College athletes escape rape charge

Perhaps the Duke debacle had nothing to do with it, but members of DeAnza College’s baseball team won’t be charged with gang-raping a drunken 17-year-old at a March 3 party near San Jose. The district attorney of Santa Clara County found “insufficient evidence,” though the county sheriff said she believes the girl was sexually abused.

There’s no question that several men had sex with the girl. Other party-goers cheered them on. The issue is whether she was too drunk to give consent. Three female students — all soccer players — pushed into the room, chased off the guys and took the girl to a hospital; they say she was semi-conscious and covered with vomit.

The teen-ager says she can’t remember what happened. Other witnesses apparently told conflicting stories. It might have been a difficult case to win but far from impossible. I can’t help wondering if the DA’s reluctance to prosecute was another victim of the Duke non-rape case.

About Joanne

Comments

  1. Mental Note: Don’t get sloppy drunk at college parties thrown by athletes.

  2. wayne martin says:

    I just got off the telephone with the Santa Clara County Sheriff’s Office suggesting that they not let this case drop. There are some many issues with it that it needs to be re-investigated:

    o) There is no mention of this 17-year old girl’s parents in any of the articles I could find on the WEB.
    o) There seemed to be no mention of legal representation for this girl, other than the DA.
    o) The claim that the DA doesn’t discuss facts in cases not filed is frustrating the situation more than if that Office were to let people understand how this case could not be prosecuted. The County Supervisors need to get involved at some point in an oversight capacity.
    o) The fact that the girl was seventeen years old ought to have warranted some sort of charges—why doesn’t the DA doesn’t think so?
    o) The Sheriff has an opportunity to tell the community what she knows. If she doesn’t, then she is dropping the ball.
    o) If there was no DNA evidence, then this community has a right to know that.
    o) If the girl had died, would the DA have made the same conclusion about not charging anyone?
    o) If the girl ends up with STDs, whose to blame?

    The Community College has suspended the ball players on ethics charges, although I’m not certain for how long. With the DA walking about from this situation, it’s not clear how long the Community College will hold to its suspension.

    Too many unanswered questions here.

  3. Cardinal Fang says:

    Maybe the three young women who broke in and drove the young men away can’t identify the young men.

    But one person who comes out of this smelling like is the infielder, Scott Rebagliati, who whined, “I’d ask her why she chose to put us and herself through so much. My only thought is I hope that she learned a lot, as well as about herself, in the last two months.”

    Maybe it wasn’t illegal to have sex with a 17-year-old girl who was drunk, disoriented and covered with vomit, in front of half a dozen witnesses. But it’s certainly disgraceful. Rebagliati might want to ask himself why he and his teammates chose to bring shame on themselves in this way. Unfortunately, he doesn’t seem to have learned a lot about himself.

    De Anza College ought to have an ethics standard that is higher than “hasn’t been charged with rape.”

  4. Cardinal Fang says:

    I meant to say the infielder came out smelling like *bleep*. I wish we had Preview on this site.

  5. wayne martin says:

    > Maybe the three young women who broke in
    > and drove the young men away can’t identify
    > the young men.

    These two facts were found in articles about the incident in local papers:

    o) During their investigation, sheriff’s deputies conducted numerous interviews and obtained DNA samples for testing

    o) Grolle and Chief Elk say they couldn’t identify most of the people in the room, though Bryeans, who was friends with the team, knew several of them..

    None of the newspaper articles indicate when the police were called, or when they arrived at the party. The girls who broken into the room claimed that they were planning to leave the party at 12:20AM. Then, they took the victim to a hospital about 20 minutes away by car. Some of those guilty of the assault could have left the party by the time the police arrived.

    However, with DNA and some of the people in the room known to the Soccer players who were rescuing the younger girl, there should have been enough identities established to establish charges.

  6. Is this the De Anza College in the SF Bay Area? If so, then it *is* illegal for someone over 18 to have sex with someone under 18. If there’s three years or less in their age differences, it’s a misdemeanor. If over three years, it’s a felony.

