Who Is She?

This morning, the Durham County District Attorney unsealed rape and kidnapping indictments against two Duke University lacrosse players, who promptly surrendered themselves. As with every single other high profile rape case, the general public has already come to know the defendants' names and faces while having no idea who the accuser is, pursuant to a policy that every media outlet follows, sometimes due to various state laws.

I find this rule to be very disturbing. The media has a constitutional right to cover and report on court proceedings and we should all be glad they exercise that right. If there is at least a finding of probable cause that a defendant committed the crime in question, whether by a judge or grand jury, the media should report the story if it is newsworthy. They should at the same time report the name of the accuser.

I don't write this with the chauvinistic attitude that men have the right to rape a woman with impunity. If a man rapes a woman, he should face severe punishment. As a former criminal defense attorney, I will freely admit that well over ninety percent of criminal defendants are guilty as charged. At the same time, each and every defendant has the right to presumption of innocence until a jury makes a finding of guilt beyond a reasonable doubt. In other words, the two Duke students, while certainly not choirboys, have the legal status of innocents, at least as far as this case goes. From what I have seen from news reports and from my experience, I would bet on them both walking with acquittals. That, of course, is subject to hearing more of the evidence.

When this case is over, even if the defendants walk, the stigma of a rape charge will follow them forever. It is much like Richard Jewell, who was the original suspect in the 1996 Olympics bombing when he was actually helping the victims. To this day, Jewell is still known as the guy who was accused of the bombing. The fact that the police never charged him is only an afterthought to most people.

Meanwhile, the accuser has the benefit of public anonymity. If the trial results in an acquittal, nobody will be the wiser as to who she was. She can proceed with the rest of her life.

Some might say that being a rape accuser is no fun and she has nothing to gain by going through such an ordeal. People said the same thing about Tawana Brawley, who accused New York assistant district attorney Steven Pagones and some police officers of rape in 1987. Al Sharpton immediately got on his soapbox and started a crusade againt Pagones. After a grand jury refused to indict Pagones because it found that Brawley was lying, Pagones obtained a $345,000 judgment against Sharpton for defamation, in 1998. That judgment remains unpaid. The last I saw or heard of Sharpton was...yesterday. He was standing on a podium and nodding along with Jesse Jackson, who was pledging to pay the Duke accuser's college tuition.