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- Posted: Tue, 12 Mar 2013 16:26:51 +0000
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Steubenville rape trial will center on issue of consent
STEUBENVILLE, Ohio -- This week's rape trial involving two Steubenville High School football players is expected to boil down to one main issue -- consent.
It won't be the job of the visiting judge hearing the case against the two 16-year-old students to consider whether their status as Big Red football players got them preferential treatment, whether more people should be charged or why high school kids freely had access to alcohol.
All the things that have been hotly debated by Internet activists, athletic boosters and women's rights groups for more than six months won't matter in the courtroom in this Ohio River Valley town this week.
Not even the disturbing video made by a friend of the defendants', in which the 16-year-old girl at the center of the rape case was derided as a "dead girl" and "so raped."
Instead, prosecutors and defense attorneys will zero in on a murky span of several hours in late August, when five teens left a raucous party and piled into a Volkswagen Jetta.
In the hours after, prosecutors say, the boys ferried the girl, who had been drinking, from party to party, sometimes carrying her when she couldn't walk.
They say both boys penetrated her digitally -- an act included in the definition of rape under state law.
Defense attorneys believe the girl, who lived across the river in Weirton, W.Va., made a decision to excessively drink and -- against her friends' wishes -- to leave with the boys. They assert that she consented to sex.
As the trial is set to begin Wednesday, hundreds of demonstrators organized by Occupy Steubenville are expected to be outside the courthouse to support the girl. The "silent protest" grew out of months of international attention the case has received, in part fueled by social media.
A sect of the hacker group Anonymous distributed the video that went viral, and a photo of what appeared to be the girl being carried by her arms and legs made its way around the Internet. Parallels were made between the Steubenville case and recent rapes of women in other parts of the world, including India.
Rallies held on the courthouse steps attracted thousands who expressed concerns that the small town would take care of its own. The Ohio Attorney General's office is prosecuting the case.
'Substantially impaired'?
But none of that is part of the case that visiting Judge Thomas Lipps will consider when deciding guilt or innocence in Jefferson County Juvenile Court.
Under Ohio law, what does matter is whether the girl was able to resist or consent or whether the alcohol she consumed at the end-of-summer parties "substantially impaired" her ability to do so. And whether the boys knew it.
The girl told authorities she doesn't remember the incident or anything that happened after she left the first party.
Associate Attorney General Marianne Hemmeter told the judge at a hearing in October that the Weirton teen was clearly too drunk to agree to sex.
"The state doesn't have to prove that she was flat-lined," Hemmeter said. "Everybody agrees she's puking. She's puking on herself. People have to help her walk. She can't talk. She's stumbling."
Attorney Walter Madison, who represents one of the accused boys, contends the girl voluntarily drank and willingly left in a car with a group of boys -- including the two charged football players.
"There's an abundance of evidence here that she was making decisions, cognitive choices," Madison said. "She didn't affirmatively say no."
Under the law, a victim doesn't have to resist or say the word no for a rape to occur.
Madison also suggested that the teen was embarrassed about her sexual activity only after her parents found out. He has said that her longtime friends and text messages contradict the idea that she was raped.
"The person who is the accuser here is silent just as she was that night, and that's because there was consent," he said.
Even the key witnesses for the prosecution, teenage boys who were in the same basement, waffled on the issue of consent -- or at least didn't grasp its legal significance -- when they testified at a hearing in October.
While none of them said the girl agreed to or participated in the sex acts, they painted a picture of someone who was in and out of awareness of her surroundings. At one point, they said, she gave the boys the one-key pass code to her phone. But at other times she was completely unresponsive as the boys touched and probed her, the witnesses said.
"I wouldn't say she was passed out but she wasn't there to say yes or no," one of the teen witnesses testified.
Another said she was "not quite passed out but she was not OK."
The girl's parents reported the case to Steubenville police after photos of their daughter surfaced on the Internet, as well as the now-infamous 12-minute video in which several teenage boys talk about her being raped.
A police detective interviewed people who attended the parties and confiscated more than a dozen cellphones.
The three key witnesses, some of whom had taken photos or videos of the nude teen girl, later filled in details for police.
Prosecutors have said they couldn't charge the other teens because the photos had been deleted and a state lab could not recover them.
If the two defendants, who were released from detention in the fall, are found guilty, they could be sent to a juvenile facility until they are 21 and be made to register as sex offenders. One also has been charged with improper use of a minor in nudity-oriented material.
Victim vs. accused
While sexual assaults involving alcohol or drugs are by far the most common among cases reported, they historically have been difficult to prosecute, partly because of a tendency to blame victims for their attacks, some experts say.
The key for prosecutors is to keep the focus on the offender and the offender's behavior instead of on the victim, said Jennifer Gentile Long, director of AEquitas, which helps prosecutors in cases involving violence against women.
Defense strategy is typically focused on discrediting the victim in any way possible to distract and bias the fact-finder, as if how victims dressed or what they drank invited the attack, she said.
"You have to show them this wasn't a mistake or misunderstanding, it was a decision to assault a victim," Long said.
