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Originally published at Eclectablog.

WARNING: Rape trigger. Description of assault is included in this post.

A 16-year old rape victim told this story in court of of being raped at a high school graduation party at the tender age of 15:

The girl testified that she was 15 when she attended the graduation party with a group of friends. She said during the party Cooper told her that he was 21 and he asked her to move from the backyard where everyone was gathered to the front yard to smoke a cigarette and for more privacy. She said she agreed.

The girl said she and Cooper spent about an hour talking, although her friends told her later that she had been missing for two hours. She said as she got up to rejoin her friends, Cooper pulled her down to the ground and used one hand to cover her mouth and his other hand to unbutton her shorts.

"€œI tried to crawl away,"€ the girl said, adding that Cooper grabbed her ankles and pulled her back toward him.

She said he then removed her shorts and raped her. She said afterward she had bruising on her legs and other injuries.

What happened next? What happened next is that she got to spend some quality time with the defendant's lawyer answering questions that have absolutely nothing to do with the rape itself and absolutely EVERYTHING to do to convincing the jury that the girl -- THE 15-YEAR OLD GIRL -- brought it on herself.

On cross examination, Cooper'€™s defense attorney questioned how much alcohol the girl had consumed and whether she had crawled naked into bed with another male at the party. The defense attorney also asked the girl if her friends found her in bed with the other boy and whether she had walked around the party without her top on after swimming.
The article goes on to say that the girl had had five shots of vodka, that she doesn't remember parts of the event, and that there is some suspicion that she was drugged by her 23-year old rapist.

But none of that matters.

It doesn't matter if she ran around the party with her breasts exposed or if she didn't.

It doesn't matter if she was found in bed naked with a boy or whether she wasn't.

It doesn't matter how much alcohol she drank.

What matters is that she was a 15-year old girl who was raped. None of the rest matters. The only reason to follow that line of questioning is to admit that your client raped a drunk 15-year old girl and you are disgustingly trying to get him off on the "she was asking for it" defense.

No girl, no matter how drunk, no matter how flirtatious, is "asking" to be raped and no 15-year old girl can legally give consent to having sex at all. Period.

If I were the judge in this case, I would cite the defense attorney for contempt of court and throw his or her ass in jail.

This is rape culture in America today and unless we all stand up and shout about it, nothing will ever happen to change it.

Originally posted to Eclectablog - eclectic blogging for a better tomorrow on Fri Aug 15, 2014 at 06:27 AM PDT.

Also republished by Michigan, My Michigan, Motor City Kossacks, State & Local ACTION Group, House of LIGHTS, and This Week in the War on Women.

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Comment Preferences

  •  This is not just a sleazy legal tactic. (86+ / 0-)

    The assumption that girls and women bear the responsibility for protecting their virtue is still deeply embedded in the culture. If they do something that in any way makes them more vulnerable to assault, men and boys are considered to just be doing what comes naturally.

    This is something that must be hammered on over and over again to change it. Men are responsible for rape. Boys need to be raised with the fear that they had better be careful how they behave because they risk being charged with rape.  

    •  I agree (5+ / 0-)

      but is fear the right thing we want to drive the actions of our youth? Isn't there something else that we could do to instill respect for everyone's right to self determination (if that's what we are talking about) other than fear?

      •  Fear is what controls the lives of girls (8+ / 0-)

        and women. Only when that has been balanced enough to make it something a level field can we begin to consider the possibilities of cultural evolution. Men who hold the power of fear have little incentive to change their biases.

      •  Respect is the ideal, I agree. (11+ / 0-)

        It would be wonderful if kids were taught from birth that others are to be respected.  They should also be taught that they are responsible for their own actions.

        However, as someone who was raped a very long time ago and spent years dealing with the aftermath, if fear will keep them from raping someone else - fear of incarceration, fear of peer judgement, fear of whatever -  then fear is an acceptable alternative to me.

        "...you never quite know where you are with him. He's the sort of chap who follows you into a revolving door and comes out in front." ~Yes, Minister

        by Nicci August on Fri Aug 15, 2014 at 10:47:48 AM PDT

        [ Parent ]

        •  I agree wholeheartedly. (4+ / 0-)
          Recommended by:
          Maggiemad, koNko, MaryKane, colbey

          Whatever works.  And no matter how many boys there are who ARE raised to respect girls/women, there will always be those who don't.  They're the same losers who don't respect ANYONE except themselves and their wants.

        •  My first husband (0+ / 0-)

          grew up in a neighborhood where most of the boys got themselves in some kind of trouble or other.  When one got the idea to shop lift or break into a home, the rest just went along.  By my husband, as a boy, always walked away.

          His single Mom taught him to respect the rights and property of others.  She taught him respect and also to be responsible.

          But she also told him if he got into trouble with the police, she would not bail him out of jail or help him if he had committed a crime.  She meant it and he knew it. He was afraid of her disapproval and also of being in legal trouble.

          I think a lot of respect with a bit of fear working together might not be a bad thing.

      •  What ever works is good IMHO (6+ / 0-)

        Many won't respond to anything else.



        Women create the entire labor force.
        ---------------------------------------------
        Sympathy is the strongest instinct in human nature. - Charles Darwin

        by splashy on Fri Aug 15, 2014 at 12:36:21 PM PDT

        [ Parent ]

      •  i agree with others that fear (1+ / 0-)
        Recommended by:
        ncratgirl

        has been used to control women for ages, and to complain about it only when it seems like it might also be applied to men seems....disingenuous.

        but if you don't like fear, then how about respect?

        because our current culture is extremely sexist.  it is WRONG to think, and to teach our children, that males are inherently inferior.

        the male of the species is NOT more animalistic than the female of the species.  males are NOT controlled by their biology, and are NOT overwhelmed by their hormones.

        it is past time for us to acknowledge that males can also be highly intelligent, and that they can, and often do, overcome their biological differences and achieve the same level of humanity as females.

        we need to start teaching our children--girls AND boys--that men have the potential to be just as loving, rational, empathetic, intelligent, and in control of themselves as women.  when we do that, both boys and girls can respect each other as equals.

        but as long as we continue to instill the false ideas of "boys will be boys," and "she did X or looked Y, so he couldn't help himself," and "he lost control and made a mistake" then how can we expect boys to have respect or self-respect?

      •  you mean (0+ / 0-)

        like, that's just wrong, don't do shi like that.
        could that work?

    •  Agreed. Now let the judge help out (7+ / 0-)

      by not allowing those questions in the courtroom. They don't apply to the case; so they should not be allowed.

      war is god's way of teaching americans geography. -ambrose bierce

      by sillyalicia on Fri Aug 15, 2014 at 10:35:46 AM PDT

      [ Parent ]

      •  That might require changes in the law (4+ / 0-)
        Recommended by:
        Penny GC, susans, AR2, JuliathePoet

        to give the judge the power to do that.

      •  Most of them do (2+ / 0-)
        Recommended by:
        djrez, Sparhawk
        On cross examination, Cooper'€™s defense attorney questioned how much alcohol the girl had consumed and whether she had crawled naked into bed with another male at the party. The defense attorney also asked the girl if her friends found her in bed with the other boy and whether she had walked around the party without her top on after swimming.
        Cooper is presumably going to claim consent.  The key witness that there was not consent was the alleged victim.
        1. If the girl was drunk her credibility drops.  Cooper will presumably try to prove that she was drunk enough not to remember if she consented or to consent to something that she would later regret and deny consenting to, but not so drunk that she could not legally consent.
        2. if the girl was acting sexually in other ways - crawling naked into bed with another male, especially one she did not have a prior relationship with, or walking around topless - that also suggests that she was drunk and behaving sexually, making it more believable that she behaved in the same way with Cooper.
        3. If she denies that behavior but other witnesses claim she did behave that way, then it cuts to her credibility even more - she behaved sexually when drunk, denies it now when sober, and the same applies to her consensual behavior with Cooper.

        All of this is relevant to Cooper's defense and it is hard to see how you could give him a Constitutionally acceptable trial without letting it be admissible.

        •  No! No! No! (9+ / 0-)

          This is utter and complete bulls hit!  100% rape culture garbage. A 15 year-old cannot consent, it is minimally statutory rape when a 21 year-old man has sex with a 15 year-old, and only our rape culture says that alcohol makes any difference.

          Rape is rape.

          •  Statutory rape and forcible rape are different (1+ / 0-)
            Recommended by:
            MaryKane

            crimes and forcible rape gas significantly higher penalties in most states.

            only our rape culture says that alcohol makes any difference.
            It is hardly "rape culture" to say that people do stupid things they later regret when drunk or that the memories of people who were drunk at the time are unreliable.
            •  That does not give rapists a pass (3+ / 0-)
              Recommended by:
              MaryKane, colbey, Back In Blue

              Forcable rape of girl who is fully clothed or not, is force able rape and a 21 year old man who forcibly rapes a 15 year old girl belongs on jail for a felony crime.