    It’s conceivable this girl is yet another of Nifong’s victims.

  7. At an absolute minimum, there should be some charges laid for supplying a minor with alcohol.

  8. wayne martin says:

    From a local newspaper:

    —-
    Publication Date: Friday, August 26, 2005

    Paly soccer coach, substitute teacher charged with providing alcohol to minors.

    Well-known youth soccer-league president arrested and faces misdemeanor charges after wild, end-of-year party

    A major figure in Peninsula youth soccer has been arrested and faces misdemeanor criminal charges of providing alcohol to four 18-year-old women team members at an end-of-year party that included “streaking” nude and sexual intercourse with three of the players, according to San Jose police reports and court documents.

    The suspect, Jeff van Gastel, 34, of San Jose, is the former Palo Alto High School varsity girls’ soccer coach and a substitute teacher with the Palo Alto Unified School District. He is the founder and president of the De Anza Force Soccer Club in Cupertino, and coaches two of the nine girls’ teams in the club. He also is president of a regional league that represents nearly 300 soccer teams. The party was for the De Anza team only, not the Paly school team.

    Van Gastel was arrested Aug. 10 for providing alcohol to four 18-year-old women players at an end-of-season barbecue that turned into an all-night party, which he hosted at his parents’ house in San Jose June 7. He was released on $15,000 bail. His arraignment is scheduled for Sept. 12 in Santa Clara County Superior Court.

    …

    The misdemeanor alcohol charges stem from an initial allegation of “sexual assault” made by two of the women involved and their parents. But a San Jose Police Department report filed with the court concluded that the women were not minors and didn’t appear to be forced into any sexual activity.

    After reportedly providing them with beer and margaritas at the party, van Gastel had sex with three of the players, according to the police and investigators’ reports filed with the court.

    —-

    In this case, the Santa Clara County DA managed to charge this fellow with giving alcohol to a minor. In this most recent case–the DA doesn’t seem to see a need to charge anyone with that charge.

  9. Prof210 says:

    Of course, the other possibility is for the victim to file a civil suit for assault, intentional infliction of emotional distress, etc.

  10. wayne martin says:

    > sue the miscreants ..

    One article on the matter indicates that the girl has left the area. Given that there has been no information about her other than her age, it’s highly possible that she is an illegal alien, or has some other problem that has caused her to avoid all visibility. As pointed out earlier, there has been no mention of her parents, what neighborhood she was living in, what high school she attended, if she was a neighbor, or how she came to be at the party.

  11. Cardinal Fang says:

    She could be an undocumented alien, but more likely she just doesn’t want to out herself and get torn apart in the press and on the Internet. It’s not a pleasant thing to out yourself as a rape victim.

    As to whether the Duke case affected the DA, I doubt it. Rape has always been a difficult crime to prosecute, since the alleged attackers can always say it was consensual. And DAs don’t usually bring charges of underage sex in the case of 17-year-olds when the other party was not much older.

  12. “Maybe it wasn’t illegal to have sex with a 17-year-old girl who was drunk, disoriented and covered with vomit, in front of half a dozen witnesses. But it’s certainly disgraceful.”

    Sure. But it’s a bad idea to confuse “disgraceful” with “illegal”, particularly with the baggage that a sexual offender conviction brings with it.

    So not a casualty, but a positive sign of change.

  13. Cardinal Fang says:

    It would be a positive sign in the case that the sex really was consensual; if the young woman was sober enough to consent, then got drunker, then the attackers committed no crime.

    I take a different view. I think the woman was raped, and the DA made a determination, perhaps justified, that the case couldn’t be made without a reasonable doubt. That is, I think a rape happened but the prosecutors can’t prove it. That means I think the men are getting away with rape, and I can’t take that as a positive sign.

  14. If I understand you, you’re saying that if the girl wasn’t sober enough to consent, it would be rape, whereas if she was, it wouldn’t be rape.

