I also wonder if the end result of this case will be a massive civil suit brought by the three young men involved. It’s hard to win civil cases against the State, but not impossible in cases of egregious wrongdoing.

From the Washington Post:

The North Carolina State Bar has charged Nifong, the district attorney in Durham County, with several violations of the state’s rules of professional conduct, all tied to his handling of the lacrosse case.
…
[Nifong] aggressively pursued the case, at one point calling the lacrosse team “a bunch of hooligans” in a newspaper interview.

That interview, along with several others made in the case’s early days, formed the basis of the bar’s initial complaint against Nifong, which said he made misleading and inflammatory comments to the media about the athletes. The bar would later add allegations that Nifong withheld evidence from defense attorneys, and lied to both to the court and bar investigators.

Read the whole thing yourself.

The other is Sailor’s view that increased investigative resources will help find the real rapist in case of a mistaken identification. That presumes cops, having seen an accuser point to the guy, will go on investigating, looking for somebody else. Based on what? Where would you start? And then, if the cops bring in some other guy they think more likely than the one the accuser named and say, we think this guy is a better bet than Fred over there, now what? The accuser has a problem, doesn’t she?
The only thing that the increased investigation would do is to find against the accuser’s identification. Working against the accuser. Proving her wrong That ought to play well.
How long do you think a police department could keep that up?

Our system really does do a poor job taking care of victims. And it really does do a pretty shitty job of convicting actual rapists. So a lot of people want to fix those problems.

There are two main categories of suggested improvements. The suggesting people don’t always categorize them right which is how arguments start:

1) Solutions which have benefits, but no legal costs; and

2) Solutions which have both benefits and costs in a legal sense.

the first category is important, though not so obvious. It’s ENTIRELY possible to improve problems with rape cases, without taking any of the defendants’ rights away. It costs money, but real solutions exist.

Three easy examples are 1 ) Better/more police investigative services for rapes (helps find ‘real’ rapists and separate them from the falsely accused) 2) better/more rape crisis counselors (helps victims without hurting defendants); 3) Better scientific testing and/or scientific process (there’s really no excuse for not having easy, functional, bulletproof, nice-as-possible rape kits, for example)

Oddly enough, this type of solution is rarely discussed. However when pressed I have rarely met anyone who doesn’t support these types of improvements. i wish the two sides who disagree with the stuff below would realize that there’s a whole category of things they could agree on.

The second type are not really “solutions” but are more accurately “trade offs.” they usually involve some sort of re-balancing of innocence, guilt, evidence, etc etc. As a lawyer, I don’t generally support these, for a variety of reasons. Rape shield laws are (for me) a rare exception, where the benefits so vastly exceed the costs IMO that it’s worth it.

The main arguments I’ve gotten in with folks is that when i say “that’s really a trade off, you know, with pretty serious legal implications–are you sure you want to do that?” they call me a rape apologist. So I just stopped arguing with them; it’s a waste of both our time. It took me a while to figure that out, though ;)

Sailorman:
Yes, there’s always a balance to be struck. And “no small matter” is my opinion, and not quantifiable; I put it in to symbolize the basis of our legal system. Many, many legal systems around the world either de jure or de facto are not so based.

The main effect of a rape shield law is not, as some think, in actually changing the outcome of a case once it is in court. No, the main effect of rape shield laws is improving the %age of worthy cases that make t to court at all …

I haven’t asserted otherwise, and would not, as I am not all that familiar with rape shield laws other than the general points that have been discussed above. I’m thinking more of those who would advocate changing existing law than of those defending it. I’ve followed some links lately on various “radical feminist” blogs and have seen a number of posts that think present law is way too unfavorable towards complainants in rape cases and seem to desire to carve out an exception for the legal concept (I’m not talking moral/personal here) of “presumption of innocence” in rape cases.

If he identifies the mugger, we may doubt that identification for various reasons, but we don’t (again, absent strong evidence to the contrary) dispute that the mugging took place.

RonF Writes:
April 16th, 2007 at 1:08 pm
But our criminal justice system is supposed to be designed to put the interests of the defendant above the interests of the accusers; to make its top priority to ensure that no person loses their liberty unjustly.

nope. That “no person” is simply wrong. There’s a balance to be struck. If we really wanted “no person” to ever be convicted wrongly, we’d probably have to chuck the entire judicial system.

The system is already strongly biased towards release of the guilty over imprisonment of the innocent. And that’s how it should be. Rape shield laws, well drafted, don’t change the fact that the bias exists. They do change the balance somewhat, but 1) only a little, and 2) for a worthy cause (discussed below)

A small increase in false convictions is no small matter, and whether the increase of convictions for real rapists makes that justifiable is highly debatable.

What does a general claim like “no small matter” really mean? It’s worthless unless you ALSO consider the benefits of the increased convictions.

It’s important to understand what rape shield laws do, and don’t protect against.

they don’t prevent the defendant from giving evidence relating to prior relations with the accuser. They don’t limit the defenses the defendant can raise–from misidentification to malice. they don’t preclude a claim of consent. They don’t prevent the defendant from exploring the intimate details of the case at hand.

What do they do? really, not much (depending on your viewpoint): they basically prevent the defendant from discussing the prior sexual history of the accuser without first proving that the evidence would be highly relevant to the case. They cut off the “sluts deserve it” defense.

