Duke accuser says 1 player declined to join assault

The accuser in the Duke University lacrosse sexual assault case has told an investigator that one of the three players she accused of raping her last spring did not have sex with her, according to a defense motion filed Thursday.

The woman, hired as a stripper for a team party, told an investigator last month that Reade Seligmann watched as she was assaulted. She said Seligmann was urged by other players to have sex with her but declined, saying he was about to be married, according to an investigator’s report.

It was the latest of several contradictory accounts the woman has provided to police and medical professionals since saying she was gang-raped in the bathroom of an off-campus house in March.

“The accuser’s most recent recollection of events demonstrates clearly that she cannot accurately recall and describe her attackers and that any identification by her is necessarily unreliable,” the motion said.

Because the prosecution has not provided DNA evidence or other eyewitness accounts implicating the defendants, the case hinges almost completely on the testimony of the accuser, a 28-year-old mother of two who worked for an escort service.

During a police photo lineup April 4, the woman said she was “100%” certain that Seligmann was the man who forced her to perform oral sex after she had been raped by two other players. Yet, at an earlier photo lineup, she had said that she was only 70% certain Seligmann was even present that night.

The accuser’s latest statements came during a Dec. 21 interview in which she also said she was not certain she had been vaginally penetrated by a penis -- a requirement for a rape charge under state law. That prompted Dist. Atty. Mike Nifong to drop rape charges against Seligmann and the two other accused players on Dec. 22. They still face kidnapping and sexual offense charges.

In their motion, defense lawyers said they were not told why the accuser was interviewed in December -- eight months after investigators had last questioned her. But they noted that the interview was held just six days after a lab director testified that DNA found on the woman’s body and underwear came from several unidentified males, none of them the defendants.

The accuser told investigator Linwood Wilson last month that the assault began about 11:40 p.m. March 13. Based on statements from the accuser and others at the party, along with time-stamped party photographs, police put the time at shortly after midnight March 14. The accuser told police in April that the attack had lasted 30 minutes.

The defense motion said phone records showed that the woman was talking on her cellphone at 11:39 p.m., and was photographed dancing just after midnight. Phone records show that Seligmann was talking on his cellphone to his girlfriend at 11:50 p.m., according to the defense motion.

The accuser told Wilson that defendant David Evans, not Seligmann, had forced her to have oral sex. In the April photo lineup, she said she was 90% certain that Evans “looks like one of the guys who assaulted me,” but did not mention oral sex.

In her April police statement, the accuser described in detail how three men raped her vaginally, anally and orally. She used the word “penis” at least twice to describe sexual penetration.

But in her interview with Wilson last month, the woman said: “It felt like a penis.... I couldn’t say 100% that I saw them use their penis, but it was certainly something.”

In both her police statement and the photo lineup in April, the accuser referred to her attackers as “Adam,” “Brett” and “Matt” -- the names she said they used at the party. In her interview with Wilson, she referred to them as Seligmann, Evans and fellow defendant Collin Finnerty.

Wilson noted that the woman “now knows their real names.”

The defense motion argued that she could have only learned their names from the media since investigators had not provided them to her when they last spoke to her in April. “This means that the accuser’s present recollection of who allegedly attacked her, and how, has been irreparably tainted by this publicity,” the motion said.

The case resumes Feb. 5 with a defense motion to suppress the accuser’s photo lineup identifications. Defense lawyers have indicated they will subpoena the woman. It would be the first time the accuser has seen the defendants in person since the party.

david.zucchino@latimes.com