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Slate's Jurisprudence: Duke Rape Case Rorschach

MADELEINE BRAND host:

This is DAY TO DAY, with this story coming up: a legal circus, literally. Animal rights activists go after a circus for its treatment of elephants. I'm Madeleine Brand.

ALEX CHADWICK host:

And I'm Alex Chadwick. First, the alleged rape of a stripper by Duke University Lacrosse players is drawing enormous news coverage. Even without the celebrity factor that highlighted charges against basketball star Kobe Bryant and singer Michael Jackson, one thing that makes this case different from those is that there is already a lot of evidence that's been made public, though that doesn't necessarily make it easier at this point to know what happened.

Joining us to discuss the case is Dahlia Lithwick. She's legal analyst for the online magazine Slate and for DAY TO DAY.

Dahlia, welcome back. Remind us about the basic allegations in the Duke case, please.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate magazine): Sure, Alex. What's undisputed is that we had an off-campus party several weeks back. The Lacrosse team at Duke--all of whom at this party were white, there's only one African-American member of the team--hired two exotic dancers to entertain. What is disputed is that one dancer claims that she was brutally raped and strangled in a bathroom during that party. The player's claim nothing of that sort happened.

This is incredibly complicated, and I think has gotten national attention because there's a town gown issue about Duke and the larger community. The students were all white, the dancer is black. The students are being spun as extremely privileged and wealthy, the dancer was a single mother of two children trying to put herself through school by stripping. The D.A. is up for reelection, so there's questions about his motives, and just this whole layer of race, of gender, of wealth and poverty has turned it into a sort of a national flashflood of all of our anxieties.

CHADWICK: Already, these developments, Dahlia, lawyers for the players say there's no DNA evidence, and indeed, all of the players were tested for DNA samples. None of that tied them directly to the rape, but there have been two indictments in the case for rape.

Ms. LITHWICK: That's right. I mean, certainly, the prosecutor was quick to point out that just because you don't have a DNA match doesn't mean that a crime didn't occur. Most rapists, he says, are in prison not based on DNA matches. A lot of other things could have happened, and there was identification by the alleged victim of three players, two of whom have been arrested.

The third one has not been indicted. So, certainly, the DNA evidence is crucial, but it's not a deal breaker.

CHADWICK: So, what about the other evidence in this case, because that's what makes this distinctive from Kobe Bryant or the Michael Jackson cases, isn't it, Dahlia? I mean, there's some way you're going to be able to figure out whether or not a crime took place.

Ms. LITHWICK: I think that's so important, Alex. This is not a date rape case. That Kobe Bryant case was so enormously complicated, because up until the sort of final moment of was there consent or not, the parties agreed as to what happened.

Here, you either have a brutal rape and strangulation and kidnapping, or you don't. It's not a sort of subtle question of he says, she says, and that's why the physical evidence becomes tremendously important, and as you point out, there is an enormous amount of it. There are fingernails that fell off, there's a lost shoe. There's bruising and then possibly more bruising that happened afterwards. There's a tremendous amount of photo evidence. So yes, this evidence is critical, because it's not about what each of the parties says happened, it's about was there a brutal assault or not.

CHADWICK: But Dahlia, can evidence also be open to interpretation, as can the mind of the accuser or the accused at the moment of the incident?

Ms. LITHWICK: Well that, I think, is the nut of the problem here, is that because there is so much physical evidence, Alex, it's being spun wildly by the lawyers. And then you have the same evidence being used by each team to shore up their own case. One side says her fingernails fell off, clearly that means she was in an assault. The other side says, but there's no DNA evidence. There was no evidence underneath those fingernails that she was scratching and trying to protect herself. Moreover, they say she was painting her nails in the bathroom, that's why her fingernails fell off. So, every single piece of evidence is equivocal, and I think we forget that. We sometimes thing each piece of evidence is some sort of objective truth, immutable truth in itself. What we're learning from this case is that all the evidence really can be kind of cut both ways, and that it's important--crucial--not to look at this evidence and say, oh, I've made up my mind, because the evidence is not final, it never really is.

CHADWICK: Opinion and analysis from Dahlia Lithwick, who writes about the courts for the online magazine 'Slate' and for DAY TO DAY. Dahlia, thank you.

Ms. LITHWICK: My pleasure, Alex. Transcript provided by NPR, Copyright NPR.