    In both cases, the onus is apparently on the guy to make this determination. That’s simply unfair in a world where men and women are peers.

    So if the girl struggled and screamed and was beaten back, then she was raped. If she was merely too drunk to consent, then I have trouble seeing that as a tragedy. I certainly don’t see it as men “getting away with rape”.

  15. Csl: if it was two 21 year olds, I’d agree with you. When it’s a highschool girl and a group of college men…

  16. Cardinal Fang says:

    What can you possibly be saying, Cal? That any man has the right to have sex with any woman if she’s drunk? That being drunk in itself constitutes consent to having sex with anyone? Does this apply to men, too, or is it only women who are presumed to agree to having sex with any man unless they hit him?

    If I’m unconscious, is that also tacit consent for a man to have sex with me? Is it only alcohol that confers the consent, or would a coma be good enough? What if I were in a persistent vegetative state– since I didn’t struggle, would I be consenting to sex with anyone who walked in to my hospital room?

    I cannot agree with this view. It appalls me.

  17. wayne martin says:

    This morning there was an article in the San Jose Mercury about the DA “Breaking Silence”. There was nothing of substance in the article, but there were a number of people who commented.

    The following is interesting:
    —–
    People who are quick to judge are quick to parrish. Don’t come on this message board and shout what you “think” happened… I was there…. The DA made the right decision. There are TWO sides to every story. Nobody wants to hear the baseball players side of it, and thats why comments in their defense are deleted on a regular basis. What happened that night was not right, but EVERYONE in that room had a degree of responsibility towards the events that took place. Nobody was forced.

    • Posted by: DeAnza Baseball Player

    The poster seems to claim that there is “another side” to the story, but does not seem to want to tell us what it is. This poster claims to have been present, but doesn’t seem remotely ashamed about being a participant in a group of men engaging in sexual activity with a drunk, underaged girl at a party. In fact, this poster seems pretty defiant about his not having anything to be guilty about.

    Is this what we, as a society, have come to? Is this what we expect from the young, for which we invest so heavily in “education”?

  18. Here’s a primer on California law on sexual assault:

    Sexual intercourse is considered non-consensual and, therefore, rape when the person is incapable of giving consent because s/he is incapacitated from alcohol and/or drugs, or if a mental disorder or developmental or physical disability renders the victim incapable of giving consent.

    I think most or all states have similar laws.

    Proving incapacitation isn’t easy, but it can be done. Being drunk is not a defense. If you’re capable of a sexual act, you’re supposed to be capable of noticing the other person is passed out or too drunk to talk.

    To convict on statutory rape, the DA would have to prove the men knew or should have known the girl was 17 rather than 18. That presumably would be impossible.

  19. wayne martin says:

    On the following WEB-site there are about a dozen clips of newscasts on this matter:

    http://www.nbc11.com/news/11241020/detail.html

    In the one at the top of the list (the latest one), the witnesses indicate that the victim might be considering a civil suit. One of the clips involves an “expert” talking about the case. This fellow points out that if the victim were to pursue a civil suit, then the police reports would be available to those proceedings, and could become public at some point.

  20. wayne martin says:

    > To convict on statutory rape, the DA would
    > have to prove the men knew or should have
    > known the girl was 17 rather than 18. That
    > presumably would be impossible.

    In the “late edition” of the SJ.MercuryNews (the WEB-site), an article appeared this afternoon which provides a couple of clues about the victim. It’s quite possible that this girl played baseball in a private girl’s school on the Peninsula. If that were to be true, then the victim probably was invited to the party by someone who plays baseball. This girl probably was known to at least one, if not more, of the partygoers as a high-schooler.

    If this girl had attended other parties at this house, or with this group, then it’s likely her identity might be known by more than a couple of the party regulars.

    Another woman (over 18) has also come forward with a similar story about being assaulted in this house in Dec., 2006. Additionally, one of the TV clips (on the link posted) reveals that the young man who lives in this house had been arrested previously for being drunk and defying a police order when the police were called in response to neighbors reporting a rowdy party at this location.

