Duke, DNA, and the Law: Politics Over Principle

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The recent bonfire of accusations and stories in the case of the Duke Lacrosse team either is reaching a fever pitch, or has descended into the pit of the Theatre of the Absurd. Given the various people involved in this bad morality play, I pick the latter. Yet, it also tells us about the current state of law and politics in the United States, and from what I see, it is bad news all around.

Of course, the original story was neatly packaged and is a perfect setting for what modern (or postmodern) leftists have declared to be the current state of our society. A black female exotic dancer (which is a nice euphemism for a stripper) and a partner are paid to "perform" at a party attended by a number of members of the Duke University Lacrosse team. All of the players at the party are white, and there is underage drinking — lots of underage drinking — and things become rowdy. They start to use racial slurs at the women, who now are frightened of the mob.

Soon, the intoxicated white boys start pawing at the dancer, who becomes frightened. Suddenly, some of these drunken athletes pull the woman into the bathroom, where they beat, choke, and then brutally rape the dancer. She then leaves, goes to a 7-11 parking lot, the police come by, hear her story, and then take her to a local hospital, where someone says that her injuries are "consistent" with rape, and then she goes to the police.

Thus, the story explodes. First, there are the obligatory "Take Back the Night" candlelight vigils led by Duke University faculty and students. After all, everyone knows that the story is true. These are white, privileged jocks that always get away with murder. It was just a matter of time before it became obvious that athletes are a bunch of rapist misogynists, something that everybody knows at places like Duke.

In the immediate aftermath, three athletes voluntarily go to the police station without lawyers, give statements, and offer to take lie detector tests. The police refuse to give tests, something which should be the first hint that the people in "law enforcement" think something is wrong with the "victim’s" story and surely don’t want the evidence to get in the way of a good arrest and conviction.

Second, the story further detonates. The athletes supposedly were taunting local blacks, using racial slurs and the like. A 9-1-1 call goes to police, initiated by the dancer’s friend, and police respond within two minutes. However, the caller’s story has a number of inconsistencies, and when police check, there are no people in the area, even though the incident had supposedly happened just a couple minutes before. However, the accusation of racist taunts leads the president of Duke University to apologize to the blacks of Durham (which make up about 45 percent of the local population, creating a volatile "town-and-gown" atmosphere between the locals and preppy Duke) and puts the team’s season on hold.

From here, everything escalates at once. All but convicted in the press and by their peers, faculty, and administration at Duke, not to mention the entire black community of Durham, the players begin to understand that no one is going to listen to them, so they hire lawyers. This action inflames the accusers even more, and especially their chief accuser, District Attorney Mike Nifong, who is in the middle of a re-election campaign. A sordid email sent by one Lacrosse player to another is picked up by the DA’s investigators, and that is enough to have Duke’s president cancel the Lacrosse season and fire the coach.

Nifong appears on ESPN for an interview in which he declares that if the players are innocent, then they have no reason for having lawyers. Thus, their hiring counsel is "proof" of their guilt. However, Nifong does not mention the lie detector refusal, which is not surprising. Nor does he mention that at the start, all of the players cooperated, acceding to DNA tests, which Nifong already had declared would "prove" that the players had raped the woman. In the spirit of the lynch mob, ESPN published an article telling how much prison time the young men would receive if convicted.

Soon, the president of Duke condemns the players for hiring lawyers (while spewing "innocent until proven guilty" out of the side of his mouth, and not meaning a word of it), and faculty and students follow suit. Signs like "Get a conscience, not a lawyer" appear on campus, and no one — especially no one from the faculty of Duke University Law School where they allegedly teach principles of the law — objects publicly. The players have been accused, they are male jocks, and, thus, they are guilty. Verdict first, trial later!

What is happening at Duke is the inevitable result of the politicizing of rape. Before the age of feminism, rape was a crime against an individual, and the punishment for rape was severe. (Some states even imposed capital punishment for rape, so no one can say it was not taken seriously.) Today, however, rape is a crime against women, which is another way of saying that it is a political crime. Thus, the accusation of rape against someone is enough to provoke endless political rallies, not to mention the immediate pronouncement of guilt for the man or men accused.

(Wendy McElroy told me in a recent email that feminists actually do not like DNA tests, since a large number of men have been found to be wrongfully convicted of rape have had their convictions overturned. She writes that feminists "are more dismissive of DNA than you realize because it has too often contradicted the account rendered by female rape victims. Namely, DNA testing has identified and released from jail too many men who were wrongly identified by their alleged victims. This weakens the argument that you should always believe the woman.")

For all the talk of this being a "progressive" or "modern" era, rape accusations today are as much a political tool by feminists against men as they were against black men in the late 1800s and early 1900s. In 1906, a white woman in Chattanooga accused a black man named Ed Johnson of raping her, and he subsequently was arrested. At the trial, according to the records, he had an alibi and her testimony was less-than-convincing, but since she was white and he was black, the "believe the white woman" syndrome was very powerful, so the man was convicted and sentenced to hang.

He never made it to his official hanging. After Johnson’s attorneys had convinced the U.S. Supreme Court to issue a stay of execution, a mob broke into the Hamilton County Jail, took him to the Walnut Street Bridge, and performed the execution themselves, performing a brutal beating, hanging, and shooting on their own. (This case would have a far-reaching impact on lynching, and has been thoroughly researched since then.)

Today, we have what seems to be the opposite situation. Instead of a lynch mob of enraged white men carrying torches, we have feminists and their allies carrying candles and a DA telling local blacks that he doesn’t need any evidence to indict, try, and convict someone — someone — of rape. (By all accounts, the woman in question has changed her story and there are a number of inconsistencies to boot. However, the April 13 New York Times reports that the DA plans to indict one or more player.) People demand an indictment, trial, conviction, and lengthy prison sentences, not because the investigators have found real proof, but because the politics of modern feminism and race requires it. Evidence? We don’t need no stinkin’ evidence!

Lest anyone think that I am defending the behavior of Duke’s Lacrosse players that night, let me say that in some ways, these young men brought on this situation. After all, it was they who decided to have a party in which there was underage drinking (not that I support such laws, but that does not change the fact of what they did) which almost certainly would guarantee that a "boys going wild" atmosphere would commence.

(Let’s face it; the Duke party was only a tiny microcosm of what goes on at colleges across the country. Young people drink to excess with sometimes tragic results — one of our students here at Frostburg State University recently died of alcohol poisoning — and sexual acts are rampant and very public.)

Furthermore, bringing strippers to something like this not only was reprehensible and immoral, but also an invitation to whatever transpired. As a former member of an NCAA Division I track team (Tennessee, 1971-75), I can attest to the mayhem that can happen when athletes — or anyone else — and alcohol (and whatever else is available) come together.

Thus, the Duke Lacrosse players engaged in actions that by themselves were immoral and illegal. If Duke University had any real standards of morality and conduct, that alone would have led either to probation or outright expulsion. Instead, the university administrators and faculty have decided to engage in depressingly familiar actions of what passes for campus politics.

If this situation were not so politically charged, I seriously doubt whether rape charges would follow. Instead, we see something much worse, politics and government in action to railroad people into prison. What happened at the Duke party was ugly, but what has transpired since then is even uglier.

April 15, 2006

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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