Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

Given the lack of truthful reporting on yesterday's Duke developments, I'm 
sending you my view.

To being with, only one of three charges was dropped.  Two remain.  One sex 
offense and one kidnapping.  All are felonies.

The charge that was dismissed related to vaginal rape.  The remaining charge 
is also a rape allegation -- but in North Carolina, only vaginal rape is 
called "rape" - any other form of penetration is called "sexual offense" and 
this victim reported anal and oral penetration as wellas vaginal rape.

Rape and "sexual offense" are equally serious crimes -- B1 felonies -- and 
they carry the same punishment  - which means giving up the vaginal rape 
charge really doesn't affect the likely punishment  -- 

Most pundits claimed the vaginal rape charge was dismissed because the case 
is falling apart.  But I suspect it's a strategic move by the prosecution - 
and a brilliant one at that.  It's no accident that the dismissal of this 
charge follows immediately on the heels of the judge's ruling last week that 
the defense could have access to the DNA and idnetifying information about 
the other men whose DNA was identified in the rape kit test.

The DA had tried to keep this information private -- and in my opinion, he 
did exactly the right thing NOT revealing irrelevant constitutionally 
protected private information to anyone unless and until a judge determined 
that disclosure was necessary.  This was decided last week and if it were my 
case, I would dismiss the vaginal rape charge, too -- as a way of cutting off 
any attempt by the defense to make the trial a sideshow about the victim's 
sexual past.

The prosecutor said he was dismissing that charge because the victim wasn't 
certain that there was vaginal/penile penetration -- and it may well be that 
she was unsure what was used -- (suggestions are out there that it was an 
object/broom handle) and there was no corroboration for the use of a penis -- 

if there had been vaginal penetration with an object -- that is not rape 
under NC law - it is considered "sexual offense" -- as with other forms of 
nonvaginal  penetration -- 

It's fine for the defense to spin this development to their advantage -- but 
the fact is -- if the case was falling apart or going away, there'd be no 
reason to dismiss only one charge - 

remember the kobe bryant case -- as soon as the defense revealed that the 
victim had sex with three men in three days -- that's all anyone talked about 
(even though it was false) 

this decision by the prosecutor prevents the exploitation of the DNA evidence 
in the real court and in the court of public opinion -- 

in a strange way - this victim is lucky that she suffered additional forms of 
sexual assault 

most victims have no strategic way out of having their private sex lives 
exploited - and the irony is -- this is a direct result of the use of DNA and 
our overreliance on it as the gateway to truth in criminal cases 

DNA in rape cases is far more likely to be a source of distortion - not 
elucidation -- 

and the worst thing is the fact that SANE and SART programs - thanks to the 
Debbie Smith Act -- are taking DNA samples in EVERY rape case, irrespective 
of relevancy -- even though in over 90% of cases, DNA is either irrelevant or 
useless (because the perpetrator admits the incident occurred) -- 

This means we are wasting tax dollars 90% of the time taking DNA evidence 
from every rape victim and sending it off for testing -- this is about 40 
dollars just for the kit and multi hundreds of dollars for the test -- 

A couple of years ago there was a lot of media attention to the claim that 
500 thousand rape kits sat in storage someplace because of a lack of federal 
funding and that the Debbie Smith Act would solve the problem - 

The truth is -- the 500K kits sat in storage because they contained 
irrelevant information - 

If waste of tax dollars were the only problem, I wouldn't mind -- but the 
fact is, we're also causing gratuitous harm to 90% of victims -- invading 
their privacy and giving the defense an unfair arrow in their quivver -- 

Of course, you don't always know at the time a rape kit is being conducted 
whether DNA is necessary -- so it is reasonable to gather evidence -- my beef 
is with the automatic testing.  This should stop.  There should be no testing 
until a judge allows it after a hearing.  In 90% of cases, this will not 
happen.  (and it won't hurt the effort of law enforcement to gather DNA of 
perpetrators because that can happen by a court-ordered blood test -- or if 
the perp is an "unknown", the DNA can and should be sent to the database.  
I'm talking about known perps - which again -- is over 90% of cases.

What we need is widescale reform to SART and SANE policies that allows for 
mini-kits to be used such that DNA is removed from the victim's body -- but 
NOT tested.  If the presumption is that most cases will not require testing, 
the full kits are a needless expense - 

The mini-kit can be held until a judge decides that it should be tested.  And 
this can be done quickly -- soon after the arraignment -- so there will be no 
delays in the case.  If a judge determines that testing is not necessary -- 
the mini-kit should be destroyed.

As it stands now -- the presumption is that DNA is helpful and important -- 
thus, all testing is done automatically.  There is an argument that this is 
efficient -- but at what cost is my question.  Rape shield laws were designed 
to prevent some of these problems, but they don't work and in my opinion, 
should be repealed.

The development of DNA technology has created an entirely new rape-shield 
problem that cries out not for statutory band-aids but intelligent solutions 
based in constitutional arguments.   Defendants have successfully forced the 
development of laws that prevent the state from taking their DNA without at 
least probable cause.  They did this by citing the constittuional right to 
privacy and due process/fourth amendment, etc.  But while the defense side 
has been using the constitutiona to restrain the use of DNA technology to 
interfere with their rights, nobody -- NOBODY is fighting for the same rights 
on behalf of victims and it seems to me, the people who have caused NO harm 
should be entitled to better privacy protection -- not less -- than accused 
criminals.  

Happy Holidays everyone --

Wendy