  21. Cardinal, your questions make it clear that you consider it the man’s responsibility to determine the woman’s state of mind, even if he is in the same state. That whole line of thinking is absurd, and demeaning to women.

    If you are drunk and unaware of your surroundings and a man too drunk to realize this had sex with you, you weren’t raped. You may have had unwanted sex, but oh, well. Don’t go to parties and get so drunk you can’t tell what’s happening. It oughtn’t to be a man’s job to paternally decide whether or not you’re capable of consenting to sex.

    Joanne, I’m well aware of the law. “Rape” has been defined so broadly that it’s now a parody of its former self–with the same penalty of “sexual offender” with all that it implies. As if three drunken 18 year olds having what they think is group sex with a drunken teen are equivalent to a rapist who brutalizes women in garages or by breaking into their homes. Feminists have had their way with the law, and the law is now a joke.

    Juries have made it pretty clear that they’re tired of this nonsense, which is why prosecutors have been stunned by juries finding defendants not guilty despite videotaped evidence of them inserting bottles into a drunken girl. In previous years, the Duke students might have been advised to plead their way out, despite being innocent, but the well-deserved skepticism and overreaching of the law has had a very positive effect.

  22. That’s really beautiful, Cal.

    While no one suggests that the underage child’s actions in this case were well-advised or responsibile, your views on the subject of “unwanted sex” versus rape are repugnant. Of course it is not a man’s responsibility to “paternally” [and oh man, I hope there’s a (sic) after that, and if not, I really hope you do not have daughters], make decisions for his sexual partner, but your contention that consent is unnecessary in the presence of alcohol or otherwise consent-blocking agents is absurd, and quite frankly, disgusting. Your further contention that these good young Americans were somehow unable to delineate between the child’s ability to consent or not, while she was semi-conscious, covered in vomit, and probably doing none of the things the average woman does when interested in the sexual act either displays a tremendous amount of ignorance or a connection to the lyrics of a certain defunct SoCal ska band: “If it wasn’t for date rape/ I’d never get laid.”

    This part was really good: “…oh, well. Don’t go to parties and get so drunk you can’t tell what’s happening.”

    Right. And don’t wear that skirt, because you’d be asking for it. And don’t let that guy buy you a drink, because you’d be asking for it. In fact, don’t go anywhere or do anything that might result in your lack of control, (included falling asleep in an airplane, suffering a head wound, or having a general in the dentist’s chair) because you’d be asking for it. I wonder, Cal, if a young woman has non-disjunction of the 23rd chromosome, and “can’t tell what’s happening,” is it okay to rape her?

    As for your snide and supremely ill-informed comment regarding the psychological effects of date rape versus the oh-so-problematic garage rape, the next time you’re raped by a number of older men at a party, you come back on this blog and let us know if the geographic location of the unwanted penetration really mattered to you.

  23. Mental note: Don’t get sloppy drunk *ever*.

  24. There are all manner of questionable comments circulating this discussion, from both sides of the argument. Many of the posters seems to be responding from some negative past experience (e.g., the rape victim or the accused rapist) rather than with reason:

    1. Engaging in any sexual act with someone who has not explicitly consented is *always* wrong.

    2. A 17-year-old is not a child, and use of such an obvious distortion is an attempt to conflate sexual contact with a 17-year-old with predatory child molestation. This is patently absurd and undoubtedly offensive to anyone who suffered through actual sexual assault as a child.

    3. Consuming even small amounts of intoxicants that impair judgment and could potentially render one unconscious is almost always ill-advised. It is *especially* ill-advised when one finds herself surrounded by (a) strangers or (b) horny young men (even if they are “friends”). This is not to say that anyone ever “deserves” to be raped. On the other hand, if you get tanked and then hop in your car, how reasonable is it to call foul when you end up paralyzed in the resulting auto accident? It’s simple self-respect and self-control: if you don’t want to get burned, stop playing with fire.