              His defense attorney can raise as much doubt by speculation and innuendo as he likes but if the prosecutor doesn't knock it down as such s/he is not doing a proper job.

              If he raped her it is a serious crime, he's a danger to society and belongs behind bars.

        •  THANKS BBB. In America, everyone has a right to a (0+ / 0-)

          defense - even a man accused of rape.  
          Question - were his sperm found in her?  
          IF so, then, since she is under age - there is no defense - right?
          IF not, then why not, if he is accused of raping her?

        •  Beelzebubs, you are wrong. (3+ / 0-)
          Recommended by:
          Maggiemad, MaryKane, colbey

          She was fifteen.  According to U.S. law, that is below the age of consent and by law, any sex act is statutory rape.

          •  But not forcible rape (0+ / 0-)

            Different crime in most states.

            •  You're kidding, right? (0+ / 0-)

              Forcible rape?  Please.  First of all, her testimony suggests it was rape, pure and simple.  (The "forcible" makes you sound like you're Todd Akin, and that's a whole other issue.  ALL rapes are rapes, and the effort to redefine it to suit right wing fantasies is shameful, not to mention unfactual.)

              PLUS, in "most states," rape convictions have the same sentencing consequences regardless of the circumstances.

              •  I'm not an expert on the laws of all of the states (0+ / 0-)

                but in New York that is definitely not the case.

                ALL rapes are rapes, and the effort to redefine it to suit right wing fantasies is shameful, not to mention unfactual.)

                PLUS, in "most states," rape convictions have the same sentencing consequences regardless of the circumstances.

                See http://statelaws.findlaw.com/....  As you can see, the offenses are different for forcible rape vs. statutory rape of older children and the penalties are radically different.
                •  Please read again. (0+ / 0-)

                  YOu need to read again your link regarding rape in New York.  You have mistaken or not comprehended the meaning of the excerpt you provided.

                  The first paragraph clearly states that "first degree rape" covers all kinds of sexual penetration, including statutory rape and circumstances where the victim could not reasonably consent.

                  The next paragraph covers 2nd and 3rd degree rape, which are dependent on circumstances, set out below that paragraph.  Those circumstances include being married to the rapist, some degree of mental deficiency in the rapist, and other things.

                  The law is nuanced, yes, but your understanding that 1st degree rape excludes statutory rape is mistaken.

                  •  Sigh... work on your reading comprehension (0+ / 0-)

                    http://statelaws.findlaw.com/...

                    A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: (a) by "forcible compulsion" - compelling the victim through the use of physical force or the threat of immediate death, physical injury or kidnapping; (b) who is incapable of consent by reason of being physically helpless; (c) who is less than 11 years old; or (d) who is less than 13 years old and the defendant is 18 years old or more.  Section 130 of the New York Penal Code provides that "sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight. First-degree rape is a class B felony.

                    A person commits second-degree rape when he or she engages in sexual intercourse with another person: (a) who is less than 15 years old and the defendant is 18 years old or more; or (b) who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

                    A person is guilty of rape in the third degree - the lowest degree of the offense - when he or she engages in sexual intercourse with another person: (a) who is incapable of consent by reason of some factor other than being less than 17 years old; (b) who is less than 17 years old, and the defendant is 21 years old or more; or (c) without such person's consent, which is withheld for some other reason than incapacity to consent.

                    As you can see, forcible rape is rape in the first degree.  Statutory rape with a 16 year old girl is rape in the third degree.

                    Any more questions?

    •  Re (1+ / 0-)
      Recommended by:
      afisher
      This is something that must be hammered on over and over again to change it. Men are responsible for rape. Boys need to be raised with the fear that they had better be careful how they behave because they risk being charged with rape.  
      No one of either gender needs to be raised with any kind of fear. People who claim otherwise do not have young people's best interest at heart.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Fri Aug 15, 2014 at 10:46:22 AM PDT

      [ Parent ]

      •  As someone said above, (2+ / 0-)
        Recommended by:
        Daulphin, JuliathePoet

        fear is sometimes the only thing that works.

        If every male was raised like my husband, Mr. Scribe, taught that women have value and are to be respected, and that no man is entitled to sexual pleasure from any woman, then there would be a lot fewer rapes.

        But since that's not the case, maybe the fear of having one's reputation ruined and having to register as a sex offender for the rest of your life (which can affect job prospects in many cases, especially with organizations that work with children) will do it.

        There's only one rule that I know of, babies -- goddammit, you've got to be kind. -- Kurt Vonnegut

        by Cali Scribe on Fri Aug 15, 2014 at 02:47:26 PM PDT

        [ Parent ]

        •  No thanks (0+ / 0-)

          Have fun with that.

          Well adjusted, properly socialized people don't need fear to keep them in line.

          I wouldn't try that even as a stopgap measure. People should be made aware of the serious consequences of sexual related crimes just as they should be aware of the consequences of other serious crimes. But they shouldn't live in fear. Ever.

          (-5.50,-6.67): Left Libertarian
          Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

          by Sparhawk on Fri Aug 15, 2014 at 03:11:56 PM PDT

          [ Parent ]

          •  Men who rape are not well adjusted (10+ / 0-)

            What in the world would make you think that rapist are well adjusted? They aren't well adjusted. They are rapists, and they do not live in a culture of consent.

            They believe that they have a right to take pleasure in a woman's body, and that her physical and emotional pain is less important than their desire for power and control.  They live in a culture that says that it is okay to rape young women, old women, mothers, grandmothers, any woman, because women are sexual objects and they owe men sex. You are absolutely right that men raised to believe that rape is an issue to be decided in a courtroom where the victim is traumatized, demonized and where male jurors who have raped women, (and gotten away with it so far) are likely to side with the rapist, they are not being raised to be healthy young men.

            It is much better to let rape culture continue unabated, than teaching men not to be rapists in the first place! /heavy sarcasm

            If nothing else every young man should understand that every young woman knows has the potential to be raped, and she is taking a risk each time she goes on a date with you, or anyone else. She really never knows if she is alone with a man who sees her as a whole and complete person that is more than the sum of her body parts, or if she is with a man who see her as their's for the taking.

            Asking a friend if he *got laid, is objectification and treating sex like the man is getting something that a faceless, nameless person was only tangentially involved in, and is part of the problem. Taking a picture to prove that you had sex with a girl, whether there is consent or not, is part of the problem. Rape culture is not made up only of rapists, it is made up of people who identify with rapists and adopt behaviors that rapists engage in as "cool" or just normal.

            Every man needs to know not to rape, but that is the tip of the iceberg. They should know how to handle it if their girlfriend tell them she was raped. Compassionate men stick around when a rape victim gets emotional about what happened. A man who cares about a woman, does NOT try to initiate anything that is sexual after she discloses be raped or sexually assaulted. A man of integrity understands how precious the trust of a woman is, and will let her call the shots on what is comforting to her. A woman who has just disclosed a rape should never be made to feel that it is her fault.  If the rape makes a man angry, that anger is expressed towards the rapist, not the victim.

            Every young man needs to realize that only he has the power to decide if he will be a rapist, but that women are not responsible for being a rape victim. Rape victims are people you know, and so are rapists. Every man should want the culture of rape to be eliminated, and putting all the fear and blame on the girls and women who are raped,  is like saying that children molested by pedophiles are responsible for being victims.

            •  I agree COMPLETELY with you, Julia. On every (5+ / 0-)

              level, in every way imaginable. I take the same hard-line, no-stupid-compromises-whatsoever, stance that you do. To perfectly summarize as you said, rape is rape, period. It is a crime of violence that classifies as a felony - FULL STOP!!! And so the perp should be treated like the felon he is if he commits rape. FULL STOP!! And he should be put away in the slammer for many years for committing a crime as violent as rape. FULL STOP!! Does anyone have any questions? I'm speaking to the men who do this, including and especially the nasty judges and attorneys who stoop so low as to try and pin the guilt on the VICTIM!  

            •  Thank you, JuliathePoet! (3+ / 0-)
              Recommended by:
              Maggiemad, koNko, colbey

              Very well said, and there's nothing we need to add to your excellent explanation of reality.

          •  Women have no choice but to live in fear. n/t (7+ / 0-)

            "Things turn out best for the people who make the best of the way things turn out." ~ John Wooden

            by Terry S on Sat Aug 16, 2014 at 02:45:05 PM PDT

            [ Parent ]

      •  Girls and their parents don't get that option (2+ / 0-)
        Recommended by:
        MaryKane, colbey

        Because every day girls are subject to an environment where they may come in contact with men that may molest or rape then who are not well adjusted and socialized.

        So we can't pretend the danger doesn't exist and the fear implicit in the situation is unavoidable and something we have to deal with.

        Girls and boys need to be taught "no means no" and there are consequences.

        If you are living in a society where everyone is well adjusted, bad things never happen to good people and there is no reason to ever fear or know why and how to deal with such situations then I'm happy for you.

        I don't and I'm a parent so I'll deal with the facts of the world most women including my wife and daughter live in.

