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Rape On Tape – Still Not Guilty

Roni writes on a high-profile Chicago rape trial:

There has been a slighty high-profile rape case going on here in the Land of Lincoln. It involves a party, lots of booze, one teen-aged girl, and 4 teen-aged boys. And a videotape.

The accusation went like this: A 16-year-old girl went to a party, got really drunk, passed out, work up the next day half-naked with words written on her in black marker (I assume cu*nt, bitch, whore, etc), two days later is talking to a girlfriend and discovers that there is a sex tape of her with the boys. She recalls nothing. She goes to her parents, they take her to the hospital and the police. Charges are filed. One boy pleads guilty to child porn. Two others have fled the country. The last one?

He was found not-guilty yesterday.

…Here are some key tidbits that I found in the way the media has been telling the story:

At the beginning of the video, the young woman is heard either groaning or moaning: Being passed out, I would assume that either way, it’s not a good way to tell if the woman is consenting to sex. Perhaps this is where the reasonable doubt plays in. The jury isn’t talking – yet – so we have to guess.

“It is convenient that she doesn’t remember anything,” [Defense Attorney] Kuzas told the jury. “She initiated drinking games, was chugging vodka from a bottle, and went to a party at 2 a.m.”

“Criminal sexual assault is when it occurs against your will,” he said. I also saw on a TV news segment that this attorney asked the young woman if she “consented to going to the party and if she consented to getting drunk.” Where the fuck does the fury start? What the hell does it matter if she consented to attending a party? Did the front door have a sign on it like at an amusement park: All who enter cannot sue for personal injury. What the fuck?

I know a few people in the rape survivors support network. I think I need to drop them a line and see if they can help me understand this. But to me it looks like another ‘he said, she said’ case and she lost. And people wonder why women don’t report rape more often.

30 thoughts on Rape On Tape – Still Not Guilty

  1. Lauren, technically your post title is legally incorrect. Rape is only rape when there’s a legal conviction. An articulate argument for that is made by Tim Worstall.
    I am sure rape law is complex and there’s basically two terms: forcible and statutory. In this instance it wasnt forcible rape as they didn’t use violence or threats. So that only leaves statutory rape as the crime.
    Now consent is a non-issue if the woman were underage, so I am going to guess that 16 is legal.

    Now my gut feeling is also that it is rape as she was taken advantage of, the fact that two of the men fleed is also a bad sign. However, she didn’t remember agreeing to sex, but it doesnt say she didn’t agree,she just doesn’t remember. Rape convictions where the women is unconscious do happen, but not always. Let’s also remember none outside the Jury have seen the videotape – andthe Jury was 8-4 women-men.

    What we have to decide is do we want more rapists being convicted at the expense many more innocent men will be convicted; do we want less rapists convicted so that hopefully no innocent men will be convicted.
    Laws are there to protect the innocent as much as possible and sometimes that does mean guilty people do escape their punishment.

    Finally a note on the Media. They are there to sensationalise and make people appear guilty – it helps sell. Today a colleague at work was saying Michael Jackson is clearly guilty, cos of all the porn they found at Neverland, I think he was reading the BBC web site. I asked my colleague if he had any porn, he said he did. So there went the connexion between porn and paedophilia.

  2. Manjo, rape statutes are more complicated.

    In NY, for example, a woman can be incapable of consent by reason of intoxication. IIRC, the case law says she has to be so intoxicated as to be incapable of saying yes or no. I have not seen the evidence in the case Lauren describes, so I can’t say how drunk she was, but that sounds like it would be rape in NY to me.

    My gut also tells me this was a rape. I’ll never criticize a woman for setting up a group sex encounter if that’s what she wants to do — but with a sixteen year old girl, blackout drunk, that’s hardly the way to bet.

    On the gender mix of the jury — actually, conventional wisdom among defense lawyers and prosecutors alike is that women are less likely to convict. I think it’s a personal defense mechanism — many women must find some aspect of the victim’s behavior to blame, otherwise they would come into full awareness that it could happen to them.

    My gut reaction is that the jury held the victim responsible for being a bad woman, getting drunk in the presence of men. That makes me angry and sad.