    4. A victim of criminal behavior doesn’t obtain legal representation unless s/he plans to file a civil lawsuit. The DA prosecutes criminal behavior on behalf of society and the victim. Why would one be surprised that you hadn’t heard from the victim’s “legal counsel?”

    5. Scenarios such as these, where groups of men observe intercourse and cheer it on, is apparently becoming more common. I am no prude by any means, but what the hell has happened to simple decency in this society?

    6. Understanding that all humans develop at differing rates, it is impossible for anyone to accurately identify the age of a potential sex partner on sight. I will select a 17-year-old, an 18-year-old, and a 21-year-old; stand them side by side; and defy anyone to correctly identify all three.

    7. As for underage drinking, this is now so common as to be a non-starter from a legal perspective. It terrifies me to hear about parents who permit their high school aged (and even 20-year-old) children to attend Mardi Gras or spring break in some far off locale. Even the parents don’t seem to care, so underaged drinking is apparently a permanent fixture of American culture.

  25. wayne martin says:

    > Why would one be surprised that you
    > hadn’t heard from the victim’s “legal counsel?”

    For the very reason we are having this discussion. The DA did not bring charges and there may well need to be a civil suit for the girl to obtain some semblance of justice. If the girl’s parents were thinking ahead, they would have contacted counsel so that they could understand both the DA’s actions, and how to deal with public comments by the men’s attorneys.

    And there is the odd possibility that the DA could bring charges against the girl.

    The DA is not counsel or the girl/family in this situation. If the family wants justice, they will have to obtain counsel and seek it themselves. If they do, at some point we will hear from their lawyer on the matter.

  26. Cardinal Fang says:

    On the other hand, if you get tanked and then hop in your car, how reasonable is it to call foul when you end up paralyzed in the resulting auto accident?

    The difference is if I drink, drive and then end up in an accident, I have committed a crime, whereas if I drink and then I’m raped, I’m the victim of a crime.

    Cardinal, your questions make it clear that you consider it the man’s responsibility to determine the woman’s state of mind, even if he is in the same state.

    So, Cal, you and I are at a party. You’re drunk. I come up to you, reach into your pocket, take your car keys and very obviously drive off with your car. You don’t run after me yelling “Hey, that’s my car! Stop, thief!” because you’re too drunk to talk and you can’t stand up. No crime there, right? I didn’t steal your car. It’s not my responsibility to determine your state of mind. It’s all your fault. You shouldn’t go to parties and get drunk when you know there are car thieves around.

    Somehow these young men seem to be using a notion of agreement that they wouldn’t countenance if they were the ones supposedly agreeing.

  27. wayne martin says:

    This article was published in the Saturday’s SJ.MercuryNews:


    http://www.mercurynews.com/ci_5994152

    Experts: Gang rape common but prosecution is rare
    VICTIMS, ACCUSED LOSE REPUTATIONS
    By Linda Goldston
    Mercury News
    Article Launched: 05/26/2007 01:29:41 AM PDT

    Gang rape allegations surface with the force of hurricanes, knocking reputations upside down – for the victim and the accused – and pitting neighbors against each other. When the accused are athletes on school campuses, it’s even more cataclysmic.

    But as in the recent alleged gang rape involving De Anza College baseball players, there is rarely a resolution. Such cases are difficult to prosecute, experts say, partly because they almost always involve heavy drinking. In the end, they leave the victim with added trauma and the accused with no way of clearing their names.

    Some of the reader comments for this article are a little disturbing.

  28. The difference is if I drink, drive and then end up in an accident, I have committed a crime, whereas if I drink and then I’m raped, I’m the victim of a crime.

    You are correct; that is the difference between those two situations. And the similarity between them, as I pointed out, is that you acted like an adolescent and paid a price in both instances.

    You shouldn’t go to parties and get drunk when you know there are car thieves around.

    You shouldn’t go to parties and get drunk. At all.