        Fear is a natural response to danger and serves a useful purpose, assuming it is a neurosis is a foolish modern construct that is discredited every time fear is proven to be a rational response.

    •  The defense attorney's job (2+ / 0-)
      Recommended by:
      Ginny in CO, AR2

      is to raise reasonable doubt in the minds of the jury.

      I was on the jury in a sexual assault case, oral and digital penetration and attempted rape. The perpetrator was a part-time maintenance worker at the victim's apartment complex, he used the passkey to enter the apartment, grabbed a heavy pot from the kitchen and threatened the victim with it before climbing in bed with her. Only the victim's young son (whose crib was located in her bedroom) waking up and starting to cry scared off the perp before it became a full-fledged rape.

      The defense attorney tried many different tacks: claimed that the perp was a sleepwalker, called into question the DNA evidence, and the last straw (at least for the women on the jury) was when he claimed the abrasions around the vagina from the digital penetration were caused by tampon insertion.

      It's not a fun job...but in the case of people who are truly innocent it's necessary. Got to take the bad apples along with the good, I guess.

      There's only one rule that I know of, babies -- goddammit, you've got to be kind. -- Kurt Vonnegut

      by Cali Scribe on Fri Aug 15, 2014 at 02:44:13 PM PDT

      [ Parent ]

      •  The tactics you describe do not appear (4+ / 0-)
        Recommended by:
        Skanner, peptabysmal, AR2, JuliathePoet

        to have subjected the victim to personal abuse in the courtroom. What is being objected to is not the defense attorney putting up a defense for the accused. It is subjecting the victim of one traumatic experience to another one. The right of a defendant to mount a defense has limits when it goes to the point of abuse of the victim.  

        •  exactly right (0+ / 0-)

          every tactic that Cali said was used in that particular defense did NOT put the blame on the victim.

          other than the "tampons cause abrasions" garbage.  which every woman knows is garbage, and i would hope there is always at least one woman on a jury that can quickly explain that to the men.  once she stops laughing.

    •  would you tell that to every black kid? (1+ / 0-)
      Recommended by:
      Maggiemad

      It's been the justification for may a charge

    •  The only reason that rape was briefly (2+ / 0-)
      Recommended by:
      reasonshouldrule, Maggiemad

      made unacceptable, but now we've regressed is simple.
      It seems that angry fathers and brothers murdered the rapist, rather than permit their wives and daughters be victimized by the courts.
      So, the laws became stricter.
      Now, we're sliding back into the "boys will be boys" mindset, animalizing our male populace.
      Rather than demanding civilization and mature behavior, some wish to have males considered incapable of restraining their impulses.
      Perhaps I shouldn't restrain my impulses and throttle then next (#& that suggests such nonsense.

      •  hmm (1+ / 0-)
        Recommended by:
        dasher3

        can you give some particulars of this rash of "revenge killings for rape so their dainty women don't have to be victimized by the court process"??

        a few names, dates, places?  actually, it would have to be more than a "few" if it caused the laws to be changed.  actually, WHEN were these laws changed, and WHICH laws specifically were changed?

        and you are implying, if i'm reading this correctly, that the "fear" for men...at some point in our history...was that if they raped a woman, her relatives may come after him and kill him.  is that right? (you're not referring to the latter half of the 19th century in the W.Virginia/Kentucky area, i hope.)

        i'm thinking that the "fear" Richard was talking about was that boys should be raised with the understanding that if they rape someone, they may be prosecuted for it.  and, perhaps, also that they should understand that if rape culture isn't changed (and in which change they can play an active role), they may be seen as a rapist whether they've committed a rape or not.

        as for this -- "we're...animalizing our male populace" that's true.  that's a part of rape culture.

    •  Sex with a 15-year old girl is statutory rape if (0+ / 0-)

      nothing else.  Her parents should be either pressing charges or suing his parents.

  •  Tipped & reced nt (11+ / 0-)

    I voted Tuesday, May 6, 2014 because it is my right, my responsibility and because my parents moved from Alabama to Ohio to vote. Unfortunately, the republicons want to turn Ohio into Alabama.

    by a2nite on Fri Aug 15, 2014 at 06:44:48 AM PDT

  •  You are wrong (15+ / 0-)

    A defendant is entitled to a defense, even if he allegedly raped someone.  This is after all an offense that can and should land this man in jail for many years if guilty.

    The article goes on to say that the girl had had five shots of vodka, that she doesn't remember parts of the event, and that there is some suspicion that she was drugged by her 23-year old rapist.
    This question might outrage you, but if there is much she can't remember, her testimony might be untrustworthy.
    It doesn't matter if she ran around the party with her breasts exposed or if she didn't.

    It doesn't matter if she was found in bed naked with a boy or whether she wasn't.

    It doesn't matter how much alcohol she drank.

    This isn't a "she deserved it defense", but likely a "she consented defense", and these sort of things might speak to it.

    I don't know the facts of the case, but no court just takes the accusers word without serious cross examining.  

      •  I'm not making an excuse (11+ / 0-)

        but there is a difference between statutory rape and aggravated sexual assault as far as the criminal justice system is concerned.

        If he is charged with statutory rape, none of this matters.

          •  If she says she can't remember anything (8+ / 0-)

            Her testimony might be unreliable.  Then again it might not be; that is for a jury to decide and for a defense lawyer to question.

            To say the defense lawyer doesn't have to right to question an alleged rape victims testimony goes against every fabric of our justice system.

          •  Richard Lyon - Besides the issue of consent, (10+ / 0-)

            there are degrees of rape. In Florida, eg, the difference amounts to 15 years of a man's life.
              EVERY defendant in any criminal trial is entitled to a complete defense. We can't just take the accuser's word for what happened, particularly in a case in which the accuser's consciousness was obtunded.
              You don't like questioning the victim?
              How do you like these cases in which a guy is released after spending 20 years in jail before DNA testing proves he wasn't the rapist?  

            •  We have previously modified laws (13+ / 0-)

              to limit the parameters of what is considered a legitimate defense in rape cases. Rape shield laws prohibit questioning victims about their past sexual history. That used to be standard defense tactics. Just because something is routinely done does not mean that it should be done and that it cannot be changed by law.

              •  There are two different issues here. (12+ / 0-)

                The victim was questioned about her past history -- other boys she was with or if she was running around naked. That is wrong. We shouldn't allow that testimony.

                She was also questioned about how much alcohol she had. This is very important.

                After 5 shots of vodka, she may have identified the wrong guy. If the defendant claims he wasn't even there, this is a possible defense for him.

                Or, if we have evidence linking Cooper to the victim, the 5 shots means that she could not consent -- which means Cooper deserves a harsher sentence.

                Some questions should be allowed.

                Some should not.

                It is not an all-or-nothing issue. I think the judge in this case was caught napping and allowed some stuff in that is none of the jury's business. But not all of it.

                •  Well said. n/t (1+ / 0-)
                  Recommended by:
                  memiller
                •  Re (2+ / 0-)
                  Recommended by:
                  hmi, dallasdunlap

                  You don't think her conduct at the very party in question is fair game for defense questioning?

                  (-5.50,-6.67): Left Libertarian
                  Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                  by Sparhawk on Fri Aug 15, 2014 at 09:01:17 AM PDT

                  [ Parent ]

                  •  Only some conduct. (3+ / 0-)
                    Recommended by:
                    4mygirls, Lonely Texan, RemainCalm

                    Even if she stripped naked and propositioned 100 other guys, if she didn't say "yes" to the defendant, then it doesn't matter. He's guilty. This is aside from the fact that she's underage.

                    Her consumption of alcohol is relevant because it may cause her to give confused testimony, or she may have been unable to consent.

                    But people have a right to get wild at parties. People are allowed to wear sexy clothes, or even no clothes. Once we try to punish fun we turn into Puritans.

                    •  If she stripped naked and propositioned 100 other (2+ / 0-)
                      Recommended by:
                      Sparhawk, merrywidow

                      guys, that would certainly create reasonable doubt that the sex was non-consensual. You folks apparently don't like that whole innocent till proven guilty thing and want to dispense with the right to trial.

                      •  this falls into the line of "reasoning" (0+ / 0-)

                        that once a woman "starts" something with a person, she no longer has a right to say "no" or stop it.

                        of course, the "start" of something changes depending on who you talk to.
                        if she Seemed To Be Enjoying Herself during a "make out session," then she Agreed To Have Sex, no matter what.
                        if she Took Her Top Off, then she Agreed To Have Sex, no matter what.
                        if she Kissed the other person, then she Agreed To Have Sex, no matter what.

                        heck, it used to be more like....if she Went Out To Dinner And Didn't Go Dutch, then she Agreed To Have Sex, no matter what.

                        that's basically what you're saying.  if she did X or Y at any point during the previous....how far out should we set the time limit, hmm?  oh, let's say...12 hours, then it should be obvious to everyone that by doing so, she Agreed To Have Sex With Whoever Later Decided to, you know, take her up on that consent.

