Friday, December 22, 2006

Just Like That

Well whaddya know? Charges of rape in the Duke rape case have been dropped now that the accuser is no longer sure she was penetrated during the "attack." Well, duh! You can't get penetrated by your imagination, sweetie!

Alright - I half apologize for that last comment. The case hasn't gone to trial yet, and until it does we technically don't know who's telling the truth. Maybe it is as she says, and maybe the explanation for her constantly-shifting memory is that she was afraid the police wouldn't take her seriously or something - or else it has to do with the trauma of the attack. Fine - it's possible.

It's just that it's getting harder and harder to believe. For one thing, the prosecution has had since March to get its story straight. Even accounting for trauma, it's hard to imagine that they could still be waffling about matters so crucial as what the charges are. Then there's all the accumulated baggage up to this point. The "other" stripper has also changed her story more than once, there's plenty of circumstantial evidence that says the boys charged weren't at the party at the time of the attack, we know that the prosecutor used an improper screening method when asking her to photo-ID her attackers, the prosecutor himself has a lot of political motivation to pursue this case regardless of its merits, and DNA tests have failed to turn up any of the accused boys' DNA even though they now clearly show that she had sex with someone that night.

The fact that they're dropping this particular charge is especially telling. Recall that originally Nifong gave a fairly unconvincing argument that DNA evidence was less important than testimony and other physical evidence. It went something like this: there is no DNA evidence in 70-80% of sexual assault cases, and yet convictions are obtained. True enough - but what he's leaving out is that in most cases the victim doesn't report the attack until days or even weeks later, by which point most of the DNA evidence has been cleaned off. In this woman's case, a rape kit test was administered the same night the attack supposedly took place, so however "normal" it may be to prosecute a case without DNA evidence, it's highly irregular in this particular kind of case. Nifong originally said that the DNA tests would provide "conclusive evidence" that a rape had occurred. In this case, lack of same should be equally conclusive evidence of innocence, as Nifong well knows. And yet he chose to press ahead with the rape charge anyway, saying that the victim's testimony was enough. Well, now he doesn't even have that. He's tried his best to make this charge stick and hasn't been able. Isn't it time to maybe start rethinking some of the other charges too?

One really does start to wonder where Nifong's "certainty" is coming from if not from political expediency. His single testimonial is clearly unreliable. True, a medical test shows injuries "consistent with rape," but the prosecutor of all people should know that those injuries could just as easily have come from any man. There is nothing about them that links the people specifically accused to the crime. Put bluntly, Nifong's case seems to rest on the idea that a woman wouldn't lie about the details of a sexual attack - but women lie about these things all the time. There is independent reason to believe that this particular woman would do so.

It has been suggested that the injuries came from her boyfriend and she's lying to protect him. That's a pretty standard reason for making up a rape story, and I see no reason why Nifong shouldn't independently pursue that angle. That's why its so infuriating to read things like this:

But Wendy Murphy, a former prosecutor who now teaches at the New England School of Law, said the decision could actually help Nifong by keeping any discussion about the results of the DNA testing away from the jury.

"It may be that this is a strategic move to insulate the trial itself from a sideshow that certainly would have overwhelmed all the other evidence," Murphy said. "A sideshow about her sex life."

With all due respect (which doesn't seem to be much), her sex life is not "a sideshow" at this point. It's a crucial fact of the case. It would be a "sideshow" if Nifong had direct evidence linking those injuries to the players, but he doesn't. Absent such evidence, it bleeding well DOES matter who else she might be having sex with and how often.

How, even in cases of trauma, can a story go from "I was shoved in a bathroom and vaginally and anally raped" to "I was in the bathroom and they touched me wrong?" It doesn't seem possible. And so I find it really hard to believe that there's a case here at all anymore. I'm guessing this rape just didn't happen, the chick's making it up, and I guess Nifong probably knows that by now too. Maybe he calculates that it's worse to just back out - and he's probably right. It'll go to trial and he'll lose, and hopefully the voters will quietly send him packing at the next available opportunity. I can't say I'm a big fan of getting Gonzales involved, as has been (formally) suggested. But I wouldn't mind the state legislature taking up the issue. Since the legislature and Governor Easley don't get along, and since Nifong is (originally) an Easley appointee, it's not an unrealistic hope.


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