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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 20, 2006
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Topic category:  Other/General

False Rape Claims, Polygraphing and the Duke Case

I wish to draw attention to each of the Duke Three having passed a polygraph test and their accuser (Crystal Gail Mangum) not having been polygraphed.

The fictional Sherlock Holmes deduced that a dog owner was the criminal, because his dog had not barked and he was the only person who could have committed the crime without arousing his dog. 

"Inspector Gregory: 'Is there any other point to which you would wish to draw my attention?'

"Holmes: 'To the curious incident of the dog in the night-time.'

"'The dog did nothing in the night time.'

"'That was the curious incident,' remarked Sherlock Holmes."

From "The Adventure of Silver Blaze" by Arthur Conan Doyle

I wish to draw attention to each of the Duke Three having passed a polygraph test and their accuser (Crystal Gail Mangum) not having been polygraphed.

I find it "curious" that Durham County, North Carolina District Attorney Michael B. Nifong not only refused an offer to be polygraph tested made by the three co-captains of the 2006 Duke Men's Lacrosse Team, but apparently did not even ask Mr. Mangum to take a polygraph test (I doubt she volunteered).

From USA Today: "The FBI will give lie-detector tests to hundreds of state and local police officers assigned to terrorism task forces across the country as part of a new effort to battle espionage and unauthorized information leaks."

FBI Assistant Director Charles Phalen: "There is no more powerful tool in our tool bag" than polygraph tests.

Mr. Nifong has complained of a "wall of silence," but when team members volunteered to be polygraphed, it was Mr. Nifong who did the rebuffing. 

Why?

Could it be that Mr. Nifong feared that Ms. Mangum, the accuser and an ex convict, would not pass, he thought he needed to be pursuing some white lacrosse players in order to win the Democrat primary last May and the case he planned to use to snatch electoral victory from the jaws of defeat would have collapsed much too soon?

Is it too much to expect that a person accusing another of kidnapping, rape and sexual assault pass a polygraph test BEFORE a prosecutor obtains an indictment?

Is it too much to expect that indictments that were hastily obtained and unwarranted under all the circumstances be dismissed UNLESS the person accusing others of kidnapping, rape and sexual assault is given and passes a polygraph test?

Especially if the accuser has a criminal record.

In 1991, when the rich white fellow accused of rape was William Kennedy Smith, his accuser (a young white woman from a wealthy family) was given TWO polygraph tests by the prosecution (not to mention a voice stress test) before Mr. Smith was prosecuted.

Should a black accuser NOT be polygraphed when she charges rape?

Should the path to prosecuting a Kennedy be more arduous that the path to prosecuting the Duke Three...or anyone else?

Susan Estrich is a rape victim disposed to believe a rape claim, even the gang rape claim in the Duke case.  Yes, Ms. Estrich seems to have "gotten it," finally, at least with respect to the Duke case.  But Ms. Estrich earlier explained her predisposition as follows: ""Do women lie about rape? Occasionally, but no study has ever found that women lie about rape any more often than men lie about other crimes. Why would they, given the stigma that is still attached to victims, and the humiliation involved in pursuing a complaint?"

Dr. Eugene J. Kanin of the Department of Sociology and Anthropology at Purdue University is the author of "An alarming national trend: False Rape Allegations" (Archives of Sexual Behavior, Vol. 23, No. 1, 1994, pages 81-90).

The abstract for this article states: "With the cooperation of the police agency of a small metropolitan community, 45 consecutive, disposed, false rape allegations covering a 9 year period were studied. False rape allegations constitute 41% of the total forcible rape cases (109) reported during this period. These false allegations appear to serve three major functions for the complainants: providing an alibi, seeking revenge, and obtaining sympathy and attention. False rape allegations are not the consequence of a gender-linked aberration, as frequently claimed, but reflect impulsive and desperate efforts to cope with personal and social stress situations."

Some feminists apparently think any rape claim must be true, but that thought defies reality.

