State v. John Doe (2018)

Defense Counsel:

Charges: Rape

State’s Case:

Defendant was arrested for Rape while visiting friends at an out-of-state college. After a fraternity party, the alleged victim invited Defendant up to her dorm room, where the couple began making out. The alleged victim repeatedly told Defendant, “I am not going to have sex with you.” However, they continued making out and eventually had intercourse. Afterwards, the alleged victim called her friends for help. She showed them bruises on her neck, ears, and lips, and explained that Defendant had bitten her and sucked on her skin as he aggressively had sex with her. The friends called campus police and reported that the alleged victim had been raped. After a physical exam, the medical examiner concluded that the biting and sucking injuries, as well as injuries inside and outside the alleged victim’s vagina, were consistent with forceful, nonconsensual sex. Police located and questioned Defendant, who admitted to having sexual intercourse with the alleged victim, and admitted to drinking alcohol and taking LSD earlier that day. Defendant was arrested and charged with Rape. He faced up to 10 years in prison and a lifetime on the Sex Offender Registry.

Judgement:

Defense counsel immediately reached out to the prosecutor to obtain discovery and ask for her commitment not to seek an indictment without first allowing Defense counsel to investigate the case and present their findings to her.

In the State’s discovery, Defense counsel found extensive video surveillance footage showing Defendant and the alleged victim together around campus. They were affectionate with each other, but not at all “creepy” or “groping” or “stalking” towards each other. It did not appear that either of them was intoxicated.

The discovery also contained Defendant’s statement to police and several statements by the alleged victim. Ironically, Defendant and the alleged victim described the facts almost identically. Defendant acknowledged that the alleged victim repeatedly told him, “I am not going to have sex with you.” However, both acknowledged that they continued doing “other things,” including performing and receiving oral sex on and from each other, and that they eventually had sex. The alleged victim admitted that she never said “stop,” “no,” “don’t.” She denied being intoxicated and denied that Defendant seemed intoxicated. She did not claim that Defendant threatened her or used force to restrain her. She said she wanted it to stop, but felt like she couldn’t make it stop. Defendant admitted to being persistent with her, but denied forcing himself on her or coercing her in any any way. After sex, they showered together, exchanged phone numbers, and talked about seeing each other later that night. As soon as Defendant left, the alleged victim called her fiends for help.

In reviewing police interviews with several of the alleged victim’s friends, Defense counsel learned that the alleged victim never reported this as a rape. The friends confirmed that she told them she was uncomfortable about what happened, that “one thing led to another,” that she was confused, not sure how to explain what happened. She said she felt like it was her fault, because she had not told Defendant to stop. However, the alleged victim’s friends immediately “knew” she had been raped – they tried to convince her of that, and called her parents and campus police. Police also immediately “knew” a rape had occurred, and proceeded to treat the case that way.

After studying the discovery, Defense counsel and their investigators took Defendant back to the campus to observe and photograph all the relevant locations, learning additional, critical details about the way the two interacted during and after sex, which further indicated a consensual encounter.

Defense counsel then put everything in the hands of experts to try to obtain additional support for Defendant’s innocence. First, Defendant took a polygraph exam (which he passed) and a psychosexual evaluation (which showed he was not a predator, not violent towards women, not considered a risk to commit sexual offenses). To address the presence of alcohol and drugs in the case, Defense counsel consulted an expert Pharmacologist, who reviewed all the video surveillance, witness statements, and other case materials, concluding that everything was consistent with Defendant and the alleged victim being completely sober when they had sex. A Sexual Assault Nurse Examiner (“SANE”) and a Forensic Pathologist reviewed the sexual assault exam, and both agree that the injuries were consistent with consensual sex – not with forceful sex, as the State contended. Within days of the incident, Defense counsel had Defendant examined and photographed by a Forensic Pathologist, who found no evidence of injuries to him, suggesting there was no struggle of any kind. Finally, to understand how the alleged victim could have come to believe she was raped when in fact she wasn’t, Defense counsel turned to an expert in improper influence and interviewing techniques. The expert explained that, although adults are not normally as suggestable as children, adults certainly can be influenced to believe or endorse inaccurate, false versions of events. In her opinion, that’s what happened in this case: the alleged victim never reported this episode as a rape, but was led to believe or endorse it as such by friends, family, and police who jumped to conclusions and insisted she was a victim.

Defense Counsel presented its case to the prosecutor prior to indictment. Subsequently, the prosecutor dismissed the felony Rape charge and indicted the case for a non-sexual, non-violent misdemeanor offense. Defendant pleaded to the lesser charge under the Youthful Offender Act and was sentenced to 12 months probation. He is not required to register as a sex offender; and five years after he completes his sentence, his record will be expunged completely.