    The harm that women do to other women is among the toughest issues for feminists to discuss. But patriarchy is not just “boys against girls.” That’s a fourth-grade spelling bee. Patriarchy is a social structure of restricted gender roles and sanctions to enforce them, which limits all people, but particularly disadvantages women. Partiarchy means that, if you break out of your assigned role, you never know which way the attacks will come at you.

  3. Monjo, your understanding of the law is lacking. Rape statutes vary by state, but most places having sex with an unconscious person is rape, as the person cannot give consent.

    I also disagree that it can only be called rape if there was a conviction. Lauren might be risking a libel lawsuit if she’s wrong, but if it was rape, it was, and it isn’t wrong to say so.

  4. It cannot be reffered to as “rape” in a courtroom, as that makes the defendant’s innocence suspect. But to say that no incident of sexual assault can be called rape unless a conviction was made does a great disservice to those of us who have been raped with no following conviction.

    It’s sort of like Kate Roiphe saying that rape isn’t rape, it’s bad sex (paraphrase).

  5. You know, not that I’m a saint or anything…

    But if a girl slurs out a “yes” and then passes out on the floor with a near-empty bottle of vodka in her hands, I’m probably going to call a hospital before I call my friend with the video camera.

    That anyone tries to defend this is fuck-diculous

  6. I wouldn’t give a damn what the “age of legal consent” is – if someone ever did this to my daughter and got off scot-free, I so swear on my mother’s eyes that he and his honchos had better either a) move north of the Arctic Circle ASAP or b) have the police place them in some serious protective custody, because I would hunt them all down like they were Pablo Escobar and make them skull-fuck bullets.

    If the justice system is not willing to convict these people, then street justice may be the only way to address it.

  7. Well I am not defending the actions of the men per se, because what they did was wrong (ethically and morally). However, I maintain the same principles to all incidences even when I have discussed the issue with a close female friend and an ex, who have both been victims – the law is the law and should be respected, it exists because without it we have anarchy.
    state713: I can understand that POV, *if* my sisters or mum were to be assaulted I would have the same feelings – human nature.

    Thomas: Yes, I had heard women are less likely to convict. As you say it may be they deemed her behaviour ‘bad’. A woman who wears a short skirt and a **** ME T-shirt is similarly also prejudiced against.
    I have a more controversial hypothesis about why women are less likely to convict but this isn’t the place to state it. It certainly isn’t patriarchy. Patriarchy is actually more likely to convict.

    Emma Anne/cottonmouth: Rape laws vary all over the world. Whilst the age of consent is technically 18, a girl can be under 18 (but over 14) and it not be statutory rape if the man is younger than a certain age (18 I think), or if the girl is 17, he must be under 21.
    Finally, rape is dependent on penile penetration. The report for this case showed no proof that happened.

    As I said in my original comment, if you think the law is flawed then make suggestions to change the law, but please remember the law generally criminalises the man and the protects the woman whether there’s a conviction or not. At least in the UK the man’s identity isnt protected, the woman’s is. So there’s much wrong with rape laws, from all viewpoints.

  8. Give me a break, “Monjo”– if this were done to you, you’d call it rape: I don’t give a f(*&k what a bunch of idiot jurors thought, and neither would you, if you were the victim. The fact that you can make such moronic “arguments” just shows that you lack the wit or empathetic capacity to imagine being the victim.

    What those boys deserve is to be locked up in a cell with a psychotic 300 kb rapist….

  9. Monjo:

    You probably should lay off making pronouncements about what the law of rape is. I take it from your comment you’re from the U.K., where criminal statutes for England and Wales are uniform. Here in the United States, we have 51 legal sets of criminal statutes. Each state has its own law, plus a federal criminal code, which can be prosecuted essentially duplicatively with state cases. So, when one speaks about what the law is in the U.S., one should either limit one’s remarks to a particular jurisdiction (“Here in New York …”), or qualify one’s remarks to reflect that diversity (e.g. many states have a so-called “Romeo and Juliet” clause, exempting from criminal prosecution sexual conduct between a person (sometimes a woman) under the age of consent and a similar aged partner). FWIW, some states do not define rape to require that penetration be with a penis.

