Prosecuting Rape Without Conclusive DNA Evidence

A prosecutor investigating the alleged rape of an exotic dancer at a Duke University lacrosse team party says the lack of conclusive DNA evidence will not stop the case from going forward. Madeleine Brand speaks with Loyola Marymount law professor Laurie Levenson about the challenges of prosecuting sexual assault cases without genetic evidence.

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ALEX CHADWICK, host:

This is DAY TO DAY, I'm Alex Chadwick.

MADELEINE BRAND, host:

And I'm Madeleine Brand. How do you prosecute a rape case when there is no DNA evidence? That's the task ahead for the DA in Durham, North Carolina. He's pursuing charges against members of the Duke University lacrosse team. A woman says she was raped at a lacrosse team party, but there is no DNA linking the suspects. Laurie Levenson is a former federal prosecutor. She now teaches at Loyola Law School here in Los Angeles. Welcome to the program.

Professor LAURIE LEVENSON (Professor, Loyola Law School): Thank you so much.

BRAND: Now, the DA says he's going to work this case the old fashioned way. How many rape cases are indeed worked these days the old fashioned way without DNA evidence?

Prof. LEVENSON: Well, it depends on the jurisdiction. There are some jurisdictions who don't have the resources to do DNA in all these cases. But most, at least big cities these days, do try to use the physical evidence because that's what the jurors expect. Post CSI, they want DNA.

BRAND: And it is possible to successfully prosecute a rape case without DNA evidence?

Prof. LEVENSON: It's possible, in fact it was done all the time. But that was pre-DNA era. You know, it's possible to have a rape where no DNA is left. For example, if the suspect wears a condom, if the suspect uses an instrument. If it just happens that the DNA is not deposited there, could not be tested, or is contaminated, there are lots of explanations. On the other hand, don't forget the defense only has to raise a reasonable doubt, and in this era, where people and the jurors expect DNA, it's easier to do if the prosecutors don't have the DNA.

BRAND: Do you think that the DA has sort of painted himself into a corner where he now has to proceed with this case whether or not he believes he'll succeed?

Prof. LEVENSON: Well, he certainly has to either proceed or have a really explanation as to why he's not proceeding, because he's come out and said I don't care that there's no DNA, we can go forward. And it makes you think that he has other types of evidence that he feels fairly confident about. You know, that can be statements by the suspects themselves, or other witnesses. It can be the types of injuries, but nonetheless, he's taking on a very tough case.

BRAND: I wonder if you could compare this case to another high profile rape case involving an athlete, involving race, and that's the Kobe Bryant case.

Prof. LEVENSON: Yeah, there are a lot of comparisons here, except for here the victim is black and the suspects, at least many of them--or the one's that they've tested, are white. And the Kobe case was a little different because he admitted that he had sex with the woman. These boys are saying they didn't have sex with her, that's what their lawyers are saying, so you have that element as well.

BRAND: Laurie, you said earlier that rape cases are more difficult to prosecute than you think. Can you flesh that out? Why is that?

Prof. LEVENSON: Oh, they're very difficult to prosecute, because frankly, even though we think that we've advanced to a time of equality, you know, jurors are still very suspicious of the victim. Especially when you have a victim like this, who comes from her background, pointing the finger at these college athletes, and the ideas that they are the heroes of their university. So when you go to trial, a lot of people are suspicious of the victim. It's hard to give her the credibility she needs for the prosecution to win the case.

BRAND: And do they eventually get down to the he said/she said?

Prof. LEVENSON: It's often he said/she said, but in this case, it's she said/they said, and that makes it particularly difficult.

BRAND: Laurie Levenson is Professor at the Loyola Law School here in Los Angeles. Also, she's Director of the Center for Ethical Advocacy. Thank you for joining us.

Prof. LEVENSON: My pleasure.

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