                        •  Sorry, but you are missing it. (0+ / 0-)

                          From most of the viewpoints here, her testimony should not be questioned at all. She says he did it, so he must have done it.?????

                          Where is the room to find out is she is lying? What other evidence is there? You cannot just wreck a guys life without giving him a chance at a defense. Everyday we have convicted sex offenders being released due to DNA evidence showing it was someone else. Some have done 20 years on a false conviction! Where is the justice in that?

                          As a father with a daughter I can sympathize but the facts have to be found out somehow and the accused is entitled to the jury hearing ALL OF THE FACTS, not just one side. Otherwise we could  just skip the trial and hang them high!

                          A 15 year old with five to seven and a half ounces of vodka in her is not a reliable witness to start with! All I can say is that the prosecutor seems to be pushing for more than the facts appear to be. Without another witness to the crime, the case is weak.

                  •  generally speaking yes although (0+ / 0-)

                    if the accused saw or knew of none of that conduct then it ceases to be relevant in this case IMO.

                  •  Her conduct is not "fair game" (3+ / 0-)
                    Recommended by:
                    Cali Scribe, peregrine kate, AR2

                    Violation of an arbitrary drinking age law does not minimize the crime of rape.

                    No means NO, even if the answer was “Yes” a few minutes back.

                    If a person is asleep or drunk or otherwise unable to control decision-making, THE ANSWER IS ALWAYS NO.

                    Drunk does not equal "permission to rape me."

                    The number of a person's previous sexual partners, no matter how many, does not void that person’s right to not be sexually assaulted.

                    Remember that even if she flirted with you all night long, and even let you touch her boobies and genitals, and had sex with lots of other people in the past, you still may not rape her.  

                    •  Re (1+ / 0-)
                      Recommended by:
                      scotths
                      Remember that even if she flirted with you all night long, and even let you touch her boobies and genitals, and had sex with lots of other people in the past, you still may not rape her.  
                      Agreed, but when you ask a third party who wasn't there to send a person away to prison for several years, the victim having done those sorts of things gives serious pause. One party is going to say "it was consensual". The other is going to say "it wasn't". You're the jury. A person is going to be imprisoned for years based on your say-so. What do you do?

                      (-5.50,-6.67): Left Libertarian
                      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                      by Sparhawk on Fri Aug 15, 2014 at 03:15:33 PM PDT

                      [ Parent ]

                      •  yep (0+ / 0-)

                        and this:

                        "when you ask a third party who wasn't there to send a person away to prison for several years, the victim having done those sorts of things gives serious pause"

                        is what needs to be changed.  this is a part of "rape culture."

                        what needs to change is that as soon as a person or jury hears something like, "the victim was very drunk" or "the victim was unconscious" that people automatically think, "well, no one should have sex with a person in that state," rather than, "oh.  well i guess we should look at what might have happened earlier to know if that person wanted to have sex."

                •  My point was that what is presently considered (1+ / 0-)
                  Recommended by:
                  Lonely Texan

                  standard defense procedure is set in stone. The law is subject to change. This is an aspect that could do with some serious legal review. People have been making the claim that it is all absolutely necessary and unavoidable.  

                •  Wait. (0+ / 0-)

                  They were at a party. There should be witnesses who know who she was with.

                  •  true (0+ / 0-)

                    many people seem to know who she spent 1-2 hours with in the front yard.  so that part of her "memory" could be corroborated.

                    but then the defense lawyer, or certain posters here, would immediately try to argue that if her memory is faulty, she might not remember WHEN she had sex, so it might have been earlier or later and then it might not have been with THAT 'man' and, oh yes, the bruising and injuries might have been from someone else too.

      •  Exactly. Thanks. nt (0+ / 0-)

        "Come, come, whoever you are. Wanderer, worshiper, lover of leaving. It doesn't matter. Ours is not a caravan of despair. Come, even if you have broken your vows a thousand times. Come, yet again, come, come." --Rumi

        by karmsy on Fri Aug 15, 2014 at 07:10:41 AM PDT

        [ Parent ]

    •  Thank you for completely missing the point (13+ / 0-)

      Not to mention a dash of slut-shaming.  Nice job!

      NOT.

      This isn't freedom. This is fear - Captain America

      by Ellid on Fri Aug 15, 2014 at 06:52:32 AM PDT

      [ Parent ]

    •  She remembers the part where he raped her n/t (12+ / 0-)

      "Back off, man. I'm a scientist."
      -- Dr. Peter Venkman


      Join me, LOLGOP, Anne Savage, Amy Lynn Smith, & Emma White at Eclectablog.

      by Eclectablog on Fri Aug 15, 2014 at 06:57:50 AM PDT

      [ Parent ]

    •  Sigh. nt (0+ / 0-)

      "Come, come, whoever you are. Wanderer, worshiper, lover of leaving. It doesn't matter. Ours is not a caravan of despair. Come, even if you have broken your vows a thousand times. Come, yet again, come, come." --Rumi

      by karmsy on Fri Aug 15, 2014 at 07:10:15 AM PDT

      [ Parent ]

    •  I sat in court and watched as someone quite (8+ / 0-)

      close to me was questioned about her rape. A rape victim is a witness in court. She was asked heinous questions, and handled them magnificently, though only twenty-two at the time. (The defendants were ultimately given three life sentences.) A defense attorney has the duty and right to ask anything within reason, and often attempt to sway a jury through such questions. The defense attorney is doing his or her job; to do otherwise could open him or her up to a lawsuit by their client. It is the judge's and the prosecutor's responsibility to object or quash unreasonable questions or comments. Unfortunately, rape victims are subjected to such in a trial. I have also known a few women and girls who did not press charges as they were afraid of going to court. My loved one above showed such courage and bravery - and wit! She actually had the jury laughing at one point. I wish that person was still here; it took almost the last of her strength getting through that. She is almost completely broken, for decades.

      Eclectablog has a right to her outrage, but the defense attorney has the right and duty to use any means possible and requested, to keep a client out of jail. The issue here is not how the victim is treated in court; it is how the girl became a victim.

      "You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty." Mohandas Gandhi

      by cv lurking gf on Fri Aug 15, 2014 at 07:17:37 AM PDT

      [ Parent ]

      •  Eclectablog is male. (13+ / 0-)

        The victim in question was 15 at the time, and the accused perpetrator 23.  Whether he is also accused of sexual assault, what he did (and there wouldn't be any trial if she weren't quite clear on who did it) is rape, beyond any shadow of a doubt.

        Strength and dignity are her clothing, she rejoices at the days to come; She opens her mouth with wisdom, and the law of kindness is on her tongue.

        by loggersbrat on Fri Aug 15, 2014 at 07:46:01 AM PDT

        [ Parent ]

        •  assuming the age of consent (0+ / 0-)

          is higher than 15 in that state, yes, he is guilty of statutory rape, of course, no one is disputing that remotely.

          •  Age of consent is 16 in Michigan... (2+ / 0-)
            Recommended by:
            surelyujest, howabout

            ... if the defendant is less than 5 years older than the victim.

            "Back off, man. I'm a scientist."
            -- Dr. Peter Venkman


            Join me, LOLGOP, Anne Savage, Amy Lynn Smith, & Emma White at Eclectablog.

            by Eclectablog on Fri Aug 15, 2014 at 09:48:53 AM PDT

            [ Parent ]

            •  Correction (4+ / 0-)

              A child under 16 years of age is unable to consent to sexual intercourse in Michigan. 4th degree criminal sexual conduct is defined as "engaging in sexual contact with someone at least 13 years of age and less than 16 years of age where the defendant is at least 5 years older than the victim."

              However, sexual contact with a child at least 13 years of age and less than 16 years of age is still illegal if the defendant is less than 5 years older than the victim.

              "Back off, man. I'm a scientist."
              -- Dr. Peter Venkman


              Join me, LOLGOP, Anne Savage, Amy Lynn Smith, & Emma White at Eclectablog.

              by Eclectablog on Fri Aug 15, 2014 at 09:52:34 AM PDT

              [ Parent ]

              •  of course (0+ / 0-)

                if the accused had a reasonable, but mistaken belief that she was 16, then its not a crime.

                •  you keep saying this (0+ / 0-)

                  but it seems silly.  take this scenario:

                  --a person goes into a convenience store with a gun, points it at the clerk, and demands all the money in the till

                  --the clerk opens the drawer, hands over $122, and says, "that's all there is.  i swear!" even though there is well over $1000 dollars still in the till

                  --the person takes the $122 and leaves the store and is arrested a few blocks away

                  you're saying that the prosecutor would charge the suspect with petty theft, rather than grand theft?  really, i don't know.  

                  and really, you're going down a slippery slope, it seems, with intent (did he INTEND to have sex, and, if so, did it matter to him with whom and how?) and consequences (whether she was 15 or 16, she is claiming to have not consented to sex and to have been raped, and thus a consequence of both his actions and his recklessness [he deliberately closed his mind to the possibility that she was underage] is that she is a victim), and would it be reasonable to assume that a person must be a certain age just because they claim it.