    I won’t offer an opinion on Illinois law because I don’t know it.

  10. Thomas, excellent post. If I might make a suggestion, go to Pandagon and repost your comment under Amanda’s post. They have some confusion on the issue, and I think your post should be heard there too.

  11. I want to second Rebecca’s suggestion about the rape case covered extensivly by the OC Weekly. If you want to get really pissed off, go to their site – and search for “Haidl”. It’s an outrageous case in more ways that I can get into here.

    But: This one involved the son of a sheriff and some friends, and a 16 yo girl. The boys apparently drugged the girl’s drink. Then they taped themselves having sex with the passed out girl, sticking lit cigarattes and other objects in her vagina, etc. They lost the video and the people who found it turned it into the police because they thought the girl in the video was dead. That’s how passed out she was.

    She didn’t have any memory of the event.

    Of course, the boys’ incredibly disgusting, sleazy lawyer mounted an incredibly disgusting, sleazy defense in which he claimed that the girl was “pretending” to be passed out because she’s a kinky slut/whore (yes, he used those words in court) who wanted to be a porn star and thought this might be her debut. According to the lawyer, the girl was directing the action and loving the whole thing, cuz, you know, she’s a big old slutty whore. Fuck me again with that snapple bottle!

    What do you know, it worked! (Well, the first trial ended with a hung jury- we’ll see how the new ones ends up soon). Good old fashioned rape myths worked against this girl. She had had consensual sex previously with one of the boys, she wasn’t a pristine little virgin, etc. She had a bad reputation. She was reputed to like sex. And we all know that girls who like sex can’t really be raped, because rape is sex and slutty whores like sex. It also did not help that one of the boys was a sheriff’s son and lived in a nice big house, whereas the girl was not so well-off and lived in a less presitigious area. Class, anyone? Just another low class slutty whore with a fetish for pretending to be dead while a bunch of rich boys call her names and violate her with objects!

    sorry for the sarcasm. this one just really, really pisses me off.

  12. I’ve just one little quibble with a lot of the women posters.

    Why use cunt when pussy is so much kinder and gentler? And much more fun, I would think.

    Also *why the fuck*? What the hell ?!! is just as expressive.

    I guess my main complaint about feminists is that so many think they must talk like a Marine.
    And I know how Marines can talk!

  13. Duck, we’re so crass — it must be the jack boots.

    But hey, you were the first to use “cunt” on this page. I call that thread-jacking and we don’t like that here.

  14. “I guess my main complaint about feminists is that so many think they must talk like a Marine.
    And I know how Marines can talk!”

    If feminists behaved and talked like “good little ladies” they would have never made any progress. Sometimes you have to bypass and out-right ignore social mores in order to be heard. Feminists and women should stop trying to play by “the boys'” rules when the rules are blatantly biased against them.

    And this case, is a perfect example as to why rape victims don’t always come forward. It’s sick that we live in a society where we seem to always blame and insult the victim, and allow such disgusting, misogynist myths about rape to be so prevelant and ingrained in our psyche, that even police officers, prosecutors, judges, and even women (who could become a victim themselves one day) would believe them.

    Why come forward when you’re automatically painted as a “slut who deserved it” or “had it comin'” and the guy(s) who raped you are defended with “boys will be boys” and “they were drunken frat boys, so cut them some slack”?! Some rape victims are purposefully set up for failure, humiliation, and scorn.