Prosecutors also have to illuminate the decision-making process that offenders go through, Long said. They can point out things like the difference in the levels of intoxication of the victim and the offenders -- "How much did people drink?"
Long said prosecutors can also make the argument that people should be able to feel safe with friends or acquaintances. "You shouldn't be in danger of being raped when you get sick," she said. "Nice people, they get you help."
Long also said prosecutors need to stress that sex and rape are two different things. She said most would agree that in the middle of a bout of vomiting is not the time most people are interesting in anything sexual.
Bill Gallagher, a criminal defense attorney with more than 20 years of experience, said that the easiest way for a defense to prevail is to poke holes in the prosecution's case -- which often means an accuser's credibility.
"If you can do that, you may never even have to get to the issue of consent," Gallagher said.
Gallagher said defense attorneys can look at the very same facts as the prosecutors but with a view that shows the ways in which accusers were making decisions.
"Someone may have been vomiting, but were they able to find the toilet or a trash can? Did they know where they were? Then maybe you can start saying they were not substantially impaired," Gallagher said.
Prosecutors may argue "substantially impaired" is more similar to the circumstances in a drunken-driving case, Gallagher said, while defense attorneys may view the same standard as an extremely serious impairment -- in which a victim is unconscious, can't move or is near death.
All eyes on the judge
The Steubenville case, Gallagher said, is a bit different because the lawyers aren't dealing with jurors who need to be educated but instead a judge who has extensive experience in juvenile court and understands the mind-set of 14-, 15- and 16-year-olds.
Gallagher, who practices in the Cincinnati area where Lipps was a juvenile judge for 12 years, said that Lipps was known for being calm and deliberate.
"He does not get riled," Gallagher said.
It is also important for the defense that the judge is not attached to the community and therefore has no concerns about how the outcome of the case will be perceived publicly, as he might be if he were locally elected.
Gallagher said that direct witnesses to the incident, like the ones prosecutors presented during an earlier hearing, could cause difficulties for the defense.
Sex acts or attacks are usually in private areas, with witnesses more in the periphery, he said.
Meanwhile, a West Virginia judge has ruled that two juveniles considered by Madison to be key to his client's defense cannot be compelled to cross into Ohio and testify. Madison said in a court filing that their testimony was vital to show how much the reported victim had to drink and her ability to make decisions. The judge also rejected a request for the defense to issue a subpoena to the victim to testify.
In the end, both prosecutors and defense attorneys will have to deal with the judge's notions of the 'teens' behavior, Gallagher said.
"It might be hard even for a judge to accept what type of behavior is acceptable with younger people."
STEUBENVILLE, Ohio -- This week's rape trial involving two Steubenville High School football players is expected to boil down to one main issue -- consent.
It won't be the job of the visiting judge hearing the case against the two 16-year-old students to consider whether their status as Big Red football players got them preferential treatment, whether more people should be charged or why high school kids freely had access to alcohol.
All the things that have been hotly debated by Internet activists, athletic boosters and women's rights groups for more than six months won't matter in the courtroom in this Ohio River Valley town this week.
Not even the disturbing video made by a friend of the defendants', in which the 16-year-old girl at the center of the rape case was derided as a "dead girl" and "so raped."
Instead, prosecutors and defense attorneys will zero in on a murky span of several hours in late August, when five teens left a raucous party and piled into a Volkswagen Jetta.
In the hours after, prosecutors say, the boys ferried the girl, who had been drinking, from party to party, sometimes carrying her when she couldn't walk.
They say both boys penetrated her digitally -- an act included in the definition of rape under state law.
Defense attorneys believe the girl, who lived across the river in Weirton, W.Va., made a decision to excessively drink and -- against her friends' wishes -- to leave with the boys. They assert that she consented to sex.
As the trial is set to begin Wednesday, hundreds of demonstrators organized by Occupy Steubenville are expected to be outside the courthouse to support the girl. The "silent protest" grew out of months of international attention the case has received, in part fueled by social media.
A sect of the hacker group Anonymous distributed the video that went viral, and a photo of what appeared to be the girl being carried by her arms and legs made its way around the Internet. Parallels were made between the Steubenville case and recent rapes of women in other parts of the world, including India.
Rallies held on the courthouse steps attracted thousands who expressed concerns that the small town would take care of its own. The Ohio Attorney General's office is prosecuting the case.
'Substantially impaired'?
But none of that is part of the case that visiting Judge Thomas Lipps will consider when deciding guilt or innocence in Jefferson County Juvenile Court.
Under Ohio law, what does matter is whether the girl was able to resist or consent or whether the alcohol she consumed at the end-of-summer parties "substantially impaired" her ability to do so. And whether the boys knew it.
The girl told authorities she doesn't remember the incident or anything that happened after she left the first party.
Associate Attorney General Marianne Hemmeter told the judge at a hearing in October that the Weirton teen was clearly too drunk to agree to sex.
"The state doesn't have to prove that she was flat-lined," Hemmeter said. "Everybody agrees she's puking. She's puking on herself. People have to help her walk. She can't talk. She's stumbling."
