Dahlia Lithwick on the Duke Case (Slate: Jurisprudence)

Here we go again.

The Duke lacrosse team's rape scandal cuts too deeply into this country's most tender places: race and class and gender. It reaffirms everyone's deep-seated, unspoken fear that black women/white men/poor people/privileged people/victims/ defendants can't get a fair shake under our legal system. This case will be chewed over, regurgitated, and chewed over again by television pundits unafraid of venturing opinions in no way informed or changed by the rapidly changing public facts.

It's easy to have doubts about the ability of the courts to resolve cases like this one when you stop to consider that long after the court proceedings, hearings, and investigations ended, we still have no idea what really happened between Kobe Bryant and his accuser, between Michael Jackson and his accuser, between Clarence Thomas and Anita Hill. If these legal processes are intended to be searches for the truth, why is there never any truth at the conclusion?

Part of the answer is that some truths are unknowable. Subtle distinctions between consensual sex and date rape, between coercion and force, between silences that sound like "yes" and silences that sound like "stop," are difficult for the parties themselves to work out. How can a juror really divine what went on in the mind of another person?

But that's where the Duke case truly differs from the Kobe Bryant case. This is not a case about consent. Either a forcible rape, kidnapping, and strangulation happened in that bathroom in Durham or it didn't. This wasn't a date gone wrong. At the margins, this case may be about sex and race and power. But it's not about subtle social messages or identity-based misunderstandings. It's about an assault.

Also, there is evidence here: Mounds and mounds of significant physical evidence. There is a rape kit. There are bruises, and then, apparently, more bruises. There are DNA tests and broken fingernails and witnesses seemingly tumbling out of the woodwork. There are time-stamped photographic accounts of much of the evening. This is not a classic "he says/she says." The evidence has something to say to us as well.

Perhaps we should be thankful that this is not a case about ESP as much as it's case about CSI.

One might hope that all this evidence, and the unambiguous legal charges, would lead to reasonable legal inferences and unequivocal legal conclusions. But that is where we'd be dead wrong. Because the so-called objective "evidence" currently being meticulously weighed and evaluated by the media is no more "objective" or "conclusive" than the rank speculation by the pundits. Everything we are hearing about the DNA tests and the photos is selective, secondhand, and anecdotal. We are being played by the lawyers, with leaks and well-chosen sound bites.

The same thing happened after the Kobe Bryant accusations surfaced. People made instant judgments—based on their own experiences, or what they read in the paper, and what they knew to be true in their bones. People thousands of miles from that resort in Colorado knew for certain that Bryant's accuser was a liar and a tramp. Women who had never even heard of Kobe Bryant knew absolutely that he was a rapist.

And that's what's happening in the Duke case. We already feel we know, with great certainty, who's lying and who isn't. The headmaster of one of the accused students' old high school puts out a statement saying: "Knowing Reade Seligmann as well as we do here at Delbarton ... I believe him innocent of the charges included in the indictment." A Duke English professor has called for the university to expel the whole lacrosse team to stop the "drunken white male privilege loosed amongst us."

Rush Limbaugh, knowing nothing about these people, comfortably dismisses the alleged victim as a "ho." (I gather he apologized. Huzzah.) Jesse Jackson, knowing nothing about this nameless accuser, is comfortable saying this is an archetypal racial conflict:

Black women; white men. A stripper; and a team blowout. The wealthy white athletes—many from prep schools—of Duke; and the working class woman from historically black North Carolina Central. Race and class and sex. What happened? We don't know for sure because the Duke players are maintaining a code of silence. The history of white men and black women—the special fantasies and realities of exploitation—goes back to the nation's beginning and the arrival of slaves from Africa.

And Tucker Carlson doesn't hesitate to impugn the truthfulness of anyone employed as a "crypto-hooker."

Such comments—about total strangers, involving facts that are still largely unknown—tell us absolutely nothing. Or, if they tell us anything at all, it's about what happens in the creepy closet under the stairs of Limbaugh's, Jackson's, and Carlson's brains.

As was the case with O.J. Simpson, Bryant, and Jackson, this is very quickly becoming an ink-blot test, not a legal proceeding: We look to the facts to confirm our own pre-existing suspicions about what inevitably happens between men and women, rich people and poor people, black people and white people.

And what about all this "physical evidence?" That unambiguous, objective scientific evidence? Supporters of the Duke students say the lack of a DNA match exonerates them. Peter Neufeld of the Innocence Project says, "There's an old saying that the absence of evidence is not necessarily evidence of absence." Nurses say the injuries are consistent with rape. The boys say someone else raped her. Time-stamped photos suggest the alleged victim was already injured before she arrived at the party. Other time-stamped photos suggest new injuries occurred while she was there. Lost fake fingernails in the bathroom suggest a fight. The lack of any DNA material under those nails suggest she never fought back. Photos say she was intoxicated upon arrival. The second stripper implies she was drugged at the party.

Pick your fact, any fact. Each of them can, it seems, be spun both ways. This scandal has become yet another exercise in fiction-writing as opposed to truth-seeking; we can use the same evidence to confirm what we already know in our bones to be true.

This case serves as yet another depressing reminder of all that is wrong with this country: Our sons are spoiled misogynistic bigots, and our colleges are hotbeds of polarizing identity politics. Race and gender and poverty still tear us apart. But this case may also serve as a sober reminder that courts are not laboratories and jurors are not scientists. Facts are, more often than not, just our own subjective opinions, dressed up to look like incontrovertible truths. There are, in the end, objective truths to be found here. But the jurors must work hard to look past their prejudices, and the lawyers' spin, to find them.