In the Duke case, Ms. Mangum was transported to the Durham Access Center by police officers who believed that she met the criteria for involuntary commitment.  That strikes me as a stressful situation for Ms. Mangum.  Ms. Mangum did not allege physical or sexual assault at the lacrosse team party until involuntary commitment loomed. 

Surely it should have occurred to the police and the prosecution that Ms. Mangum's gang rape claim (of which there were multiple, significantly difference versions) was an "impulsive and desperate" attempt to cope with a personally stressful situation.

Dr. Kamin recognized that legitimate rape cases were discounted before pressure from women's groups caused them to be taken seriously but concluded that now false rape claims are treated as legitimate. Dr. Kamin:

"Currently, the two main identifiable adversaries involved in the false rape allegations controversy are the feminists and the police. The feminists are by far the most expressive and prominent on this issue. Some feminists take the position that the declaration of rape as false or unfounded largely means that the police do not believe the complainant; that is, the rape charges are real reflections of criminal assault, but the agents of the criminal justice system do not believe them (Brownmiller, 1975; Russell, 1984). Some feminists virtually deny the existence of false rape accusations and believe the concept itself constitutes discriminatory harassment toward women (see Grano, 1990). On the other hand, police are prone to say the reason for not believing some rape complainants resides in the fact that the rapes never occurred (Payton, 1967; Wilson, 1978; Jay, 1991). Medical Examiners lend support to this police position by emphasizing the ever-present possibility that rape complainants may be lying (Shill, 1969, 1971).

"METHODS

"This investigation is essentially a case study of one police agency in a small metropolitan area (population 70,000) in the Midwestern United States. This city was targeted for study because it offered an almost model laboratory for studying false rape allegations. First, its police agency is not inundated with serious felony cases and, therefore, has the freedom and the motivation to record and thoroughly pursue all rape complaints. In fact, agency policy forbids police officers to use their discretion in deciding whether to officially acknowledge a rape complaint, regardless how suspect that complaint may be. Second, the declaration of a false allegation follows a highly institutionalized procedure. The investigation of all rape complaints always involves a serious offer to polygraph the complainants and the suspects. Additionally, for a declaration of false charge to be made, the complainant must admit that no rape had occurred. She is the sole agent who can say that the rape charge is false. The police department will not declare a rape charge as false when the complainant, for whatever reason, fails to pursue the charge or cooperate on the case, regardless how much doubt the police may have regarding the validity of the charge.

"In short, these cases are declared false only because the complainant admitted they are false. Furthermore, only one person is then empowered to enter into the records a formal declaration that the charge is false, the officer in charge of records. Last, it should be noted that this department does not confuse reported rape attempts with completed rapes. Thus, the rape complainants referred to in this paper are for completed forcible rapes only. The foregoing leaves us with a certain confidence that cases declared false by this police agency are indeed a reasonable- if not a minimal reflection of false rape allegations made to this agency, especially when one considers that a finding of false allegation is totally dependent upon the recantation of the rape charge.

"We followed and investigated all false rape allegations from 1978 to 1987. A ranking police official notified us whenever a rape charge was declared false and provided us with the records of the case. In addition, the investigating officers provided any requested supplementary information so that we could be confident of the validity of the false rape allegation declarations.

"FINDINGS

"Regarding this study, 41% (45) of the total disposed rape cases (109) were officially declared false during this 9-year period, that is, by the complainant’s admission that no rape had occurred and the charge, therefore, was false. The incidence figure was variable from year to year and ranged from a low of 27% (3 out of 11 cases) to a high of 70% (7 out of 10 cases). The 9-year period suggests no trends, and no explanation has been made for the year-to-year fluctuation.

"The study of these 45 cases of false rape allegations inexorably led to the conclusion that these false charges were able to serve three major functions for the complainants: providing an alibi, a means of gaining revenge, and a platform for seeking attention/sympathy. This tripartite model resulted from the complainants’ own verbalizations during recantation and does not constitute conjecture. Of course, we are not asserting that these functions are mutually exclusive or exhaustive; rather, these rape recantations focused on a single factor explanation. A possible objection to these recantations concerns their validity. Rae recantations could be the result of the complainants’ desire to avoid a ‘second assault at the hands of the police. Rather than proceed with the real charge of rape, the argument goes, these women withdrew their accusations to avoid the trauma of police investigation.

