What If the Duke 3 Had Been Black?

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Throughout the Duke non-rape case, blacks (and some whites) in Durham have repeatedly asked the same question: What if the three white Duke lacrosse players charged with rape had been black athletes at nearby North Carolina Central University? For the most part, the standard answer has been that they already would have been railroaded into a conviction or would be languishing in jail, unable to post bond.

Yet, given the history of athletes and rape charges, I have serious doubts about the standard answer, and I believe that we need to examine this question up front, as opposed to making speculations. Granted, the Duke 3 are white and no blacks have been charged in this case, so one can argue that I only am speculating, but I think there is a recent history of similar charges that can provide at least a partial roadmap to see what might have happened.

It is my opinion that had the accuser in the Duke case made such charges against black athletes, the case would have developed much differently than it has for one important reason: the black community of Durham would have demanded that District Attorney Michael Nifong pay attention to the huge amount of exculpatory evidence that exists — instead of trying to explain it away with half-truths or outright conspiracy theories. Nifong does not even have to acknowledge that such evidence exists because the most influential and politically powerful blacks in Durham demand that it be ignored.

My claim, obviously, is not going to be popular with many people, so I have much explaining to do. Thus, I will start at the beginning, and I also will deal with a well-publicized case in Chattanooga last year in which six black football players for the University of Tennessee-Chattanooga found themselves charged with the gang rape of a white UTC female freshman.

Claims and arrests

Because the female accuser in this case alleged three black males raped her 12 years ago (in a case that never was pursued because police figured the claims were not credible), she certainly would be capable of claiming rape by black males today. Thus, I begin by assuming that the accuser tells police that three black football players from NCCU have raped her.

Because of the way the rape laws in North Carolina are written, if a woman makes an accusation of rape, the police must investigate. However, the circumstances under which she made her claim against the Duke 3 — she was about to be committed to a psychiatric unit, since it was obvious she was drugged — police very well might have been skeptical. As one follows the Duke case, one finds that in the early hours after the accuser made her statements, Durham police were skeptical.

For example, the police did not come to the house where the party took place for two days (they came to visit on March 15), and the white lacrosse players have related that police told them that nothing was going to come of this, as the police did not believe the charges — and the accuser — to be credible. However, within a few days the charges gained speed as feminists at Duke heard the news, and the atmosphere exploded at NCCU as well. From there, Nifong fanned the flames, and was able to form an important alliance with Duke feminists, the local NAACP, people at NCCU, and other black activists.

Had the accused athletes been from NCCU, it is doubtful that the political alliances that have pushed the Duke case from the start would have been put together. While no doubt some of the feminists at Duke would have made some noise, their reaction simply would not have been as intense as it was when white Duke males were accused. I suspect that some of the feminists at NCCU might have had a candlelight vigil or two, but the overall reaction would have been much more cautious.

The reason for my saying that is that over the years, various black communities have developed what I call “b.s.” detectors when it comes to criminal charges. Blacks — in most situations — have come to be skeptical of the police and prosecutors, and for good reason. They are more likely to be wrongfully identified, and there is deep resentment in the black community for what has happened to them in the past. Therefore, had the accuser in the Duke case said that three black men raped her, I suspect that blacks in Durham would have been pretty suspicious of the charges.

Furthermore, had the woman claimed that three black Duke athletes had raped her, I suspect that the black community still would have had the b.s. detectors working. While there is great resentment in Durham toward Duke University, the resentment generally is directed toward white Duke students, not the blacks.

In the case of the accuser, she had a past that made people suspicious. Kristiana Bennett, who was preparing a sympathetic story about the accuser for the NCCU newspaper, found by talking to the woman’s neighbors that her credibility definitely was in question. However, she realized:

Not only did she and her fellow students instinctively trust the accuser, they understood the political implications of doubting her. This case was about much more than the facts, which were still in question.

Furthermore:

…in the course of her reporting, Bennett found people who said unflattering things about the accuser. They offered the kinds of details that defense attorneys hired private investigators to find, and Bennett wished she had never heard them.

In ordinary circumstances, this would have been strong ammunition to shoot down the entire thing, and no doubt her detractors in the black community of Durham — the people who knew her — would not have been so reluctant to come out publicly against her. But the Duke case was and is different; the accuser is black and the athletes she was accusing of rape were white and wealthy and went to Duke.

As the Washington Post pointed out in a May 7 story, the accusations are symbolic in the black community in Durham. In fact, as the exculpatory evidence came in, evidence that would be devastating in an ordinary rape case, the blacks in Durham pointedly ignored it or declared it to be invalid

When Nifong promised that DNA tests would identify who was “guilty” of rape, the fact that the DNA tests were negative only heightened the community’s anger, since it cast doubt on what had to be true. Thus, the word came out that perhaps someone at Duke University Hospital must have tampered with the DNA samples, even though no one offered proof.

Still others insisted that the young men must have worn condoms, although a very thorough examination had found no condom residue, and the woman’s stories, though very inconsistent, all had the same information: no one wore condoms. Feminists chimed in that the very fact that the woman first claimed that 20 people raped her, then five, and then three, with the cast of characters changing with each story, was proof that she was raped, since a woman who has been traumatized by rape is not going to have a clear memory.