  15. I checked out the post Monjo recommended. Here’s an excerpt:

    Ummm, no. 5.6 % of rapists are not being convicted in court. 100% of rapists are convicted in court. That’s the way we do things you see, an accusation is made, off to court with everyone, evidence, jury, trial…..if at the end of this process someone is convicted for rape then a rape has indeed taken place and the rapist convicted. If, however, someone is not convicted, then there has been no rape and there is no rapist. The very definition of rapist is someone who has been convicted in court of having perpetrated a rape.

    okay. there are legal considerations. that’s why journalists and others refer to people who have been accused of a crime, any crime, as “alleged” (rapist, thief, plagiarizer etc etc). but there’s a world of difference between being careful to acknowledge that someone has been accused rather than convicted, and saying that once they’ve been acquitted, the crime they’ve been accused of has now been proved never to have happened. that’s just…excuse me…kind of silly.

    most rapists are never officially, legally labeled so by a court system. that is because rape cases are notoriously difficult to successfully prosecute. some of the reasons for that have been explored in this thread. but that does not mean that they are not rapists. just try telling a rape victim that the aquittal of the man who raped her means her rape didn’t happen and see what kind of reaction you get. if you rape, you are a rapist.

    so, okay, from now on i’ll remember to write “accused” or “alleged” instead of “that piece of shit” rapist.

  16. oops, lost my html in that one. just want to be clear that this gets attributed to Tim Worstall and not me
    Ummm, no. 5.6 % of rapists are not being convicted in court. 100% of rapists are convicted in court. That’s the way we do things you see, an accusation is made, off to court with everyone, evidence, jury, trial…..if at the end of this process someone is convicted for rape then a rape has indeed taken place and the rapist convicted. If, however, someone is not convicted, then there has been no rape and there is no rapist. The very definition of rapist is someone who has been convicted in court of having perpetrated a rape.

  17. Purple Duck:

    “lower deck language,” as the British sometimes call it, has a class component. You can’t tell from my comments, because I tend to write with my lawyer hat on, but when I speak casually, I sometimes use the word “fuck” as more than one part of speech in a single sentence. I could change that. But I won’t. I grew up on construction sites. I worked a real job before I could drive. My roots are working class swamp yankee, and I’ll be fucked if I’m going to apologize for it.

    Or are you only troubled by coarse language from women?

  18. Age of consent appears to be 17, actually. Here’s the statute:

    Sec. 12‑13. Criminal Sexual Assault.
    (a) The accused commits criminal sexual assault if he or she:
    (1) commits an act of sexual penetration by the use
    of force or threat of force; or
    (2) commits an act of sexual penetration and the
    accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; or
    (3) commits an act of sexual penetration with a
    victim who was under 18 years of age when the act was committed and the accused was a family member; or
    (4) commits an act of sexual penetration with a
    victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.

    Sexual Abuse is a separate crime that doesn’t necessarily involve penetration, with one of the first two extra elements—by force, or with knowledge of the victim’s incapacity.

    I don’t know what the jury is thinking, but I will note that Illinois is a little more demanding than many states in the standard for incapacitated-victim rape. Namely, the requirement that the accused “know” of the victim’s incapacity is unusual.

  19. Addition: Regrets, I don’t have any direct information on what satisfies the penetration requirement. I am aware of one case, People v. Darby, No. 1-97-3938, where a conviction of sexual assault (not sexual abuse) resulted but it appears only digital penetration occurred. So it appears penile penetration is not required, but I’m putting a big caveat on that conclusion.

  20. Tony, I think you misread it. 12-13(a)(4) specifies that the victim is 13 to 18, and the assailant is 17 or older. That’s a Romeo and Juliet clause, protecting consensual encounters between teens (say, a 16-year old guy and a 14 year old girl).

    A woman cannot give legal consent to an adult partner under this statute until she is 18.

  21. Monjo said:

    “What we have to decide is do we want more rapists being convicted at the expense many more innocent men will be convicted; do we want less rapists convicted so that hopefully no innocent men will be convicted.”

    Well, we don’t want to convict the innocent, but I think this case isn’t about whether the accused is guilty or innocent, it’s more about “can we find a way to blame the victim for putting herself in a situation where rape was possible” – in other words, for showing up at a party and drinking? I think if you’re caught on tape having sex with an unconscious woman, you’re guilty of rape. End of story.

    Also, the jury’s finding only makes you guilty or innocent in the eyes of the law. It doesn’t change whether you are really guilty or innocent.

  22. tanuki: I admitted as much in my post that we are all hypocrites when something actually affects us directly.

