ROSEN: Equal sexes before the law

Published June 29, 2007 at midnight

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How the mighty have fallen. To the falsely accused Duke lacrosse players, Durham County District Attorney Mike Nifong once loomed as a powerful and terrifying figure, holding their future in his hands. Early in the affair, those innocent young men got an unhealthy dose of injustice. Now, the tables have been turned and it's Nifong on the receiving end of justice delayed but, fortunately, not ultimately denied.

Wisely and appropriately, the North Carolina State Bar disciplinary committee hearing his case sharply rebuked him and ordered his disbarment. The Duke administrators and faculty members who joined the lynch mob against the lacrosse players will probably avoid discipline but can't escape disgrace.

In broader terms, this scandal should stimulate a reappraisal of gender favoritism in our criminal justice system. The scales of justice are out of balance. At a time when feminist activists who exploit these kinds of issues demand equal treatment for women in combat, they also insist on preferences and deference for "the weaker sex" when women accuse men of crimes.

When police respond to a report of domestic violence in Denver, under the law an arrest must be made. Routinely, it's the man who spends the night in jail. When a woman accuses a man of rape, her name is withheld and his is made public. The rationalization is that without the protection of anonymity, some women might be ashamed to come forward. And the automatic presumption is that all such charges are true in spite of the reality that false charges of rape are often motivated by personal malice or attempts to cover up indiscreet sexual behavior.

As serious a crime as rape is, it's arguable that a man falsely convicted of rape suffers even greater life damage in the long run. Leveling the playing field and revealing the names of rape accusers would help to deter false accusations.

I was once asked how I'd feel if my daughter were raped. I'll answer that. I'd want to kill the SOB who did it. But the law has a duty to be more objective, circumspect and dispassionate. My daughter, of course, wouldn't lie about such a thing. But someone else's might. Every woman who falsely accuses a man of rape - and it happens - is someone's daughter.

But how about the other side of that coin? How would you feel if your son were falsely accused of rape? In the Duke case, before it became clear that the accuser - a stripper - was lying, a familiar argument was made that "even a prostitute can be the victim of rape." True enough. But, conversely, you could say that even a previously convicted rapist can be falsely accused of rape. These are interesting abstractions, but the law shouldn't prejudge or play favorites, and each case should be decided on its merits.

Rape often isn't as clear-cut as robbery or murder. Date rape is commonly an indecipherable matter of "he said, she said." During the highly politicized investigation of rape accusations at the Air Force Academy a few years ago, one female cadet testified that after a night of heavy drinking and repeated iterations of sexual intercourse at an off-campus love nest, her cadet boyfriend was guilty of raping her with one iteration too many. This would be difficult to prove even if they weren't both drunk. In the real world, life and male-female interaction isn't always as simple as "no means no." And then there's the even murkier swamp of "marital rape."

In this rare instance, it's a renegade prosecutor who's gone down in flames. And even though they've been exonerated, the Duke lacrosse players have been put through hell themselves. If any good can come from this, maybe it's time let the pendulum swing back to equity between men and women under the law.

Mike Rosen's radio show airs daily from 9 a.m. to noon on 850 KOA. He can be reached by e-mail at mikerosen@850koa.com.

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