(Later, the New York Times would insist that the woman had told a “consistent” story, its information coming from a report by Durham Police Sgt. Mark Gottlieb, who compiled a 33-page report mostly from memory several months after the accuser levied the charges. The “consistency” story also was said to be “proof” of a rape; feminists and police have not tried to explain why there were both a set of contradictory stories, and also at the same time consistent stories; they just say that everything is true, and is “proof” that there was a rape. In other words, any story will do when police and political activists are trying to engage in an obvious frame-up.)

Even on the surface, the information is devastating, and I contend that in ordinary circumstances, people in the black community would have seen through the nonsense. While there might have been accusations at the beginning, it is doubtful that police and prosecutors would have been willing to take black defendants to trial with a huge amount of exculpatory evidence in the mix. There is little doubt the black community in Durham would have protested it vigorously — and rightly so.

The Chattanooga Case

In late October, 2005, a black female freshman at the University of Tennessee-Chattanooga claimed that six black UTC football players gang raped her. She claimed to have tried to fight them off, but that she was overpowered.

In the days following the charges, the rape crisis machine went to work. There were the obligatory candlelight vigils, campus meetings on sexual abuse, and the like. The UTC football coach kicked them off the team, and after the six were charged with rape, UTC expelled them as students.

There are a number of differences with the Duke case. For one, there actually was sexual intercourse and the DNA to prove it. No one was denying sexual contact, as is the situation in Durham; instead, the young men claimed the sex was consensual.

Other differences exist, too. First, unlike in the Duke case where bond was set at $400,000 apiece, the UTC players had much lower bonds. Second, there were only charges, and the prosecution had to face a preliminary hearing, something that Nifong deftly avoided before having a grand jury indict Reade Seligmann, Collin Finnerty, and David Evans.

While preliminary hearing exist only to determine whether there is enough prosecutorial evidence to send the case to the grand jury, Jerry Summers, the UTC players’ attorney forced the prosecution to show its hand. Even though the prosecution was able to take advantage of rape shield laws by convincing the judge to keep out evidence that the female student had spoken of her many sexual encounters on her Facebook website, Summers was able to demonstrate that the young woman had initiated sexual contact with a number of the players and had engaged in sex with some of them long before the night in question.

(A person who is much closer to the story than I am told me that the girl had engaged voluntarily in sex, but later her friends criticized her. She later changed the story to claiming a rape. The judge at the preliminary hearing simply did not buy her story.)

After the judge dismissed the charges, the prosecution declined to take the information to the grand jury, despite the fact that grand juries almost always indict when prosecutors demand they do so. In other words, had the prosecution in Chattanooga wished to carry the case farther, they realized that they could lose at trial and decided not to take it any farther.

Not surprisingly, the black community, from the churches to the NAACP, sided with the players. Most important, no one really protested the judge’s decision to throw out the charges. There were no marches, no speeches, nothing. The case simply disappeared — as well it should have.

Had the charged athletes in Durham been black, my sense is that the black community would have stood behind them, especially given the accuser’s reputation and the exculpatory evidence. I seriously doubt that community activists like Victoria Peterson would have claimed a conspiracy to tamper with DNA evidence had it exonerated black defendants.

No, the refusal of the black community in Durham to let go of their insistence that the Duke 3 raped the accuser is the simple fact of racial politics. Here is their chance to nail some white males at Durham, and they certainly are not going to permit DNA or other exculpatory evidence to stand in their way.

Therefore, as I pointed out in another article, the various civil liberties groups in Durham like the NAACP and the ACLU have decided to abandon literally everything for which they have stood in the promotion of justice in order to try to railroad the Duke 3 into a conviction. Irving Joyner, a law professor at NCCU, suddenly has given up his usual support for changes of venue in racially-charged cases, claiming that because he believes a Durham jury would be more likely to convict, therefore, the trial must be held in Durham.

The real problem here is that racial politics, as well as the politics of entitlement, have clouded the judgment of many Durham residents. As I stated previously, I have no doubt that blacks in Durham in an ordinary rape case would have recognized the situation for what it was and would not be pressing for trial and conviction. Indeed, blacks have been railroaded in courts of “justice,” and they rightly have had a historical reluctance to believe everything a prosecutor and the police might say.

Unfortunately, that is not the case here. And unfortunately, the black rush to judgment and their insistence on ignoring DNA evidence and other things that point to innocence ultimately will embolden other prosecutors elsewhere to force through cases that not long ago would have been ignored or not seen the light of day. The U.S. justice system runs on precedent, and should this case proceed to trial and conviction (wrongful conviction, I would add), ultimately it will mean that innocent blacks males in the future will be wrongfully convicted of rape or worse.

Yet, I doubt anyone in Durham really is listening or is willing to understand the ramifications of what Nifong and others there are doing. We are seeing the politics of entitlement at work, and in this case, there exist many people in Durham who believe that they are entitled to a conviction, even if it is wrongful. Seligmann, Finnerty, and Evans are not real people to them, only political symbols that must be destroyed at all costs, and if this madness is permitted to continue, innocent blacks in the future also will suffer prison sentences or worse. Right now, however, the representatives of the NAACP and people like Joyner really don’t care about that; they just want to see people go to prison, even if they committed no crime.

December 11, 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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