  29. SuperSub says:

    Cardinal-
    Two points – the alleged “rapists” were probably quite sloshed also… so the idea of predatory men scheming to take advantage of a defenseless girl, as you seem to have proposed, is incorrect. The boys were likely as drunk as the girl herself.
    As for the issue of consent, for the boys to have realized the girl did not consent she would have to say “no” or physically fight back against the boys.
    I have yet to read otherwise, but this could simply be a case of a girl who made a really stupid mistake and, due to the influence of alcohol, chose to have sex with one or multiple boys. Due to the negative reputation that such an act would create, she may be claiming rape as a way to clear her name – clearing herself of any responsibility in the incident.
    I remember my sophomore year at college when my school published a very clear set of standards regarding alcohol an sex. It directly stated that if a boy and girl, both equally drunk, were to have sex, is was the boy’s responsibility to ensure that the girl was of sound mind to agree to sex. Otherwise, the boy would be found in violation of the school conduct code if the girl later claimed that she was too drunk to make a good decision.

  30. Wayne Martin says:

    > Two points – the alleged “rapists” were probably
    > quite sloshed also… so the idea of predatory men
    > scheming to take advantage of a defenseless girl,
    > as you seem to have proposed, is incorrect.
    > The boys were likely as drunk as the girl herself.

    This is from one of the recent articles on this incident:

    “This poor girl was not moving. She had vomit dribbling down her face. We had to scoop vomit out of her mouth [and] lift her up. Her pants were completely off her body,” says Chief Elk. “She had her one shoe one, her jeans were wrapped around one of her ankles and her underwear was left around her ankles. To the left of the bed there was some condom thrown on the ground.”

    “When they lifted her head up, her eyes moved and she said ‘I’m sorry,'” says Grolle. “One of the guys who was in the room said ‘This is her fault. She got drunk and she did this to herself.'”

    From another article:

    Sources have told the Mercury News at least two players who weren’t involved in the alleged rape in San Jose on March 3 but went into the room as the alleged sexual assault occurred may be given immunity.

    And one of the students interviewed by the Grand Jury claimed: “I don’t drink or smoke.”

  31. I get it now.

    Drinking, partying, and the like are all bad, bad, very bad things, so bad in fact, that any CRIMES commited against you while in the course of such bad, bad, very bad actions are the just rewards you have earned because of your terrible actions, but only if you happen to be female, those oh so devious of creatures, full of apple-tempting sin, who entice men into all manner of lewd acts by showing up, vomiting on themselves, and laying very, very still. What this is really about, clearly, is the desire to punish. To punish those who engage in social behavior with which we disagree, to make them culpable in the very criminal acts commited against them, to exercise our dislike of their choices by absolving their attackers of responsibility, just one step away from throwing the victim into a lake to see if she floats.

    I guess my only questions is this: Can you still buy buckled shoes, tall black hats, and various scarlet letters in the stores, or do you have the womenfolk make them on the loom?

  32. (I’ve attempted to post links to the research cited below three times now, but my comments won’t appear.)

    It’s not a matter of sin, it’s a matter of statistics. An abundance of research demonstrates that such sexual assaults (as well as all manner of other dangerous and/or idiotic behavior) are clearly linked to the use of drugs and alcohol. Statistics also demonstrate that if I step in front of a moving train, I will likely die. That’s why I don’t step in front of trains. It has nothing to do with trains being evil.

    I’m a libertarian at heart. Feel free to put whatever you’d like into your body. I also believe that all persons should be prosecuted for the crimes they commit against the rights of others. Clearly, rape is an abhorrent act, and rapists must be punished.

    At the same time, when we know that approximately two-thirds of such sexual assaults occur because one or both of the parties involved have been drinking, and that in nearly *all* cases the assault is committed by a friend or acquaintance of the victim, I can’t understand why the hell anyone would place themselves in such circumstances. And I am absolutely—and rightly—skeptical when people feign astonishment after the fact.

