TOUGH LESSONS FROM THE DUKE RAPE CASE

by Earl Ofari Hutchinson

(PNS) DURHAM -- District Attorney Mike Nifong should do the right thing, cut his losses and drop the remaining charges of kidnapping and sexual assault against the three Duke University lacrosse players. That would close what has to be one of the depressing episodes in the history of rape and racial victimization cases.

But Nifong has given no hint that he has learned any lesson from the fiasco. Whether it's ego, to save face, or being just plain bull headed, he's determined to barge ahead and embarrass himself further with a prosecution. But there are compelling lessons that can be learned from the aborted rape case even if Nifong hasn't learned them.

One is the danger of shouting "race" in a rape case. Women's groups have waged a relentless and oftentimes frustrating fight to get police, prosecutors, the courts and the media to treat rape as a serious crime, especially when the victims are poor, black or minority women and the alleged attackers are white males. But a suspect cry of rape in an impassioned racially charged case does great harm to that fight. It leaves all rape victims regardless of color or income wide open to the charge that they will falsely shout "rape" to cover up their own lack of judgment.

That could make police more hesitant to make arrests and prosecutors even more gun shy about vigorously prosecuting rape cases. It also makes black leaders, who are mostly male, more reluctant to vigorously denounce victims of genuine sexual crimes. That puts women, particularly black women, at greater risk from sexual attack, which is a tragedy because it's a deadly fact of life for countless numbers of women.

The next lesson is that in a racially charged and politically tainted rape cases the battle lines will quickly form. That happened almost the instant the charges were filed in the Duke case. Black and women's groups squared off against a legion of coaches, sports jocks for public attention. One side screamed that it was a case of elite, privileged white males victimizing a black woman, while the other side screamed that the athletes were victimized by the legal system because they were white and athletes.

The scream that the case was a bogus racial hit by an overly ambitious district attorney, or that the case proved how badly black women are victimized grew louder at each new revelation in the tortured case. The confusing and contradictory statements from the alleged victim about the attack, the failure of DNA tests to match the alleged assailants to her, the infamous public recant by the principal witness on 60 Minutes, and the disclosure that the alleged victim had sexual contact with others immediately prior to the alleged assault, stoked public fury.

The three players indicted and their attorney quickly pounced on each new revelation and loudly shouted that these proved their innocence and demanded that the charges be dropped. They also protested that the case had irreparably damaged the good names and reputations of the athletes. They were right and that engendered even more public sympathy.

There was also a lesson for black leaders. To their credit, Al Sharpton and Jesse Jackson didn't stampede to the barricades and demand conviction and severe punishment for the accused assailants, as they have in the past in other hot ticket racially tinged cases. Who can forget 15-year-old Tawana Brawley? She accused six white men of raping her but there were no indictments for lack of evidence. Sharpton instantly screamed racism. Every time he did, he hopelessly muddled the case, and inflamed racial tensions. Eventually, he was successfully sued by one of the accused.

In the Duke case, a reflexive shout of racism would have further discredited the legitimate fight against sexual victimization. Because of that, black leaders should have gone one step further and urged the Duke protestors to cool their rhetoric until all the facts were in. They didn't. Black leaders' great fear is that if they rebuke blacks that abuse the issue of race to grab headlines that would be tantamount to race treason.

Then there's Nifong. He was roundly denounced for rushing to judgment on the case to curry favor with blacks and women's groups, and to boost his re-election chances. There's no evidence that Nifong purposely used the case to do that. But thereÔs no doubt that from the start politics and race badly clouded the case. Whether it's O.J. Simpson, Michael Jackson, or any other high profile racially charged case, prosecutors are sorely tempted to pander to public passions and engage in media posturing. That's a fatal mistake. The evidence should be the only thing that prosecutors pay attention to. When they don't, they risk a humiliating loss. In turn that fuels public cynicism that justice is for sale, and that the system is hopelessly flawed.

The Duke case bruised lives, gave the justice system a momentary black eye, stirred racial divisions on one of America's elite campuses and riled the public. The final lesson is that when politics, race and passions collide in a questionable case, caution and good sense go out the window. The Duke case proved that.