                  •  you may think it seems silly (0+ / 0-)

                    but it's beyond settled law.

                    I am not sure the intent of your hypo, did he take 122 or did he take 1000?  The thief is going to be charged with what he took, not what he could have taken. If you still a single dollar from a bank vault you aren't going to be charged with stealing the entire contents of the vault.

                    A better analogy would be that the accused had a reason to believe that he was being given the money, freely. That belief would have to be reasonable to an objective person, so it would require more than just a subjective belief. It may turn out that in fact he was never intended to be given the money, but his mens rea i.e. criminal intent, matters.  It matters in all crimes.

                    In this case assume the following:

                    1. She looks of age
                    2. She proclaims she is of age
                    3. She acts of age
                    4. The accused has no evidence or reason to believe she is not of age

                    Those things might be enough in and of themselves to generate a reasonable mistake of fact. Dont know if they happened here, but that's a scenario where if we believe the accused did not act with criminal intent (i.e. he truly and reasonably believed that he was having consensual sex with someone who was of age to consent (and not so intoxicated that they can't consent) then what is the point of punishing him if one of those things turn out to be wrong?

                    He acted with no ill will, and objectively he had good reason to believe what he was doing was not wrong. the alternative is to make the crime strict liability. Doesn't matter what she says, how she acts, even if she provides a fake license/ID, she was 15 so you are a sex offender.

                    That would be "silly."  

                    I have no idea if any of that happened here, and again, remember, mistake of fact is a defense that has to be reasonably raised by the evidence. You can't just get up and say, I thought she was 16, with nothing else.

            •  Yes (4+ / 0-)
              Recommended by:
              hmi, Sparhawk, dallasdunlap, fenway49

              but that is specifically defined as a lesser crime in that situation, by statute, in Michigan.  The defense lawyer is bringing this line of questioning in hopes that his or her client will not be convicted of the forcible rape charge because the age-based rape charge carriers a lighter (probably much lighter) sentence. So everyone saying that this line of questioning is irrelevant to the statutory rape charge is correct, but they are missing the bigger picture that it is relevant to the forcible rape charge.

    •  His right of defense should be restricted to (4+ / 0-)
      Recommended by:
      4mygirls, susans, catwho, Lonely Texan

      whether he actually raped her or not.  You are correct to suggest that the defense has the right to question whether the girl consented or not.  I get that statutory rape is different from forcible rape in the eyes of the law, so I won't address my disagreement with that issue.  I do agree with others that if she was drunk or passed out, she is unable to give consent, and splitting hairs over statutory or forcible rape becomes irrelevant.  

      Regardless, her behavior in regards to other people at the party is irrelevant to that defense. The only reason to bring it up is to color the opinions of the judge or jury adjudicating the trail, and is consistent with the author's assertions. The defense is trying to convince them that she deserved to be raped.  You can run around naked all you want, it doesn't mean you are untrustworthy or lying about the rape committed.  Nudity is not sufficient evidence for consent.  Saying yes or no is.

      The only thing we have to fear is fear itself - FDR. Obama Nation. -6.13 -6.15

      by ecostar on Fri Aug 15, 2014 at 09:02:15 AM PDT

      [ Parent ]

      •  drunk sex is not a crime (2+ / 0-)
        Recommended by:
        Sparhawk, dallasdunlap

        almost anywhere. Incapacitation by alcohol sex is a crime. There's a difference between the two. Now, odds are, you have 5 shots of vodka as a 15 year old you are probably pretty wasted.

        then again, some young people today start drinking early and often. How long of a period did she have those drinks? What's her tolerance level? How did others at the party perceive her as? Buzzed? Wasted? Managing?

        Add together walking through what she was doing, whether she was so drunk that she misidentified her assailant, etc and you have plenty of reasons to get into these areas.

      •  It seems to me... (0+ / 0-)

        from what little I can glean from the article that the defense is trying to pin the rape on the other person she was supposedly with and then use the intoxication line of questioning to support the position that she didn't know who it was.  Interestingly, there was no discussion of any DNA evidence in the article, and that would be highly relevant to the case.  I wonder if they weren't able to get a usable DNA sample or something.

    •  Fuck you. (10+ / 1-)
      It doesn't matter if she ran around the party with her breasts exposed or if she didn't.

      It doesn't matter if she was found in bed naked with a boy or whether she wasn't.

      It doesn't matter how much alcohol she drank.

      This isn't a "she deserved it defense", but likely a "she consented defense", and these sort of things might speak to it.
      #1 - SHE CAN'T CONSENT, SHE'S A CHILD.

      #2 - NONE OF THAT STUFF GIVES CONSENT.  If I walk around in a corset top that shows cleavage, or yes even topless at a private party that DOES NOT MEAN I CONSENT TO SEX    

      Get it through your fucking thick head.  Women and girls aren't your or anyone's property and sex is ONLY consented to when she is of age and clearly says YES.  

      And people say there's no rape culture.  Fuck.

      Miss Aji? She blogs here now.
      I’m a feminist because the message is still "don’t get raped" not "don’t rape."

      by Avilyn on Fri Aug 15, 2014 at 09:52:29 AM PDT

      [ Parent ]

      •  Mmmm. (1+ / 0-)
        Recommended by:
        Lonely Texan

        Such a lovely little bit of detached legalistic finger-wagging in the comments above, isn't there.  All of which conveniently sidesteps the issue that a 15 year old girl is saying she was raped, and the vast majority of such accusations are true.

        I honestly thought DKOS was beyond the sheer volume of it as evidenced above, though.  It's beyond disappointing, but I can't confront it directly just now.

      •  You are absolutely correct-- (0+ / 0-)

        If he was only charged with statutory rape but he was not!

        The prosecutor seems to have tried to go above and beyond that charge and furthermore you have no evidence that a rape actually happened! No DNA, no third party witness to the event -- just a he said/she said claim that it happened or not. Sorry but her condition goes to the validity of her testimony! And even if they had sex and he admits it, that is only statutory rape and the prosecutor should have stopped there! Trying to add the forcible rape charge changed everything, and make the case MUCH HARDER to prove.

    •  The circumstances look very bad, and the girl (0+ / 0-)

      is an idiot.

      "The poor can never be made to suffer enough." Jimmy Breslin

      by merrywidow on Fri Aug 15, 2014 at 12:11:56 PM PDT

      [ Parent ]

      •  I did a lot of stupid shit (1+ / 0-)
        Recommended by:
        peregrine kate

        when I was 15 (hell, still do a lot of stupid shit at 55); that's why it's up to adults like this guy (well, maybe alleged adult in this case) to know when not to cross the line.

        There's only one rule that I know of, babies -- goddammit, you've got to be kind. -- Kurt Vonnegut

        by Cali Scribe on Fri Aug 15, 2014 at 02:58:47 PM PDT

        [ Parent ]

  •  Horrible. Tragic. I hope to god one good thing (4+ / 0-)
    Recommended by:
    karmsy, 4Freedom, wader, catwho

    comes of all this rape-denial: that some "conservatives" wake up and leave that twisted ideology, which rationalizes and supports so much despicable, heinous behavior so destructive to so many individuals and society as a whole.

    Maybe some of that is happening? We can only hope.

    I've never left a blank space on a ballot... but I will not vote for someone [who vows] to spy on me. I will not do it. - dclawyer06

    Trust, but verify. - Reagan
    Vote, but Occupy. - commonmass

    by Words In Action on Fri Aug 15, 2014 at 06:53:54 AM PDT

  •  This line of defense is not just slut shaming. (37+ / 0-)

    It tacitly implies that raping someone is a normal, natural male reaction to being aroused.  
    I do not believe that about men, just as I don't believe all adults  want to sexually abuse a child. Pedophiles see an opportunity when they are alone with a child who trusts them.  Rapists think in the same predatory way.  This is probably not the first girl this rapist attacked.  Notice how he got her away from her friends.  He picked her out as his victim.  He planned this.

    "YOPP!" --Horton Hears a Who

    by Reepicheep on Fri Aug 15, 2014 at 06:54:48 AM PDT

  •  Its almost as if people here are saying (6+ / 0-)

    that rape is such a horrible crime that we need to suspend the rights that an alleged  perpetrator has to defend himself.  The fact that it IS such a horrible crime deserving a long jail term is exactly the reason the defendant has the right not mount a vigorous defense.

  •  Why is their brand of authoritarianism so eager (8+ / 0-)

    to viciously attack the most vulnerable among us, like some feral dog pack always fighting to rearrange the pecking order in favor of the white male dogs?

    When do we get to be a post-racial, post-sexist, post-bigotry-in-general society? Ever? Is it genetically, biologically, chemically per-ordained that we must have a segment of this mentality in our midst. Do we need another millennium or more to evolve and outgrow this unnecessary, immoral, destructive mode of thought and behavior? Do we have that kind of time given the rapid increase of the ability of individuals to reek mass destruction, and the demands of so many to have the "liberty" to use it?

    It is distressing to consider these questions, given what we already now know.

    I've never left a blank space on a ballot... but I will not vote for someone [who vows] to spy on me. I will not do it. - dclawyer06

    Trust, but verify. - Reagan
    Vote, but Occupy. - commonmass

    by Words In Action on Fri Aug 15, 2014 at 07:02:15 AM PDT

  •  Thanks for standing up and shouting. (19+ / 0-)

    I am tired of discussions of rape being poisoned by moralistic trolls who insist that the victim "brought it on herself" because she was at the wrong party or wearing the wrong thing or whatever. These people really believe in speaking for others, whereof they are totally ignorant, as anyone who man-splains, white-splains, straight-splains, rich-splains.

    No. For once, your place is only to listen.

    "Come, come, whoever you are. Wanderer, worshiper, lover of leaving. It doesn't matter. Ours is not a caravan of despair. Come, even if you have broken your vows a thousand times. Come, yet again, come, come." --Rumi

    by karmsy on Fri Aug 15, 2014 at 07:08:51 AM PDT

  •  Maybe this was just a rant against the unjustice (2+ / 0-)
    Recommended by:
    ManhattanMan, Sparhawk

    of rape and the victims.  If so, I'm with you, and the victims don't deserve these types of questions, BUT in our system, a defendant has a right to a vigorous defense.  They have the right to question the credibility of the accusers testimony.  It seemed to me that the OP suggests the suspension of these rights.  Maybe I am missing something, but that is where I am looking at it from.  I would say the same thing with any crime.

    If I am wrong about the OP, would the original author mind explaining to me exactly what rights you think a rape defendant does have in defending themselves?  And would you be willing to make that true with other crimes?

    •  No one is suggesting that the defendant doesn't (6+ / 0-)

      deserve a vigorous defense. Of course he does. So maybe you did miss the point a bit. The objection is to the parameters of the questions asked of the victim. The questions should concern whether or not she consented to him.

      Oh for crying out loud!

      by 4mygirls on Fri Aug 15, 2014 at 08:09:24 AM PDT

      [ Parent ]

      •  That is where... (3+ / 0-)
        Recommended by:
        4mygirls, susans, catwho

        ...the alcohol comes in.

        If she had five shots, she couldn't consent.

        •  over what period of time (1+ / 0-)
          Recommended by:
          Sparhawk

          did she have those shots? What size were the shots? What's her tolerance level?

          No, it is not per se true that five shots equates to can't consent.

          •  kinda wanting it both ways, aren't you? (0+ / 0-)

            i've seen posts that those "5 shots" made her so damn drunk that she 1) couldn't possibly identify the right man, and 2) couldn't possibly have any reliable memories of that night, hence her testimony can't be considered reliable.

            yet now, we have a post that says those "5 shots" couldn't possibly have made her so damn drunk that she couldn't consent.

            which is it?  was she "so damn drunk" or was she "so damn drunk"?

            •  the "beauty" of being a defense attorney (0+ / 0-)

              is that yes you get to make multiple arguments for a single piece of evidence so:

              1. Yes, the argument could be she wasn't too drunk to consent

              while simultaneously, if she were too drunk,

              2. She was unable to properly identify who had sex with her

              Having said that, I wasn't the one that made the second argument, nor was I answering that in my post, I was answering the idea that five shots per se equals too drunk to consent. It does not, and it depends on a host of factors.

              Obviously, a successful defense is going to lean towards one or the other depending on the evidence of intoxication put forward at trial. Using both would probably only happen when it's on the line between too drunk and not, and an attorney thinks the jury could go either way on it.

    •  Nobody... (3+ / 0-)
      Recommended by:
      Bradana, sethtriggs, burlydee

      ...should have to explain their past sexual history. That's just wrong.

      Now if you are recounting events and you had five shots of vodka at the time, that is significant. Testimony about drinking should be allowed. If the victim has a hazy memory, she could be accusing the wrong guy.

      But this attorney went into things the victim did with other people at other times. That is what should not be admissible.

  •  Oh for the days when young women always (1+ / 0-)
    Recommended by:
    liberaldregs

    had a chaperone and young men were raised to protect the honor of women.......  

    Gravitation cannot be held responsible for people falling in love. - Einstein

    by moose67 on Fri Aug 15, 2014 at 07:32:10 AM PDT

  •  There is nothing sleazy about a vigorous defense (12+ / 0-)

    First, just as an aside, there was no jury.  This was a preliminary hearing to determine whether sufficient evidence existed to hold the defendant over for trial.

    Second, our Constitution demands that every defendant has the right to a zealous defense.  No ifs, and, or buts.  If a judge were to try to hold in contempt a defense attorney for those questions, they would not be a judge for long.  Think about it, the juvenile already said she has an inability to remember everything that happened.  That likely would be caused by the amount of alcohol she drank.  She states in the article that she thought she was gone for an hour, but her friends told her it was two.  The accuracy of her rendition of events then gets put into doubt, which is entirely the job of the defense attorney to do.  Why should a judge hold an attorney in contempt for doing that?

    Also, if she was found in bed with another boy, might that not also be the cause of the injuries?  If she has trouble remembering, then maybe she has wrong who did what to her that night.  Again, this is the job of the defense attorney.

    I am not saying that is what happened, because I don't know what happened, I wasn't there.  However, the questions the defense attorney was asking were in line with his constitutional duty to zealously represent his client, and to build a defense at trial.  To remove or restrict the ability of defense attorney to bring up a vigorous defense would put into danger our entire justice system.  I don't think that would be a good thing, and I would hope no one else would want that as well.

    •  Here's the problem (3+ / 0-)
      Recommended by:
      ManhattanMan, sethtriggs, catwho

      In many states, a rape victim's prior sexual history and other irrelevancies (e.g., was she dressed "provocatively" or did she act "slutty") are inadmissible as a defense.  I'm not sure what most states do about testimony about how drunk the victim was.

      And if I were the defense attorney, testimony about how my client's alleged victim got five vodka shots in her might not be exactly exculpatory.  Intentionally getting someone drunk and having sex while she's passed out is rape under the laws of most civilized jurisdictions.

      Oh, yes.  If I understand, he was 21 and she was 15.  At least in NJ, if one of the partners was under 18 and there is more than a four year age difference, it is statutory rape.

      •  That's because prior sexual history (1+ / 0-)
        Recommended by:
        Sparhawk

        generally has no importance to a present claim of rape.

        However, if someone else raped her, or even had rough consensual sex with her earlier that night, that certainly is relevant as to where and when she may have obtained the bruising.

        Surely if someone else is also at fault, the earlier guy shouldn't get a pass because a 23 year old raped her later that night.

      •  According to the article (5+ / 0-)
        Recommended by:
        Sparhawk, DFWmom, lina, dhonig, joeschmeaux

        The juvenile said she had drank 5 shots of vodka.  There is nothing stating that the defendant was the one who gave them to her.  It is very relevant how much she had to drink, because it directly affects her ability to remember.  Clearly, her memory is in doubt at this point because she admits to gaps.  If her friends found her in bed with another guy, and she doesn't remember it, that would certainly be an avenue of attack for the defense attorney.  Not only is it ethically permissible, the attorney would be derelict in his duties not to bring it up at trial.

        Nothing in the rape shield laws that I am aware of would prohibit any of the line of questioning that this attorney used, and I would doubt the constitutionality of any that did, since it restricts the right to present a defense that is perfectly valid (ie she can't remember what happened that night, and her actions  show that.)

  •  Where were the adults? (2+ / 0-)
    Recommended by:
    sethtriggs, Carol in San Antonio

    Whose property did this occur on?   Were the owners aware that a party was taking place?   Were they present and supervising?   Were they aware that alcohol was being provided to the guests? Were they aware that minors were attending? Who obtained the alcohol?    Who served the alcohol?  

    Did the child's parents know where she was?   Did they know that alcohol was being served?    Did they know whether the party was supervised?   If it was purportedly supervised, who were those persons who were supposed to be supervising, and where were they when this event occurred?

    Did the child have a prior history of drinking alcohol or other inappropriate behavior?   Had her parents taken any action regarding any problem behavior?   Were the child's parents present when alcohol was served to her?    Did anyone ever try to watch over this kid and keep her safe?

    The rape culture DOES exist.   We should work towards changing that.  But, in the meantime, we need to ask some tough questions when things like this happen, about where the adults were and whether they exercised due diligence.  When I see a fifteen year old girl who has been allowed to walk into such a dangerous situation, I also see multiple adults who let it happen.  

    I see a trial where it's child versus bad guy, but I always wonder about the other participants, the adults who are conspicuously absent from the national discussion.

    Not only was this child raped, she could have died in several different ways from alcohol intoxication, from simply stopping breathing, to choking on her own vomit.   Or, she could have died from drowning, as she was debilitated to the point of having memory lapses, and she was swimming and had been thrown into a pool at one point in the evening.    

