Creative Destruction

April 29, 2006

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

Filed under: Current Events,Feminist Issues — Ampersand @ 1:44 pm

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.



  1. I agree; this report doesn’t shed any light on the current case.

    Comment by Robert — April 29, 2006 @ 1:52 pm | Reply

  2. Does a prior accusation of rape count as sexual behavior?

    Anyway, I’m generally opposed to laws which restrict the information available to juries, and to giving judges or legislators the power to decide what is and is not relevant. In the wrong hands (a place power finds itself with alarming frequency), this leads to abominations like Peter McWilliams being forbidden to mention that he was using marijuana for medicinal purposes and that this was explicitly allowed under California law.

    If juries can’t be trusted to decide for themselves, based on arguments from the prosecution and defense, which evidence is relevant and which evidence is not, then the jury system is irredeemably flawed. Probably democracy, too.

    Comment by Brandon Berg — April 29, 2006 @ 11:41 pm | Reply

  3. If there were past accusations of rape against the two indicted players, it would likely be considered a ‘pattern’, regardless of whether the players were ever arrested or if the case ever went to trial. It would certainly carry some gravity if the previous accusations were strikingly similar to the current ones. Few people would dismiss it as pure coincidence. People who lie are just as likely to form patterns as people who rape. The notion that no woman would ever lie about rape is patently false. The notion that no woman would do it twice and for the sake of gaining attention is laughable. There are even women who are rapists who lie about being raped, so it is entirely possible that the Duke accuser is not telling the truth and may be repeating the same lie that worked previously.

    The accusation actually does not have to be proven false because she refused to cooperate. Assuming the accuser continues forward, the defense could easily get it included as it goes to her character. Because rape is not part of the “sexual behavior” of the accuser, the rape shield law might not actually protect it, nor should it. The implication from the previous accusation is clear, and that is all the defense attorneys have to present in front of the jury. They do not have to question the accuser about her reasons for not continuing forward or why she waited so long to report it and apparently did not tell the Duke DA about those accusations. That is the jury’s job, and any reasonable person would see the similarities and question why, if the accusations were true, the accuser a) refused to cooperate with the previous case, and b) appears to have been “raped” in the exact same manner twice.

    One does not have to be a misogynist to allow the defendants a fair trial nor does one have to be a misogynist to question the credibility of the accuser. One merely has to follow the law and understand it is the prosecution’s burden to prove the assault happened beyond a reasonable doubt. This past accusation would raise a great deal of reasonable doubt in fairminded individuals.

    Comment by Toy Soldier — April 30, 2006 @ 1:16 pm | Reply

  4. The notion that no woman would do it twice and for the sake of gaining attention is laughable.

    The notion that women can only be actually raped once in their lives is even more laughable.

    If the prior accusation had been false, certainly that would be relevant. The fact that a previous report of rape existed doesn’t make it ‘relevant’. It only raises a ‘great deal of reasonable doubt’ in those desperate to assume that the accuser has to be a liar.

    Comment by mythago — April 30, 2006 @ 1:54 pm | Reply

  5. If the prior accusation had been false, certainly that would be relevant. The fact that a previous report of rape existed doesn’t make it ‘relevant’. It only raises a ‘great deal of reasonable doubt’ in those desperate to assume that the accuser has to be a liar.

    The fact that the previous accusation is strikingly similar to the current one makes it relevant. It is certainly possible for a woman to be raped more than once in her life, but it is highly unlikely that a woman would be raped in the exact same manner by two random sets of people ten years apart. Fairminded individuals would find the very apparent similarities in both cases questionable, a reason to be doubtful of their validity. Those desperate to assume every rich, white male is rapist and racist would not.

    In this instance, the defendants are legally entitled to be assumed innocent until proven guilty. No one actually has to call the accuser a liar. All that is required is to raise reasonable doubt that the acts occurred. To exclude any evidence along those lines, or to deem it ‘misogynistic’ because it raises such doubt, defeats the purpose of even having a trial.

    Comment by Toy Soldier — May 1, 2006 @ 4:54 pm | Reply

  6. She got gang raped twice thirteen years apart, and both times there was absolutely nothing in common, except that there were three rapists. What “strikingly similar” gang-rapes!

    Have you been raped before? Did you report it to police? Is there even one element, out of dozens of possible elements, which the two rapes have in common? If so, then by Toy Soldier’s standards, the more recent rapist must get “reasonable doubt” and can’t be convicted!

    If you can prove a pattern of false accusations, then I absolutely think that should be admissible in court. But “she says she’s been raped before, and that makes it reasonable to assume that she’s lying this time” – which is all your current case boils down to – is nonsense.

    Which is why the courts have been quite correct in not allowing such testimony in past cases in North Carolina; and I hope they continue that pattern in this case.

    Comment by Ampersand — May 1, 2006 @ 7:00 pm | Reply

  7. If you can prove a pattern of false accusations, then I absolutely think that should be admissible in court.

    I think you set the bar too high. Even a single demonstrably-false rape allegation should be sufficient impeachment of the complainant’s credibility to be admissible. It should not be necessary to show a ‘pattern’.

    Also I don’t think ‘proof’ to a criminal standard should be the standard here, rather, that the defence can show that the allegation is likely to have been false.

    But I agree that the bare fact of a past rape allegation is not evidence of falsity

    Comment by Daran — May 1, 2006 @ 8:13 pm | Reply

  8. Daran, you ignorant slut! How dare you say blah blah blah angry explicative combined with sarcastic derision!

    No, wait, you’re right. The word “pattern” was ill-chosen on my part; I didn’t mean to imply that a single demonstrated false rape allegation shouldn’t be admissible. And I don’t think a prior conviction for false rape reporting should be necessary, but I do think real evidence – not just “how could the same person possibly be gang-raped twice in a lifetime?” – should be required.

    So I think we actually agree about this.

    Comment by Ampersand — May 1, 2006 @ 10:11 pm | Reply

  9. In this instance, the defendants are legally entitled to be assumed innocent until proven guilty.

    “Presumed” innocent, and nobody has argued otherwise. Everyone accused of a crime is entitled to that presumption. That would, by the way, include someone accused of committing perjury and making a false police report.

    A ‘fair-minded’ individual would not contort himself into knots trying to pretend that the woman reported being raped ‘in the exact same manner’ twice. You’re really inventing facts here, and I’m not sure why you throw charges of class resentment and sexism at anyone who doesn’t eagerly assume the accuser must have lied twice.

    Comment by mythago — May 2, 2006 @ 1:31 am | Reply

  10. I totally disagree! They should have it on trial! In my experiance, I been gang raped and raped a few other times when I was younger. Car accidents happend as much as ppl getting shot by drive bys. I been in multiple car accidents from street racing! Yall are close minded! Its possible that she isn’t lying! I have reported mine twice but cops don’t do shxt about it. So I gave up and handle it with my own bare hands with the help of my homies. Its never impossible to be raped more than once in a short time! Look at them kids in elementry school who been raped a few times by their own teacher… don’t say its false when you don’t know or haven’t expireanced it! It pisses me off when ppl like u say such things. That girl needs support! Not no critizim! Even if she was dressed up slutty, she doesn’t deserve to be raped! Fxcktards! Stop being jugdmental bcuz it might happen to u or ur own children!

    Comment by Sommer — July 1, 2009 @ 5:34 am | Reply

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

Blog at

%d bloggers like this: