Christine M. Flowers | THE POLITICS OF RAPE: PART II

IT'S USUALLY not a good idea to write about the same thing twice in a row.

Makes people think you're either lazy or obsessed. But there are times when a follow-up is necessary, a postscript that wanders off in a different direction.

After last week's commentary on Jeffrey Marsalis, I had no intention or desire to tackle the subject of rape again.

But judging from the response my last piece received, it became clear that an encore was needed. So, in what I promise will be the exception and not the rule, here is the sequel.

When Jeffrey Marsalis was acquitted last week, the heavens opened. Jurors were vilified, the legal system excoriated, the concept of "reasonable doubt" treated like a bothersome speed bump on the expressway to a conviction.

And the women who claimed he'd assaulted them were transformed from accusers to victims. Anyone who questioned their testimony (or the unintended messages that it sent) was called a misogynist. Anyone who questioned their judgment was worse.

With the possible exception of his parents, everyone agrees that Marsalis is a sociopath of the highest order. An earlier jury acquitted him of strikingly similar charges, another awaits him in Idaho. And thanks to convictions on sexual assault charges, he's facing significant time behind bars. Which means he won't be trolling the internet for love anytime in the near future.

But the prosecution didn't make its case for rape. It failed to prove lack of consent, a crucial element. It failed to prove, beyond a reasonable doubt, that Marsalis forced his victims to have intercourse. And while the testimony of the accusers was compelling, it wasn't enough to persuade a 12-member Philadelphia jury of ordinary citizens to convict him of rape. That made a lot of people who get their legal training from watching "Law & Order" very angry.

All that caused me to reflect on how rape is treated today. It used to be that women who "cried rape" were all too often disbelieved or silenced. Many states had laws that made it impossible for a husband to rape his wife, since consent was presumed. In other cases, a woman's past sexual history was used to destroy her credibility. That was wrong. That was then.

But now the pendulum has swung in the opposite direction.

Today, if a woman makes a rape accusation, the presumption is that she wouldn't have brought charges if the accusation weren't true. And that's just as bad as the days when women were reflexively labeled liars.

As a woman, I'm grateful for the fact that the law is designed to protect me from abuse. Grateful we have a special visa for battered women, and that we're passing laws named for "Jessica" and "Megan" to insulate children from harm. A society that views rape as violence, and not sex, is a society that puts a premium on human dignity.

But there's still that troublesome pendulum trying to sweep reasonable doubt out the window.

In way too many instances today, the mere accusation of rape exposes men to criminal charges, character assassination, crushing legal debts and an eternal stigma. Even if charges are ultimately dropped, and even if the accuser is revealed as a liar, the accused will always bear the brand of the ugliest four letter word in the English lexicon.

In North Carolina, three boys will forever be remembered as the Duke Rape Defendants. Crystal Mangum, the woman who tried to destroy them with her lies, hides behind a shield of mental instability, and is allowed to sink back into richly deserved anonymity. That's something forever denied to the defendants, pursued like animals by a rabid press, a malicious faculty and a machiavellian prosecutor who created an unholy alliance with minority and women's groups.

Fortunately, there is a sort of rough justice. DA Mike Nifong is disbarred, disgraced and facing civil suits and possible criminal charges. But doesn't justice also demand that the linchpin of his opportunistic crusade also be charged with a crime? After all, what she did to the defendants was as much a violation as the fictitious rape.

Fortunately, the Duke boys never spent a day behind bars. In 1984, a man was sentenced to death for a rape-murder he didn't commit. Years later, DNA exonerated him. Others have been freed after spending decades in prison.

So if you're enraged because a Jeffrey Marsalis is acquitted for lack of enough evidence under the rules of our judicial system, remember the alternative. And be grateful that justice doesn't always rest on the swing of the pendulum. *

Christine M. Flowers is a lawyer.

E-mail cflowers1961@yahoo.com.