    The odds were stacked against this poor kid when she walked through the door to this "party".  She was in over her head figuratively, and almost ended up there, literally.   Where were the adults who were supposed to keep the odds stacked in her favor?

  •  Why not focus on the age difference? (9+ / 0-)

    I hope and assume 21 vs. 15 is statutory rape whether she consented or not.  I also think the law should assume that if the victim is intoxicated it is rape because she was not really in a position to give true consent, possibly could not physically say no if her condition were severe enough, and may not have known what was happening at the time.  Finally I have long thought that the absence of an explicit yes should be interpreted as no rather than the absence of an explicit no interpreted as yes.

  •  Statutory rape is statutory rape (1+ / 0-)
    Recommended by:
    Lily O Lady

    I'm assuming that will be included in the charge, making all the rest of this irrelevant.

    If for whatever reason they charge aggravated rape rather than statutory, then that complicates things a bit more, and how much of this garbage can get in will depend on the laws of Michigan.

    Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

    by Pi Li on Fri Aug 15, 2014 at 08:07:44 AM PDT

    •  no (0+ / 0-)

      statutory rape (over a certain age, usually 12) still allows for a mistake of fact, I thought she was legal defense.

      It is not a strict liability crime. Usually, for children under 12 it is a strict liability crime which makes sense as the vast majority of 12 year olds are not going to be reasonably mistaken for being of age.

      •  Hmmm (0+ / 0-)

        I'm not sure what the law in Michigan is, but in many states statutory rape is in fact a SL offence.

        But in any event, the "mistake of fact" would be with regards to the the victim's age, and whether the D thought she was of age, not the other extraneous facts reported in the diary (how much she drank, etc.)

        In other words, if the D knew she was under 16 at the time of the rape, it's statutory rape, the rest of these facts would not matter. If he's charged with statutory rape, he'd have to assert the mistake of fact in his defence. That's why I said, if also, or alternatively, he's charged with aggravated rape, then the alcohol and other factors might come in, depending on the laws in Michigan.

        Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

        by Pi Li on Fri Aug 15, 2014 at 03:09:25 PM PDT

        [ Parent ]

        •  no it isnt (0+ / 0-)

          strict liability means no defense at all, you do the act you are guilty. It's rarely applied in criminal law, it's usually a civil law thing. One of the rare areas in criminal law it is applied is sex with a prepubescent child (often under the age of 12) because the vast vast majority of children that age can't be mistaken for being of age.

          And, again, the other facts matter.

          Statutory rape is not the only offense he is facing. Statutory rape has very minor punishment compared to agg sex assault or rape of an unwilling minor. If the argument were simply, she was under 16, this trial would be only about one thing, whether or not he reasonably believed she was 16 or over.

          Obviously, that's not the only thing here since there is testimony about bruising and alcohol use, the government is attempting to prove non-consent/forcible rape, not merely statutory rape. Thus, all those things become relevant.

          •  Well (0+ / 0-)

            Yes, I understand what strict liability is (I am an attorney) and understand the distinction between statutory rape and aggravated rape (I was a prosecutor). And yes, in the majority of states statutory rape is strict liability offence (yes, usually for very young children). That's why I tried, I thought, to explain when the external factors surrounding her rape (e.g. the alcohol) might be admissible in (the case of aggravated rape) in some states, when they would not necessarily be relevant (statutory rape), and when a so-called "mistake of fact" might come into play.

            And as an aside, statutory rape does not necessarily result in "very minor punishment."

            Thanks.

            Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

            by Pi Li on Fri Aug 15, 2014 at 05:16:45 PM PDT

            [ Parent ]

            •  one would think an attorney of all people (0+ / 0-)

              then wouldn't use the term strict liability as you are using it. As an attorney you should know that if there is a possible defense then guess what, it is not a strict liability crime.

              In the majority of states, I'd wager actually in all of them, sex with a 15 year old is NOT a strict liability crime because mistake of fact as to age is an allowed defense, but please point me to the state(s) where this isn't true.

              So no, you don't appear to understand what strict liability is.  If you have a mistake of fact defense, and I'd be pretty surprised if that defense does not apply in every state in the union for 15 year olds, then it's not strict liability.

              Furthermore, I said "Statutory rape has very minor punishment compared to agg sex assault or rape of an unwilling minor" not "statutory rape results in very minor punishment."  See the critical word there? It's compared.

              So, your aside is rather off. And yes, I'm an attorney too, and I've been prosecuting and defending sex assault cases for a wee bit of time as well.

  •  When my daughter was 15, she was at a party. (21+ / 0-)

    She should not have been there. She was drinking.

    She climbed into a bed of one of the house roommates because he was gone, and she knew he wouldn't care, and passed out. She awoke to a 35 year old man doing things to her. She lay in the dark, quietly, until he did what he was going to do, and he left. She waited until the next day to call me and ask for my help.

    We took her to the police station, and reported it. There were only male officers. I was skeptical.

    The officer asked her what happened. She told her story. He said: "I'm going to just take a second and remind you that at 15, you know you shouldn't have been drinking, right?"

    I braced for victim blaming/shaming. My daughter nodded her head and was ready to be marginalized.

    The officer then said: "Okay, now that we got that out of the way, this in no way excuses what happened to you. Drunk or not, no one has a right to do that to you. Give us some time, and we'll take care of this."

    Within an hour, they converged on the house, cut parts of the mattress for DNA evidence. Had a warrant for the perpetrator's arrest and the case was off and running.

    It took 5 months to capture him. He went on the run. He finally got caught after 2 armed robberies.

    They handled it without ever going to trial. He knew he was cooked, so he pleaded guilty. 10-20 years.

    I wish all situations were handled as well.

  •  The alcohol question is relevant (2+ / 0-)
    Recommended by:
    DFWmom, merrywidow

    because drinking alcohol in sufficient quantities impairs your ability to remember events.  This is particularly important without corroborating physical evidence that (a) there was sex (b) who engaged in sex (which are necessary showings for even statutory rape).  In such a case you are relying on the complaining witness's memory, making the accuracy of those memories relevant.

    However, bringing it up is a double-edged sword for the defense because it (should, in theory) vitiate any sort of consent-based defense.  And while consent is not a defense to Statutory Rape (obviously) it is a defense to any sort of forcible rape charge.

    •  I see (0+ / 0-)

      If the police department is doing its job, it will collect the rape kit and do the DNA tests.

      Since they presumably have to disclose the results of the forensics to the defense, the lawyer is presumably not going to raise that.  In this case, he has to establish consent.  It's not open and shut, but if she's got five shots in her and is already underage, I'd be surprised if there wasn't a case; I couldn't speak with five shots of vodka in me, let alone negotiate a sexual encounter.  And "she didn't explicitly say no because she was shitfaced out of her skull" is not the same as "Yes."

      •  That's right (0+ / 0-)
        It's not open and shut, but if she's got five shots in her and is already underage, I'd be surprised if there wasn't a case; I couldn't speak with five shots of vodka in me, let alone negotiate a sexual encounter.
        If the prosecution has no forensic evidence like semen and DNA to link to the defendant and the defendant is claiming he did not have sex with accuser, then the alcohol is relevant to the accuser's capacity to identify and remember her attacker.

        On the other hand, if the there is physical evidence of sex (like semen with defendant's DNA found inside the accuser) then you probably have a situation where the defendant can't beat the statutory rape charge, but might make a consent defense to a rape/forcible rape charge.  In that case though, intoxication would in theory vitiate the consent defense as the accuser would have been too drunk to consent.

        Or at least this is how it should work in theory, and why the question is relevant.  

        In practice, the alcohol issue could be a tactic to yell "look, drunken slut who wanted it, no rape here!"

  •  One clarification (2+ / 0-)
    Recommended by:
    4mygirls, lina

    As noted by others, there is statutory rape, and then there is forcible rape.  I would suggest statutory rape be called unlawful sexual intercourse with a minor.  Its a mouthful, but the difference makes sense.  An 18 year old who has consensual sex with a 17 year old is not a rapist, and calling them such diminishes greatly the validity and horror that is real rape.  

  •  A rape is a rape is a rape (4+ / 0-)

    A 23 year old having sex with a 15 year old is a rapist. He is taking advantage of a serious age difference to exploit someone who was intoxicated and young. The choice was his whether to have sex with her or not. In debating this academically, it is good to remember that.

    We may debate her consent or not, her previous experience or not.  Neither of those things negate the fact that this man chose to have sex with an intoxicated underage girl. Somehow this always gets lost in the shuffle of what was she wearing, was she on alcohol or drugs, who was she with, how did she end up alone with him.

    Statutory rape means that the burden to chose not to have sex is with the adult, not the child. Just because a man has an erection does not give him the right to sex with whatever convenient partner happens to be around.

    What seems clear in this case is that she was intoxicated and not able to think or remember clearly, yet he still had sex with her. The choice to have sex was his. No one forced him to. When you choose to be a rapist, funny thing is, that's what you are.

