth shut, not even speaking to defense attorneys concerning the case, even refusing to meet with them to review alibi evidence.

Duke University is a tradition rich, expensive university; however, another Durham university has found itself involved in the case. This school is North Carolina Central University, a predominately African-American school, where the alleged victim attends classes. The result? Given the elevated socio-economic background of many of the lacrosse players and the background of the accuser, racial tensions are high. Media exposure is doing little to help the situation. The addition of others such as Jesse Jackson and the Black Panthers are not helping the tense climate in the town. It has been reported that many students on the NCCU campus have already resigned themselves that the wealth and status of the Duke Lacrosse players means they will beat the charges against them as they have the money to pay for the best attorneys and best legal defense around.

Rape cases can be proven without DNA evidence, but such cases are not simple. Given the inconsistencies in this case and the credibility issues that have already arisen concerning the witnesses, this case will be especially difficult, though North Carolina has a rape shield law that provides protection for rape accusers. Since the indictment of the lacrosse players, it has been learned that the second dancer is not the most credible of witnesses either. The second dancer soon after the alleged rape did not think the accuser had been raped; however, she has since revised her story, though she is vague on the details of why there has been a revision. She has simply said that she has not changed her story, just her opinion of what happened. (It should also be point out that the second dancer contacted a New York PR agency soliciting information on how to best “spin” the situation to her advantage.)

In addition to this, the players have what appear to be solid alibis, it has recently been learned that the accuser has previously made similar accusations against three other men for rape. Perhaps most damaging to the DA’s case, there have been recent reports that the alleged victim may not go forward with the complaint, saying she may not testify. Though even if the accuser decides to testify, there will be considerable legal maneuvering concerning the accuser’s prior rape allegations. It is not a foregone conclusion that a jury would hear this evidence, but such evidence is not automatically excluded.

Should the case go to trial, it is likely that one of the focuses of the defense’s case will be not only the manner in which the police handled the case, but the manner in which the DA has handled the prosecution of the case. Some of the actions of the police are falling under scrutiny and for what appear to be good reason. One action in particular that is being questioned is the photo lineup that the accuser used to identify he alleged attackers. The accused was shown a PowerPoint presentation that consisted of headshots of only the Duke Lacrosse players. This violates the police department’s own policy concerning photo lineups. The lineup, according to policy, was to be presented by a person other than the investigator and, for every suspect there was to be certain “filler” photos of individuals not the subject of investigation. However, the lead investigator conducted the presentation and the photos shown were only those of lacrosse players. The defense will likely argue that as the photos were only lacrosse players and all pictured attended the party, the police sent the message that the accuser should pick three of the players. As well, searches conducted by the police were delayed. For example, the house where the party occurred was not searched for two days after the party giving rise to the argument that any party evidence, perhaps evidence favorable to the players, was lost or destroyed. Police has also yet to obtain and review time stamped photos from the party. Many also believe that the DA has not identified evidence he may have that exculpates the players, all the while proclaiming the player’s guilt.

So, the question that arises from all of this is will the two accused players be found guilty? The short answer is it is too soon to tell. It appears likely that unless something such as the victim refusing to testify or some clearly exculpatory evidence surfaces, the case will go forward to trial as the players appear unlikely to admit to any guilt. However, it is important to remember that when a case is tried before a jury, certain rules exist, in this case, the North Carolina Rules of Evidence, that control the evidence a jury can consider when determining guilt or innocence. It is also important to remember no such rules exist in the media and the jurors can not consider anything they had heard previously, only what comes before the Court by way of testimony. One problem here is that the jury pool in Durham is likely quite close to having been tainted meaning the argument may be made by the defense that it will not be possible for the Defendants to receive a fair trial. While court rules do not allow for trial by ambush and the DA will have to turn over any exculpatory evidence, it does not have to be turned over immediately. So, if the DA does have any additional evidence, it could be sometime before we see it.

At the end of the day, it is not possible to determine what the outcome of the case will be at this stage of the process. It is fair to say that any disposition is probably months away and could likely take a jury’s verdict to end it; however, it is even now too early to say if a trial will be held at all. At this point in the process, the only thing that can reasonably be assured is that the community will likely remain polarized; the media will continue to feed the frenzy and learning what exactly happened will have to wait for some time.