Now, the rapes are still going to be just about as hard to prove. There are still the issues of consent, for example–that’s probably the biggest defense there is. And rape shield laws don’t affect the accused’s ability to claim consent. ALL THEY DO is to prevent the argument that the accuser consented because she did ____ in the past.

So they don’t do much there. But the benefit is large. What’s the benefit? By making the cost of bringing a rape charge less onerous, they vastly increase the chance that the court system will SEE THE RAPE CASE AT ALL.

The main effect of a rape shield law is not, as some think, in actually changing the outcome of a case once it is in court. No, the main effect of rape shield laws is improving the %age of worthy cases that make t to court at all And that benefit is so large that the small possibility of convicting the odd defendant incorrectly is well worth it.

I don’t think that anyone wants to convict more innocent people in order to also convict more rapists; I just think they see it as very unfortunate but acceptable collateral damage in order to achieve the objective of convicting more rapists.

This is the heart of many arguments about rape law; the idea advanced by many rape victim advocates that, since “non-violent” rape is so hard to prove, we should relax the standards for conviction. Getting the guilty into jail is more important in rape’s case than in other crimes, and that convictions of the innocent is somehow less horrible or important. I think the meme of “if a woman claims she’s been raped, believe her” is advanced in part to lessen this; to make it seem as though this isn’t much of a risk because all accused are guilty anyway. This case shows us different.

I don’t know if what I have to say applies in the USA but here in the UK feminists are doing nothing of the sort. What we are demanding is that rapes be properly investigated and the law properly applied.

Conviction rates for rapes vary enormously around the country and detailed evaluations have shown that the *majority* of rape cases fail due to the poor reponses from the police and prosecutors. In London, 80% of reported rapes never even get as far as the prosecutors office.

Moreover ‘adopt a believing response’ is not and never has been a legal demand but a response to the tendency of huge swathes of the general public to begin from a position that all rape vicitms should be treated with suspicion.

I’m just logging on to this thread and after having read all the way through, I am sorry to hear of your ordeal and the cruelty shown to you by Chris. His attack on you was just as savage as what that “thing” did to you.

And as for “normal rape”.

If you are reading, Chris, there is no such thing as normal rape.

Rape is the most contemptible form of hatred a man can show a woman.

And Chris, as for women reporting less rape, pre-1960:

It depended on the race of the victim as well as the race of the accused.

That many black men were executed for “supposed rapes” in the South tells very well who the victims were (who were believed) as opposed to the victims were (who were not believed).

And it goes without saying, to those who know the history of the South:

If you were a white woman you would receive justice for rape if the accused was a black man.

But, on the other hand, if you were a black woman, you would have received NO JUSTICE for rape if the accused was a white man.

heh

Was it to me or something?

And thanks Lu *S*

I think the meme of “if a woman claims she’s been raped, believe her” is advanced in part to lessen [concern about wrongful rape convictions]; to make it seem as though this isn’t much of a risk because all accused are guilty anyway. This case shows us different.

Someone on this thread, and it may even have been you, RonF (I confess I’m too lazy to go through all the comments to find it), has already pointed out that generalizing from this case is probably a bad idea.

Julie HOC has also pointed out that it’s possible at the same time to say you believe a woman was raped and to support her as a rape survivor and to say to the accused rapist “I will presume that you’re innocent unless and until you’re convicted.” It’s not easy, but it’s doable. For the reasons I gave in my comment #92, I think that absent strong evidence to the contrary, we should believe a woman who claims rape simply because, even with rape-shield laws and anonymity policies, the deck is still stacked against her.

It’s also been mentioned that if the rapist is unknown to the victim, a rape may very well have taken place and the rapist misidentified.

I can think of at least one well-known case where the rape survivor went public, I think even before her trial, because she felt that all the anonymity tended to reinforce the idea that she might have done something wrong. I admire her, but I don’t know that I would do it in her place, and I sure don’t think every rape survivor should be forced into the limelight.

This is the heart of many arguments about rape law; the idea advanced by many rape victim advocates that, since “non-violent” rape is so hard to prove, we should relax the standards for conviction. Getting the guilty into jail is more important in rape’s case than in other crimes, and that convictions of the innocent is somehow less horrible or important. I think the meme of “if a woman claims she’s been raped, believe her” is advanced in part to lessen this; to make it seem as though this isn’t much of a risk because all accused are guilty anyway. This case shows us different.

I don’t know anyone (… which doesn’t mean they don’t exist …) who wants to convict more innocent people just because rape is so hard to prove.

The problem is that “rape” is inherently hard to prove in many instances because it isn’t like robbery, fraud, arson, etc. There might be physical evidence that sexual intercourse occurred, but there’s generally no physical evidence that consent did or didn’t occur.

The legal question comes down to consent — did she or didn’t she? If she did, it’s not rape, and if she didn’t, it is. What this means is that rape trials historically have been nothing more than a trial of the accuser, because she has to prove that she didn’t consent.

This is unlike all manner of crimes in which physical evidence DOES exist. Unless I ransack your house, I could (but I’d be laughed out of court …) claim that you told me to stop by and take your VCR for my party. Or that you offered to lend me your car, so I stopped by to take your car. Or, gee, you forgot your purse on the subway, and I was just rummaging through it to call you up and return it, but, gee, I just got distracted. Go figure.