Duke Saga—a Prosecutor’s Legacy

In just one year of obfuscation and several apparent lies to a judge, defense attorneys and the public in a single case, a North Carolina prosecutor has undermined decades of progress toward justice for all victims of sexual assault.

The saga involving Duke University men’s lacrosse team and an alleged gang rape one night in March 2006 did not need to unfold at all. Diligent prosecutors make certain every day that similar scenarios do not.

Durham County District Attorney Michael B. Nifong knew before a grand jury indicted two men in April 2006 that his witness’s statements did not match facts uncovered in the investigation. By pursuing a prosecution without verifying the allegations, the man who had been appointed to his job manipulated voters who were passionate about justice for black women. The move bolstered his successful primary election campaign May 2, when he won most of the black vote, according to news reports.

In the process, Nifong misused a woman with a troubled history, trivialized sexual assault allegations, abused the public trust, cultivated pernicious myths about violence against women, and made the pursuit of justice more foreboding for victims of rape. The North Carolina bar has made extraordinary accusations of ethical violations against Nifong, including concealing exculpatory evidence and misleading the judge who presided in the case. If the accusations are proved, he faces disbarment.

A full sharing of DNA evidence with attorneys for the three men ultimately charged—as required under state and federal law—likely would have prevented a year of agony for the defendants and the woman who made the allegations. The woman had told police that she had not had sex for about a week before the alleged gang rape, in which she reported experiencing violent penile penetration. However, the DNA results from the woman’s clothing showed traces of semen and other DNA from four men—none of them the defendants nor any member of the lacrosse team.

Nifong denied the existence of such evidence in court in December 2006, eight months after he knew the truth. During the same hearing, the director of the laboratory that conducted the tests said that the failure to include the complete DNA results was “an intentional limitation” arrived at between himself and the district attorney, according to news reports.

Even so, no one should doubt that something dreadful and threatening happened that night. According to news reports, two black women in see-through outfits began dancing about midnight. A photo shows them surrounded by seven men. Within minutes, witnesses agreed, one of the men said something about using a broomstick in a sexual manner. The dancers stopped, and an argument ensued. Someone yelled a racial epithet and said the men had wanted white dancers, not black ones.

The following hour is what has been in dispute.

False reports are filed as often for sex crimes as for other kinds of crime—about five percent of cases. A portion of these false allegations come from victims suffering from the trauma of a previous sexual assault—as the woman in this case allegedly was.

All victims face the cruel irony that experiencing one rape trauma tends to render a person not only more vulnerable to future assaults, but also can make future allegations less credible. Indeed, the defense attorneys in the Duke case pointed to the woman’s “failure” to pursue charges in a date gang rape she said she experienced at age 14 as a weak spot in her credibility.

In more than three decades since courtroom doors opened to victims of sexual assault, prosecutors have built a repertoire of skills and protocols to improve their craft. Among the most important: make certain to know the weaknesses in a victim’s statements, and probe trouble spots to ensure a just prosecution and to avoid exposing the victim to no end. The routine use of DNA has functionally re-imposed an archaic requirement for independent corroboration, but also often exonerated those wrongly accused.

In all this, had one public official been prudent with his power and had local police followed their own constitutionally sound procedures, the individuals and institutions involved in this case would have been far better off.

A single mother and college student who performed “exotic dances” for pay in front of a house full of men at an elite college might have been spared the public scrutiny of her vaginal walls and the body fluids on her underwear. She might have been spared the vilification of a talk show nation.

The long list of organizations that have publicly affirmed North Carolina Attorney General Roy A. Cooper’s decision to drop all charges in the case is a good gauge of the potential damage to the criminal justice system from such sensational prosecutorial misconduct. The North Carolina NAACP; the Rape, Abuse and Incest National Network; the conference of North Carolina district attorneys; a number of bar groups and local citizen groups have all concurred with the attorney general’s decision.

A more difficult question arises. As William J. Barber, president of the North Carolina NAACP said in affirming the dismissal of charges: “How do we work to ensure that the final decisions in this case in no way deter women of color from making claims of violations against them which violate their spirits and their bodies?”