Sojourns: True Crime 2

Rape is unique among crimes because its investigation so often turns on the question of whether a crime actually happened. Was there or was there not a rape, did she or did she not consent, was she or was she not even able to consent? These sorts of questions are rarely asked about burglary or murder. And rarely do those accused of burglary or murder respond that such crimes didn't happen (OJ didn't say Nicole wasn't killed, just that he didn't do it). Most criminal investigations accordingly turn up a culprit who then defends him or herself by saying that he or she did not commit the crime. In contrast, most widely publicized rape cases involve culprits denying that a crime took place. She was not raped; we had consensual sex. Or, she was not raped; we didn't have sex at all.  And so therefore despite the best intentions of state legislatures and women's advocacy groups, the prosecution of rape cases still often turns its attention to the subjective state of the victim. She consented at the time and now has changed her mind. She has made the entire story up out of malice or revenge or insanity.

The ongoing story at Duke University exacerbates these basic features of rape law in several respects. Most obviously, it places the ordinary uncertainty of the case in the whirlwind of publicity. As is often so in rape cases, the story is at root about whether or not a crime happened. Every detail of the incessant reporting has circulated around and over a core piece unknown data: not whether the woman consented to have sex, but whether anyone actually had sex at all. All of the attention paid to the DNA testing in the early stages of the investigation was in the hope that this question might be answered. Human testimony is fallible. Science is not. Or so we told by shows like CSI, with their virtuoso forensic detectives. And so we are led to believe by the well-publicized use of DNA testing in recent years to exonerate and incriminate defendants past and present. As it turns out, however, the DNA testing in this case only adds to the uncertainty. According to the District Attorney most rape cases involve no DNA at all. We thus await the evidence of her body itself, the sort of specific damage wrought by forcible sex. Her body will tell us the truth, and so get us out of the back and forth of merely verbal accusations and denials.

Even this highly pitched sense of mystery and uncertainty is ultimately the ordinary stuff of well-publicized rape cases. Were the story only about crime or no-crime, the American desire for closure and distaste for the open-ended or the unsure would eventually kill off interest. What is distinctive about the Duke story is the particularly delicate politics of race and the specific context of college athletics. About the former, little more need be said than the obvious. The story is about a twenty-seven year old African American mother working her way through a historically black college who has accused three white students from the nearby elite university of rape. On this accusation rest several hundred years of history. Were this not so highly charged an accusation, the defendants' strategy would surely be more corrosive than it has thus far been. Rape law places unusual and often unpleasant (and unfair) burden on the subjective position of the victim, on her sense of her own consent or her reliability as a witness. Thus Kobe Bryant was exonerated because the accuser was traduced in public. We have (thankfully) seen little of this so far in the Duke case, even though the accuser is an exotic dancer with a criminal record who worked for an escort service. The predictable course of events would be for the defendants to claim the accuser is deranged and unreliable and, as far as possible under state law, to bring in the shadier aspects of the woman's employment and criminal history to do so. That this hasn't happened, or hasn't happened yet, is revealing about the way in which race works in public discourse.

Of course the story drew the kind of attention that it did at first not because the accuser was black but because the accused were lacrosse players at a major university. What has emerged is something like the dirty secret of athletics at an elite institution. Like Stanford or Michigan, Duke has always maintained a double image as at once an extremely selective, prestigious institution of higher-learning and a powerhouse in several key sports (especially basketball). Unlike the Ivy League, Duke and Stanford actively recruit and provide full athletic scholarships for athletes. They also maintain a vigorous booster culture of fans and alumni. The result is a separate culture for "student" athletes, who don’t really have to take the same classes as everyone else, and who are apparently coddled in lifestyles of abuse and debauchery.

The agreed-upon facts of the case ought to be seen in this light. The lacrosse team threw a party for themselves and hired two exotic dancers from a local escort service. The dancers arrived and performed their routine surrounded by a ring of taunting and beer-drinking men. Alone and without security, they complained of their treatment and left. They were coaxed back inside. One claims to be have been raped. Whatever sexual assault may or may not have taken place, the facts of the case are set against the backdrop of an aggressive Neanderthalism that is precisely the sort of thing a university should be designed to counter.

As with most accusations of rape, the legal case is certain to revolve around the question of whether a crime happened. The coverage will most likely turn to a predictable discussion of credibility combined with new revelations about the accuser and defendants' relative truthfulness. One shouldn't forget what this case has already revealed.