    •  I think you made my point for me (0+ / 0-)

      In this situation, as the facts are alleged, it is a rape.  But what if an 18 year old woman has sex with a 17 year old boy?  Is that rape then?  Is she a rapist? By your statement that 'a rape is a rape is a rape', she is a rapist if the age of consent is 18.  I don't think this is an appropriate use of the term "rape", and I doubt you do too.  Hence why I suggest the use of unlawful intercourse with a minor.  It reserves the term rape for when it really belongs, and removes the term from situations when two hormone driven teen-agers are having consensual sex.

      •  For two teenagers (4+ / 0-)

        there are Romeo and Juliet laws that protect teenagers within a certain age range from prosecution because we recognize that teenagers are gonna have sex.

        What I am talking about is much more damaging.  I have a friend who would talk about her first boyfriend when she was twelve. It wasn't until much later that I found out that this "boyfriend" had been 19 when she was twelve, that he was a youth pastor at her church and that her parents had encouraged her to spend time with him.  She had made a relationship that had started when she was 12 and became sexual when she was 14 into something more acceptable in her mind. But she still exhibited all the classic signs of sexual assault/abuse: promiscuity, drug use, dropping out of school, abusive boyfriends. It took her years to finally admit that what this man did to her was wrong.

        That is why I say a rape is a rape. Unlawful sexual intercourse with a minor seems a long winded and less charged way of describing it. When a person who is older automatically has a power of authority over a child or adolescent it is so easy for them to manipulate the younger person into a sexual situation that they are not prepared to handle.  That's why it is statutory rape and why those who do it (male or female) are rapists. I want them to know that what they did was unacceptable and I want anyone else who thinks "She may be young, but I'd hit that" to remember that.

        If you add in institutional sexism and the sexualization of young girls, you get a subset of men who think they have the right to fuck whichever girl they want. Women are constantly barraged with advice on how not to get raped.

        If you chose to have sex with someone who is drunk, drugged, high, or too young (that is unable to consent) it is rape and you are a rapist. It's long past time that we reinforce a message that it is not okay to rape.

    •  Ummmmm.... No (0+ / 0-)

      sorry, but wrong.

      A rape is anything from a misdemeanor to a first degree felony, at least in the State of Michigan. And the underlying facts make the difference between 2 years max sentence and life in prison.

      What is the difference? Among other things, not whether she was intoxicated, but whether he knew or should have know she was intoxicated.

      I quoted the statutes below. I wish people would read the law before sharing their opinions about it.

      Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

      by dhonig on Fri Aug 15, 2014 at 06:04:04 PM PDT

      [ Parent ]

  •  It would be wonderful if people educated themselve (5+ / 0-)

    before venting their outrage.

    750.520e Criminal sexual conduct in the fourth degree; misdemeanor.
    Sec. 520e.

    (1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if any of the following circumstances exist:

    (a) That other person is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person.

    (2) Criminal sexual conduct in the fourth degree is a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $500.00, or both.

    and
    750.520b Criminal sexual conduct in the first degree; circumstances; felony; consecutive terms.
    Sec. 520b.

    (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

    (b) That other person is at least 13 but less than 16 years of age and any of the following:

    (f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes, but is not limited to, any of the following circumstances:

    (i) When the actor overcomes the victim through the actual application of physical force or physical violence.

    (ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.

    (g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.

    (2) Criminal sexual conduct in the first degree is a felony punishable as follows:

    (a) Except as provided in subdivisions (b) and (c), by imprisonment for life or for any term of years.

    What does all that mean?

    It means the difference between a misdemeanor punishable by 2 years or a first degree felony punishable by life imprisonment is not based upon the victim's age or her intoxication. Being older than 13 but younger than 16 makes it, per se, at least a misdemeanor. To get to a first degree felony, there must be injury and force OR the Defendant must know or have reason to know the victim is "mentally incapable, mentally incapacitated, or physically helpless."

    If the prosecution is relying upon the victim to testify as to the Defendant's knowledge, her credibility and level of intoxication are relevant.

    Don't like it? Change the law.

    Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

    by dhonig on Fri Aug 15, 2014 at 10:10:05 AM PDT

  •  Asking for it? (7+ / 0-)

    When I was 43 I went to lunch with a client of mine.  He was trying to get additional information on a piece of commercial real estate. I was intimately familiar with the property.

    After lunch, he pulled into a parking place that was quite a distance from the building's entrance.

    He then grabbed me and tried to rape me. Fortunately, at the tender age of 43 I knew how to handle the situation and hurt him so badly that he couldn't stop me from leaving his car.

    When the police got to him, they had to call an ambulance; as I said, I really hurt the SOB.

    What I did NOT expect was my emotional reaction. One of the men I worked with put his hand on my shoulder and I just yelled "don't touch me!" It shocked the both of us.  I finally lost all control and was crying so much that one of the women on my staff too me to a rape center for counseling.

    Now if I hadn't even been raped--I stopped him before he could do anything--and was that shook up, I can imagine how that 15 year-old girl felt.

    For a lawyer to pull the "she was asking for it" is not just disgusting; he should have his bar privileges revoked.  No girl and no woman asks for it.

    Now at the tender age of 73 years young, I still remember everything that happened. That 15 year-young girl is going to have to carry what happened throughout her life.

    As Shakespeare said, ''The first thing we do, let's kill all the lawyers.'' It was stated by Dick the Butcher in ''Henry VI,'' Part II, act IV, Scene II, Line 73.

    It's a good thing I know some really excellent lawyers.

  •  Do you usually leave yourself open to banking (9+ / 0-)

    fraud when you go out with your friends at night?

    Are you sure you didn't change your mind about giving the armed robber money afterwards because you regret giving it to him?

    We have a report here that says your house was burglarized before. Are you sure you aren't just making up stories to get attention?

  •  The rapist is entitled to a legal defense. (5+ / 0-)

    This is not a defense. It's an attempted character assassination of the victim. It is unfortunately just how we do business when it comes to rape cases. "Why don't women report?" Gee, I don't know. Why don't they?

    I'm amazed by people's courage and kindness in the face of everything and life.

    by LaraJones on Fri Aug 15, 2014 at 02:46:33 PM PDT

  •  would you remove the defendants right to examine (0+ / 0-)

    the witness?

    as miserable as it is, the defendant has rights against the state.

    If the girl has anything to do, is later she can sue the defendant for civil damages.

  •  Let me expand on one thing you said. (2+ / 0-)
    Recommended by:
    moviemeister76, peregrine kate
    No girl, no matter how drunk, no matter how flirtatious, is "asking" to be raped
    No person ever asks to be raped unless s/he uses the phrase "I want to be raped" or something very similar that literally asks the other person to rape her and is at least 18 years old. And then it isn't rape, it's BDSM play.

    No one ever, ever, asks to be raped under any circumstances, no matter what else, if anything, is going on. I can answer my door stark naked and invite a strange man into my home and I'm still not asking to be raped unless I literally ask him, using words, to rape me.

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    by Kitsap River on Fri Aug 15, 2014 at 06:01:26 PM PDT

  •  Actually, Michigan is among the WORST states in... (0+ / 0-)

    Actually, Michigan is among the WORST states in the nation to be a rape victim. Even though the law states that a 15 year old minor cannot consent to sex, the courts have continually stretched the functional boundary that most 15 year olds actually have no legal protection fro statutory rape.

    I know this, because my daughter was such a victim....

  •  Where in Michigan? There is no Afirmative defen... (0+ / 0-)

    Where in Michigan? There is no Afirmative defense for sex with anyone underage In this state! Please provide information of the Circut Court where this travesty unfolded.

  •  Its America this is the way we treat girls. (0+ / 0-)

    The Christian way.

  •  Parents need to do a better job of raising BOTH... (0+ / 0-)

    Parents need to do a better job of raising BOTH male and female children!! Boys need to learn to STAY AWAY from the obviously drunk flirtatious female and females need to conduct themselves as young women!! 1. ALCOHOL+FEMALE = WHORE!!! 2. A HARD DICK HAS NO CONSCIENCE!!!

    3. Conduct yourself accordingly and this

    Type of shit will stop happening so frequently!!! PEOPLE ARE OUT OF CONTROL!!!

  •  No means yes? (0+ / 0-)

    Have you seen some of these teen agers. Almost everything they do is to invite attention and affection not realizing there lack of clothing is saying treat me like a slut. For a guy it's hard to know when a girl who is saying yes to the first dozen moves is actually going to stop and completely reverse her self and not want to commit to the final act. Many men don't want to hear "No" when they ready for sex.

    This is when deceit enters the picture. Guys want to get laid but pretent to be cool. Girls who want attention but want nothing to do with sex. The social gathering mixes everyone into the party where not everyone is willing to go as far as evertyone else. So it appears both the two got caught up in their lies.  So, I would agree with the guy the girl lead him to believe he was going to get laid. Had she not agreed with entering a private area then she would have a better case. As far as her being fifteen I fall back on my beginning statement, have you seen these girls lately. She may be fifteen but she may have twenty year old body. Which of course is another deceit.

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