The Dregs Of Duke

There are no heroes and no winners in the Duke lacrosse case, unless you count the North Carolina Board of Bar Overseers, which clearly did the right thing in disbarring the rogue prosecutor. Mike Nifong's selfish preoccupation with getting himself re-elected led him to not only seek an indictment that should never have been returned, but also to dissemble in public about what was going on in the investigation. His downfall should serve as a reminder of the power prosecutors wield, usually unchecked, to play God with people's lives.

That these defendants happened to be wealthy and white spared them the ultimate consequence of prosecutorial misconduct, which, for less lucky types, can be a lifetime in prison. According to the latest reports, the three defendants spent about $3 million in legal fees to win their freedom, which is $3 million more than most defendants have. Had they been poor and black instead of rich and white, they might still be sitting in prison.

The other announcement this week was that the players had reached a settlement with Duke University, which has been criticized for not doing enough to support its students. The problem here is: Had there really been probable cause to believe the students committed rape, in other words, had this been an honest prosecution instead of a dishonest one, the question of what a university should do is not so straightforward.

The young men say they want to work with Duke to change its policies in future cases, which is certainly understandable given their experience. But assume for a moment that the prosecutor had not been lying; that there was DNA evidence supporting the woman's account; that the accused really were refusing to cooperate as the District Attorney dishonestly claimed. In those circumstances, should a university protect students who have been charged with a serious crime, or protect the rest of the students who haven't?

I know of too many cases where women find themselves switching out of classes they wanted to take, moving out of the dorms in which they had comfortably lived, all because the university refused to take any action to protect them from classmates charged with raping them.

Hindsight is 20-20, but universities have to make decisions before juries do. When the choice is between those charged with a crime and those who are, under the standards of probable cause, their likely victims, it's hard to argue for protecting the accused at the expense of the victim. Lawyers always say that hard cases make bad law; bad prosecutors make for worse rules.

The woman in this case was obviously troubled, to say the least, and no experienced prosecutor or police officer would have brought charges based on her conflicting, inconsistent and unsupported accounts — unless he had an agenda of his own. There has never been a single study that proved women lie about rape more than men or women lie about other crimes. But when they do lie, and when it is as transparent as it was here, the only humane course is to steer them toward getting help, not take advantage of their obviously troubled state. As Rae Evans, the mother of one of the players, Dave Evans, generously wrote to me in the midst of this mess, the accuser was also a victim of Nifong's abuse of power, the fourth victim in a case that should never have been brought.

Finally, there are the young men themselves. Make no mistake. They didn't deserve what they got. But they were not drinking tea in church when this incident began. They had engaged strippers to entertain them while they drank and taunted them.

No one has denied that racial slurs were uttered, that the girls were treated badly, so badly that they left but were later convinced to return for more abuse. No one has questioned the authenticity of an e-mail sent to the group by one of the uncharged teammates, promising to "skin" the girls next time he had the chance. No, it wasn't rape, but it wasn't respect, either. There was a reason, beyond race and Nifong's nattering, why many of us believed a rape could have occurred in these circumstances. Rich white boys ordering up strippers for their amusement is not grounds for rape charges, but it hardly makes them heroes.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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