"Several responses are possible to this type of criticism. First, with very few exceptions, these complainants were suspect at the time of the complaint or within a day or two after charging. These recantations did not follow prolonged periods of investigation and interrogation that would constitute anything approximating a second assault. Second, not one of the detectives believed that an incident of false recantation had occurred. They argued, rather convincingly, that in those cases where a suspect was identified and interrogated, the facts of the recantation dovetailed with the suspect’s own defense. Last, the policy of this police agency is to apply a statute regarding the false reporting of a felony. After the recant, the complainant is informed that she will be charged with filing a false complaint, punishable by a substantial fine and a jail sentence. In no case, has an effort been made on the part of the complainant to retract the recantation. Although we certainly do not deny the possibility of false recantations, no evidence supports such an interpretation for these cases.

"RELATED FINDINGS

In addition to the foregoing, certain other findings and observations relevant to false allegations warrant comment. First, false allegations failed to include accusations of forced sexual acts other than penile-vaginal intercourse. Not one complainant mentions forced oral or anal sex. In contrast, these acts were included in approximately 25% of the rounded forcible rape complaints. Perhaps it was simply psychologically and socially more prudent for these women to minimize the humiliation of sexual victimization by not embroidering the event any more than necessary. This phenomenon has been observed previously (McDowell and Hibler, 1987).

"One of the most haunting and serious implications of false rape allegations concerns the possibility of miscarried justice. We know that false convictions occur, but this study only tells us that these false accusers were weeded out during the very early stages of investigation. However encouraging this result may be, we cannot claim that false charging does not incur suffering for the accused. Merely to be a rape suspect, even for a day or two, translates into psychological and social trauma.

"We may well be faced with the fact that the most efficient police departments report the higher incidence of false rape allegations. In view of these factors, perhaps the most prudent summary statement that is appropriate from these data is that false rape accusations are not uncommon. Since this effort is the first at a systematic, long-term, on-site investigation of false rape allegations from a single city, future studies in other cities, with comparable policies, must assess the representativeness of these findings."

Further, Dr. Kamin noted studies of women on college campuses which show an approximately 50% rate of false rape reports, similar to the study above:

"Quite unexpectedly then, we find that these university women, when filing a rape complaint, were as likely to file a false as a valid charge. Other reports from university police agencies support these findings (Jay, 1991). In both police agencies, the taking of the complaint and the follow-up investigation was the exclusive responsibility of a ranking female officer. Neither agency employed the polygraph and neither declared the complaint false without a recantation of the charge." My conclusions:

(1) The polygraph should be employed to help evaluate rape claims (as it was by the police in the Midwestern city reported on by Dr. Kamin);

(2) Willingness or reluctance to take a polygraph test should be accorded substantial weight in deciding whether or not to seek to indict;

(3) Grand juries should be notified of offers to take and refusals as well as test results;

(4) The problem of unpunished rapes is not solved by punishing the innocent for imaginary rapes; 

(5) The Duke rape case is a hoax to which Mr. Nifong has been blind, even willfully blind;

(6) The indictments of the Duke Three should be dismissed immediately as improvidently granted and in the interests of justice;

(7) Mr. Nifong should be ousted from office by the voters of Durham County, North Carolina;

(8) Mr. Nifong should be investigated for professional misconduct by all appropriate authorities;

(9) Mr. Nifong should be sued by anyone with a claim against him who cares to pursue it; and

(10) Ms. Mangum should overcome her fear and come forward now and mitigate the damage done by admitting that she was not raped and explaining that she too is a victim of Mr. Nifong, NOT wait for the case to collapse.  (For her own sake as well as the sakes of the Duke Three, their families and friends, the people of Durham and criminal justice generally, she should speak out and let Mr. Nifong know that she is not his to command.)

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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