Duke Case: Will Mary Doe’s Past Rape Report Be Admissible In Court?

It has recently come out that ten years ago, Mary Doe (the student who reported being raped by three Duke lacrosse players) reported being raped by three acquaintances (one of who may have been a boyfriend or an ex-boyfriend) to police. Although the report was made when Mary Doe was 18, she said the rape took place when she was 14 years old. From the New York Times:

The Creedmoor police chief, Ted Pollard, said the woman filed the report when she was 18, in August 1996, but said the assault had happened in June 1993, when she was 14.

Chief Pollard said the initial report did not explain why there had been a delay of more than three years between the alleged assault and when she reported it. He said Thursday that his office had only paper records from that time period and had not yet determined whether there had been a follow-up investigation.

“It says she was beaten, assaulted and sexually assaulted by three African-American males,” Chief Pollard said. “And she identified the three males.”

And from Essence:

The mother also told ESSENCE that when her daughter was 17 or 18, she was raped by several men, one of whom was someone she knew. The attack took place in the town of Creedmoor, about 15 miles northeast of Durham, and was a “set up,” according to the accuser’s mother. Although other family members confirmed that the alleged victim reported the incident to police in that jurisdiction, the young woman declined to pursue the case, relatives say out of fear for her safety.

It appears that Mary Doe and her mother kept the details of this from Mary Doe’s father for all these years.

Although a lot will be made of this from the “she’s lying” crowd, I don’t think a past rape report is evidence of anything. To say that this shows a pattern of false reporting, there’d have to be some proof that the earlier report was false, and no such evidence seems to exist. And being gang-raped twice in ten years is, from what I’m able to tell, a bit like being in a major car accident twice in ten years – unlucky, but not impossibly so.

Nor do the cases seem all that similar. In 1996, the rapists were three Black men whose names were known to Mary Doe. In 1996, the report was filed years after the fact. In 1996, Doe decided not to follow through on the charges. The “pattern” some folks see seems pretty slight.

How much will this matter, if this case gets to trial? It depends. The prosecutor has said that the jury will never hear about it, because of North Carolina’s rape shield laws.

A North Carolina district attorney says a jury in a rape case involving Duke University students “may or may not hear” about a previous rape claim by the alleged victim. […]

D.A. Mike Nifong says the state’s rape shield law includes “narrowly defined categories” under which the accuser’s past sexual history is allowed as evidence. He says the court has to determine if the evidence fits the criteria.

What are rape shield laws? Many people mistakenly believe that rape shield laws forbid the press from revealing the name of an alleged rape victim. That’s not true; in the U.S., the press is legally free to report rape victims’ names, but most press outlets choose not to.

The exact details vary from state to state, but in general rape shield laws forbid the defense from bringing up the alleged rape victim’s past sexual history in court. In other words, rape shield laws are supposed to prevent defense attorney from putting rape victims on trial for being a slut. But of course, defense attorneys try to find loopholes, and some judges are lenient in allowing loopholes to be used.

Here’s the portion of North Carolina’s rape shield law, which deals with exceptions to the rape shield law:

(a) As used in this rule, the term “sexual behavior” means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.

(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:

(1) Was between the complainant and the defendant; or

(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or

(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant’s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or

(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.

I don’t see anything in there that would help the defense attorneys get Mary Doe’s past rape complaint into the trial record. Exceptions one, two and three simply don’t apply. I suppose a defense lawyer could attempt to find a psychologist to make some sort of allegedly relevant diagnosis of Mary Doe’s mental condition, but that seems like a stretch.

There is another route that defense lawyers could use, however. If they can convince a judge that the 1996 charges were false, then they might be allowed to bring up the 1996 charges. (Much of the following information comes from George Washington University law professor and relentless self-publicizer John Banzhaf).

In State v Baron (1982), the Court of Appeals of North Carolina ruled:

Defense counsel sought only to introduce evidence of the prior allegedly false statements for impeachment purposes and advised the court of their intent. We believe that the Legislature intended to exclude the actual sexual history of the complainant, not prior accusations of the complainant.

So even though it’s not an exception specifically outlined in North Carolina’s rape shield law, evidence of past false allegations are admissable.

But here’s the rub: Is there any evidence at all that Mary Doe’s 1996 rape report was false? Not that I can see. Banzhof argues that Doe’s 1996 report may be admitted, but he doesn’t address the lack of evidence of a false report. And (in theory, at least) defense attorneys would have to be able to show that the 1996 report was a lie in order to bring it before a jury. In a later case, the Court of Appeals of North Carolina ruled:

Rather, the present case is more analogous to State v. Anthony where this Court affirmed the trial court’s exclusion of evidence of the victim’s previous accusations of sexual abuse against her father and stepfather. Although the charges were dismissed in that case, this Court reasoned that the dismissal of the charges did not show that the victim’s allegations were false. Just as there was no evidence of false allegations in Anthony, here, there is no evidence that the victim’s allegations were false. Therefore, the trial court did not err in excluding evidence of the victim’s prior allegation of sexual abuse.

Of course, it all depends on the judge – if a judge is a misogynist, then defense lawyers in a rape case can get virtually anything in. But at this point, it seems to me that Mary Doe’s 1996 rape report is probably inadmissible.