Michael Gaynor
April 21, 2006


My position on the so-called Duke rape case is simple:

"What is needed in the Duke lacrosse team alleged rape case and every other case in which an accusation of criminal conduct is made is impartial and intense investigation, not incitation.

"If there was rape, let any rapist be convicted.

"If the dancer is trying to perpetrate a hoax, let her be convicted.

"Until the facts are established, let's call the dancer the accuser, NOT the victim."

Today, it appears that the right term for the "exotic dancer" (probably should be erotic dancer) may be a jail term and the right term for a least one of the two Duke lacrosse players indicted should be victim of false criminal accusation.

BUT, perhaps the "exotic dancer" was raped, but accused the wrong man. The whole truth is still unclear, and should be pursued without fear. The authorities need to investigate very carefully instead of to proceed with the indictment as though it is well founded and be open to the possibility that they were duped as well as the possibility that a honest mistaken identification was made.

One admittedly frustrated emailer argues that the dancer is not an accuser but a witness and indictment "officially" transformed her into a victim:

"This confusion in the media frustrates me, so I'm sending you an email to allay my frustration. The 'accuser' in a criminal case is the state, not an individual witness. There has been a probable cause hearing in the Duke case and the grand jury has determined that there is enough to charge these two men, now 'defendants.' The woman is now officially a 'victim." The hoopla in the Bryant case about how unfair it is to call a victim a victim was an expensive defense media campaign with very little legal support.

"Prosecutors can't speak to the media as freely as the defense can pretrial so the state's evidence is not public in [its] entirety yet. The purpose for this is to keep the case from being tried in the media and to protect innocent defendants. Let's not turn that protection on [its] head and indict victims based only on defense information. Until we know what the state's evidence is, let's not allow the defense counsel to make up our minds."

The emailer is right about the state being the "accuser" in a criminal case. But the state has initiated criminal proceedings against a couple of Duke lacrosse players because the dancer accused them of raping her and the prosecutor who is running for reelection soon) rushed to judgment and secured a couple of indictments.

An indictment is a formal written statement framed by a prosecuting authority and found by a grand jury charging a person with an offense. It is a charge, or an accusation, not proof that a crime has been committed by anyone, much less the person(s) indicted. It does not officially confer victim status on a person who accused the person indicted of a crime. It is the result of a one-sided presentation by the prosecuting authority. It is has been observed, wryly and wisely, that obtaining an indictment is so easy that a ham sandwich could be indicted.

A more discerning email who focused on the facts of the particular case as well as rape cases generally and thinks that the word "accuser" carries a negative connotation (I don't agree about that, but do agree that what is needed is a neutral term) urged that, in general, the accuser in the first instance (that is, the person who claims to the police and the prosecutor that he or she has been the victim of a crime or crimes) be called an alleged victim instead of a victim, but agreed that the dancer in the Duke case could fairly be called an accuser

"I am not a big fan of calling alleged rape victim's 'accusers' since I believe it has a negative connotation and once the police arrest someone, at least the state has concluded the 'accuser' is a 'victim.'

"Alleged victim seems the fairest way to refer to the vast majority of women who say they were raped, it doesn't paint them in a negative light, doesn't assume they are or may be lying, and also doesn't call them a 'victim' prior to any court proceeding. It is also true that many legitimate victims of rape do not win their court cases due to the high standard of proof and the general lack of objective evidence in rape trials.

"However, in this particular case, the evidence we have seen appears to point overwhelmingly to this being a false accusation. At present, every piece of evidence and every statement appears to contradict what the woman says happened.

"So have at it, call her an accuser, call her a potential liar, a stripper...

"But the next time around, keep in mind that most rape accusations are not blatantly false, as this one appears to be and most women who do claim rape have been wronged or hurt and are deserving of respect and sympathy.

"In this case, I agree, we have Tawana II, but this woman has no excuse at all, at least Tawana was a teenager, this is an adult female with two children. There is no conceivable excuse for making up this terrible story of a violent gang rape."

May the whole truth be revealed, so that justice can be done.