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James Boyd
IU Maurer School of Law

Last modified: Monday, January 26, 2009

IU law professor explores "Presuming Guilt or Protecting Victims?" in new book on Duke lacrosse case

Jan. 26, 2009

BLOOMINGTON, Ind. -- Nearly three years after several members of the Duke lacrosse team were falsely accused of raping an exotic dancer, a new book examines the legal implications of where the case went wrong; it also looks at how future sexual assault cases can be pursued without jeopardizing the rights of both the victims and the accused.

Aviva Orenstein

Aviva Orenstein

Race to Injustice: Lessons Learned from the Duke Lacrosse Case (Carolina Academic Press, 2009) looks at how various factors -- including an overzealous prosecutor, social stereotypes, and a society quick to condemn the accused -- led to one of the more troubling legal issues in recent memory.

The players accused of rape and other offenses eventually had all charges against them dropped. Mike Nifong, the Durham County prosecutor who pursued the charges, was disbarred after making inflammatory comments and ignoring evidence that exonerated the defendants.

Indiana University Maurer School of Law -- Bloomington Professor Aviva Orenstein authored the book's final chapter, "Presuming Guilt or Protecting Victims?: Analyzing the Special Treatment of Those Accused of Rape."

Orenstein cautions against drawing the wrong lessons from the Duke case and "dismissing valuable protections for victims because of egregious prosecutorial misconduct in one case."

She said the Duke case provides an important illustration of how protecting the rights of a sexual assault victim must be weighed carefully against protecting those of the accused.

"In the chapter, I probe the various stories told in the Duke case and the power of such narratives. I advocate for a delicate, nuanced balance between the needs of victims and the rights of the accused," Orenstein said. Her chapter argues in favor of rape shield laws, privacy for rape victims, as well as permitting certain expert testimony about rape trauma. "It questions, however, the fairness of character evidence about the accused's sexual past and various harsh post-release restrictions," Orenstein commented.

In all other criminal cases, for example, a defendant's prior criminal history is inadmissible in court if offered to prove the person's criminal tendencies.

"For example, if you're prosecuting a burglar for burglary, you can't bring in evidence that he's done it five times before," said the book's editor, Michael L. Seigel, a professor at the University of Florida Levin College of Law. "In cases of sex offenses, it's the opposite. Aviva looked at a bunch of different rules. She looked at the Duke case and essentially asked, 'Has the pendulum swung too far? Have we gone overboard in jeopardizing the rights of the criminal defendant?'"

Take, for example, how the media treats those accused of rape. Orenstein notes that the accused are typically named in both the media and in court documents, while the legal system tries -- often unsuccessfully -- to allow the victim to remain anonymous. In the Duke case, the players accused of rape were identified quickly after the alleged incident, yet the name of the accuser didn't emerge until after it was discovered that her story was false.

"This is an important topic," Seigel said. "What happens to a defendant accused of rape? How would these players have been treated had there been a trial? The purpose of this study is to teach us to avoid making this mistake again."