Attorney Walter Madison, who represents one of the accused boys, contends the girl voluntarily drank and willingly left in a car with a group of boys -- including the two charged football players.
"There's an abundance of evidence here that she was making decisions, cognitive choices," Madison said. "She didn't affirmatively say no."
Under the law, a victim doesn't have to resist or say the word no for a rape to occur.
Madison also suggested that the teen was embarrassed about her sexual activity only after her parents found out. He has said that her longtime friends and text messages contradict the idea that she was raped.
"The person who is the accuser here is silent just as she was that night, and that's because there was consent," he said.
Even the key witnesses for the prosecution, teenage boys who were in the same basement, waffled on the issue of consent -- or at least didn't grasp its legal significance -- when they testified at a hearing in October.
While none of them said the girl agreed to or participated in the sex acts, they painted a picture of someone who was in and out of awareness of her surroundings. At one point, they said, she gave the boys the one-key pass code to her phone. But at other times she was completely unresponsive as the boys touched and probed her, the witnesses said.
"I wouldn't say she was passed out but she wasn't there to say yes or no," one of the teen witnesses testified.
Another said she was "not quite passed out but she was not OK."
The girl's parents reported the case to Steubenville police after photos of their daughter surfaced on the Internet, as well as the now-infamous 12-minute video in which several teenage boys talk about her being raped.
A police detective interviewed people who attended the parties and confiscated more than a dozen cellphones.
The three key witnesses, some of whom had taken photos or videos of the nude teen girl, later filled in details for police.
Prosecutors have said they couldn't charge the other teens because the photos had been deleted and a state lab could not recover them.
If the two defendants, who were released from detention in the fall, are found guilty, they could be sent to a juvenile facility until they are 21 and be made to register as sex offenders. One also has been charged with improper use of a minor in nudity-oriented material.
Victim vs. accused
While sexual assaults involving alcohol or drugs are by far the most common among cases reported, they historically have been difficult to prosecute, partly because of a tendency to blame victims for their attacks, some experts say.
The key for prosecutors is to keep the focus on the offender and the offender's behavior instead of on the victim, said Jennifer Gentile Long, director of AEquitas, which helps prosecutors in cases involving violence against women.
Defense strategy is typically focused on discrediting the victim in any way possible to distract and bias the fact-finder, as if how victims dressed or what they drank invited the attack, she said.
"You have to show them this wasn't a mistake or misunderstanding, it was a decision to assault a victim," Long said.
Prosecutors also have to illuminate the decision-making process that offenders go through, Long said. They can point out things like the difference in the levels of intoxication of the victim and the offenders -- "How much did people drink?"
Long said prosecutors can also make the argument that people should be able to feel safe with friends or acquaintances. "You shouldn't be in danger of being raped when you get sick," she said. "Nice people, they get you help."
Long also said prosecutors need to stress that sex and rape are two different things. She said most would agree that in the middle of a bout of vomiting is not the time most people are interesting in anything sexual.
Bill Gallagher, a criminal defense attorney with more than 20 years of experience, said that the easiest way for a defense to prevail is to poke holes in the prosecution's case -- which often means an accuser's credibility.
"If you can do that, you may never even have to get to the issue of consent," Gallagher said.
Gallagher said defense attorneys can look at the very same facts as the prosecutors but with a view that shows the ways in which accusers were making decisions.
"Someone may have been vomiting, but were they able to find the toilet or a trash can? Did they know where they were? Then maybe you can start saying they were not substantially impaired," Gallagher said.
Prosecutors may argue "substantially impaired" is more similar to the circumstances in a drunken-driving case, Gallagher said, while defense attorneys may view the same standard as an extremely serious impairment -- in which a victim is unconscious, can't move or is near death.
All eyes on the judge
The Steubenville case, Gallagher said, is a bit different because the lawyers aren't dealing with jurors who need to be educated but instead a judge who has extensive experience in juvenile court and understands the mind-set of 14-, 15- and 16-year-olds.
Gallagher, who practices in the Cincinnati area where Lipps was a juvenile judge for 12 years, said that Lipps was known for being calm and deliberate.
"He does not get riled," Gallagher said.
It is also important for the defense that the judge is not attached to the community and therefore has no concerns about how the outcome of the case will be perceived publicly, as he might be if he were locally elected.
Gallagher said that direct witnesses to the incident, like the ones prosecutors presented during an earlier hearing, could cause difficulties for the defense.
Sex acts or attacks are usually in private areas, with witnesses more in the periphery, he said.
Meanwhile, a West Virginia judge has ruled that two juveniles considered by Madison to be key to his client's defense cannot be compelled to cross into Ohio and testify. Madison said in a court filing that their testimony was vital to show how much the reported victim had to drink and her ability to make decisions. The judge also rejected a request for the defense to issue a subpoena to the victim to testify.
In the end, both prosecutors and defense attorneys will have to deal with the judge's notions of the 'teens' behavior, Gallagher said.
"It might be hard even for a judge to accept what type of behavior is acceptable with younger people."