    Thomas: Purple Duck has a point, if certain words are overused they lose their impact. Still, irrelevant to this thread.
    Also rape laws aren’t “stable” in England and Wales. As I say in all cases that go to court, guilty or not, all the accused (men) are socially stigmatised. With no repercusion to the accuser for deliberate false claims. A good commentry on some of the issues by Melanie Phillips – who is well worth a regular read.

    Now I shall re-iterate (for the third time):
    I think what the men did was morally wrong and should be against the law. In Illinois it clearly isn’t. All decent men and women should wish that changed for future cases.

  23. Monjo:

    I didn’t say “stable.” I said “uniform.” Perhaps Wales has different statutes now due to devolution- but from the Scottish border down to Land’s End, the law of England is the same, without separate regional variations. No?

    To assert that there are no negative consequences to women who report rape is simply absurd — as we have seen in this case, Kobe Bryant, etc., the demonization of the complaintant is surely a brutal and bruising experience, even when she tells the unvarnished truth. Much more so than for, say, a man who reports that he has been robbed at gunpoint. As for sanctions for false accusations, such a prosecution is certainly possible — but it runs into the same proof problem as the rape itself: how do you prove the rape victim is lying? He says it was consensual, she says it wasn’t. If he’s acquitted, it simply means the prosecution couldn’t prove its case beyond a reasonable doubt, not that her account was false beyond a reasonable doubt. Surely you are not suggesting that it should be _easier_ to prove that a woman is lying about rape, than to prove rape?

    Finally, you repeat for the third time an assertion that seems more tenuous every time you say it — that the conduct of these men was not rape. The language of the statute is above: “the victim was unable to understand the nature of the act or was unable to give knowing consent.” That seems to me precisely what happened here.

    If you are still holding to your assertion that it didn’t happen because there’s no conviction, I remind you of three things. (1) one man plead guilty. (2) the standard is proof beyond a reasonable doubt. This woman could well succeed in proving in a civil case by a preponderance of the evidence all the elements of the offense. (3) the Justice Department keeps statistics on major crimes, such as homicides and robberies, as well as rapes. They take the data from reports, not arrests or convictions. If a person is killed, there’s a homicide even if there is no conviction. If a liquor store is robbed, there is a robbery even if there is no conviction — indeed, even if the robber is never arrested.

  24. Monjo –
    Finally, rape is dependent on penile penetration. The report for this case showed no proof that happened.

    Actually they found his semen inside of her…

  25. In addition, Manjo, as Tony the Pony pointed out, the statute does not appear to require penile penetration. So far, your pronouncements on what the law is have had a poor success rate.

  26. We have a similar case here in Orange County that ended in a hung jury. Part of the problem is that the day before the rape, the girl had consented to having sex with the fellows in question.

    We need to teach the children that you have to get permission each time.

  27. Thomas: he said sexual assault doesn’t require penile penetration, rape does. I said I believed by my morality they had abused her – but that it wasn’t rape. I also suggest the law should go further to protect people who aren’t fully conscious.

    Casey: semen inside someone doesn’t mean penile penetration, there’s a tenuous link between the two

    Joel: Rubbish. If everytime you wish to havesex you need to ‘ask’ where’s the spontaneity? It is a matter of saying ‘No’, not having to consistenly say ‘Yes’. If that seems bad let’s reduce it to just kissing… when you start to go out with someone you kiss and if everytime you wished to kiss them you had to say “Please may I kiss you?” no-one ever would be kissing. So, you have the assumption you can kiss until they ask you not to.
    There are enough opportunities to say ‘No’ or ‘Stop’.

    If you think my attitude is wrong, go out with a girl and ask everytime before you touch her – she’ll soon consider you a freak.

  28. Monjo:

    The “criminal sexual assault” statute _is_ Illinois’ rape statute. No statute in Illinois’ criminal code is entitled “Rape.” There is no firm naming convention for American criminal statutes.

    So, since Illinois criminal law uses the term “criminal sexual assault” rather than “rape,” is it your contention that no sexual assault in Illinois is ever “rape,” or do you concede that a sexual assault which satisfies the elements of 720 ILCS 5/12-13 (the statute Tony quoted) is a rape?

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