Of all the strange, shoot-self-in-foot statements from Durham, N.C., District Attorney Mike Nifong in the last few days—and there are so many—one stands out. In explaining why he is continuing to prosecute three former Duke lacrosse players on kidnapping and sexual offense charges—despite dropping rape charges—Nifong told the New York Times, "If she says, yes, it's them, or one or two of them, I have an obligation to put that to a jury." Nifong is talking about the woman who says she was attacked in the bathroom after being hired to dance at a lacrosse-team party last March. In other words, the district attorney is claiming that as long as she continues to accuse any of the Duke guys, he must press charges against them. That's so basic a misunderstanding of his own job that it raises questions about whether he is even qualified to hold it.
Prosecutors don't have an obligation to take a professed victim's accusations to a jury. They have an obligation to listen to her story, test it against the other evidence, and then decide whether to move ahead. This is the root of prosecutorial discretion. Victims don't decide when to press charges in criminal cases. District attorneys do. And much of the time, that means a victim's accusation doesn't get anywhere near a courtroom. This makes prosecutorial discretion an alarming sort of power. Prosecutors do their most important work outside of public view and are free to make decisions that they never have to explain. That's one reason they're either elected or appointed by a governor or the president—we don't give this authority to officials who simply move up the bureaucratic ladder. More to the point, the discretion they exercise is necessary. Courts don't have the resources to sort through every allegation. And they shouldn't have to, given the damage criminal charges can inflict to the accused's reputation, even if they fall apart at trial or earlier.
Prosecutorial discretion looms particularly large in rape cases. According to a 1999 law-review article on the prosecution of sex crimes, "very few rape cases proceed to a jury trial." Prosecutors are less likely to bring charges in response to allegations of acquaintance rape than of stranger rape and less likely still when a professed victim doesn't resist. From a feminist point of view, this can all seem sinister—women come to prosecutors with stories of sexual assault and come away without justice. But it also reflects a healthy underlying premise: As a rule, prosecutors shouldn't bring cases they think they can't win.
Often, accusations of sex crimes come under that heading, for all the well-worn reasons. They're often about encounters that took place in private, and they often come down to he said/she said evidentiary headaches. If it's hard to see how the proof in a case can measure up to the standard a prosecutor needs to show—guilt beyond a reasonable doubt—then it's hard to see why that case should go forward.
Take all of that and raise it to the nth power in the Duke case. Nifong has no DNA evidence against the three former players, even though the lab that did the testing used the most sophisticated methods available. He's got cell-phone and other records showing that one of the men left the party before an assault could have occurred. And now, most importantly, he's got a victim who is changing her story. She's no longer sure she was raped, the woman says, because she's not sure that penetration occurred.
As an abstract legal matter, Nifong can justify his decision to deal with this new information by dialing back the charges from rape to assault and kidnapping. Penetration is an element of a rape charge—the prosecution has to specifically prove it to win. That's not true of kidnapping or of the other sex offenses Nifong is still charging.
But that analysis is entirely beside the point. The woman's new story too conveniently explains away the lack of DNA evidence—if there was no rape, then that's why none of the men's cells can be found in the rape kit. Even if that didn't seem suspect, shifting stories by their nature set off credibility warning bells. What kind of witness will this woman make? What's the jury going to think about her changing narratives, which the defense will do everything it can to get admitted at trial?
Those are the questions prosecutors are supposed to ask. Nifong, on the other hand, hasn't even directly questioned the woman about the alleged attack. There is so much else wrong with this case—Nifong's withholding of the DNA test results from defense lawyers for months, his statements on the stand that he didn't know about the results when it's now clear that he did, the all-lacrosse-player photo lineup that the victim looked at when she identified her three alleged assailants. These are all reasons for Nifong to do himself a favor, as well as the former Duke students, by tossing this case.
Instead, he says he can't because of the woman he calls "my victim." As long as she says she's sure that these men hurt her, Nifong is saying, he's prepared to believe her, and that means a jury may, too. So, it's up to her. But this sort of stubbornness is just as misguided, in its own away, as that of the prosecutor who refuses to investigate a rape charge because he can't take a woman's accusations seriously. "You can't make everybody back away from a fight," Nifong says. Well, actually, if you're the prosecutor, you can. In fact, it's your job.
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