    Again, I feel as though I am beating a dead horse here, as common sense seems to be out to lunch on issues such as these. Still: when you play with matches, you can’t pretend you didn’t realize you were going to burn the house down.

  33. Mark Roulo says:

    It doesn’t seem relevant to the discussion on this
    thread, but if anyone cares, the local DA has
    an op-ed in the Sunday SJ Mercury explaining why
    she isn’t pressing charges:
    http://www.mercurynews.com/opinion/ci_6000299?nclick_check=1

    Short version: Because of the details of the specific case, the
    DA doesn’t think she can get a conviction.

    -Mark Roulo

  34. Cardinal Fang says:

    And I am absolutely—and rightly—skeptical when people feign astonishment after the fact.

    I am not astonished that rapists rape.

    I am, however, astonished that some people on this board believe that a rape is not a rape if the woman was incapacitated. It’s as if the De Anza boys have license to believe that all women are willing to have sex with them, unless the woman says no and hits the boy if he assaults her.

    This is a mixed up view. There are a vanishingly small number of women who want to be gangbanged by the De Anza baseball team. Therefore, absent any positive sign of consent from a woman, it’s a safe guess that she doesn’t consent, and that if the baseball team nevertheless has sex with her, it is rape.

    This idea that a man should assume yes unless he hears no is backwards. Guys, face it. Hardly any women want to have sex with you. You have to assume that any given woman does not unless you get a positive sign that she does. Being unconscious does not count as a positive sign.

    J, you talk of common sense. Surely you and I agree that there are bad people in the world, and it is sensible to try to avoid being the victim of a crime. However, if a crime nevertheless occurs, perhaps because a teenager is foolish, surely we also agree that the criminals should be apprehended and tried, if possible?

    After all, if a teenage boy leaves the family car in a dangerous neighborhood, no one will be astonished if it’s stolen. Nevertheless, the police will still try to catch the car thief and get the car back; they won’t just say, “Oh, you deserved it. Your car is gone forever, too bad.”

  35. SuperSub says:

    Cardinal – the question at hand is your use of the term “incapacitated.” Does that mean that she was simply unable to make a good judgement because her higher-level thinking skills were affected by the alcohol? Or, as it seems you are suggesting, was she pretty much unconcious?
    There is also the question of her state when the act began. Did she shift from simply being incapable of intelligent thought to unconciousness during the actual act of sex?
    Am I getting nitpicky? Yes, because that is exactly what our judicial system is about. My guess is that the prosecutor couldn’t address these and other necessarye lements to a successful prosecution, and just decided to not charge them. Perhaps if something pops up later they will be charged.
    And remember, we know few true details about the incident, and probably even a few incorrect ones. Rushing to lynch them would be unjustified.

  36. Cardinal Fang says:

    Super– You make a very good point. When I say incapacitated, I mean someone semiconscious and unable to talk.

    I agree that *if* she was initially drunk but still conscious and talking, in a state where she could make decisions albeit bad ones, and she made the decision to consent to sex but then became incapacitated, then there was no rape (although I would still think the men involved were disgusting to use an unconscious woman as their private blow-up party doll).

    That is not, in my opinion, what happened. I understand that the DA might not be able to prove this in court, and therefore, she might be justified in not charging the men. That is, I believe both that a crime occurred and that the DA probably at this point can’t prove it.

    What I’m reacting to here is some people’s apparent belief that it is acceptable to have sex with someone who is semiconscious and unable to resist– not someone who drunkenly agrees to a sex act that, sober, she would have rejected, but someone who is in no condition to either agree or disagree. Cal, upthread, appears to have this view. I wonder if people with this belief think it applies to both sexes. If a young man is drunk and unable to resist, is it all right to have sex with him, or is it only acceptable to use a girl as your party doll?

  37. SuperSub says:

    The problem with determining that a woman, or man, can’t resist can be difficult if you are also drunk. Often, the acceptance of kisses is often a sign of acceptance for sober individuals. Later, as hands start to wander, acceptance is often displayed simply by not rejecting the advances.
    If the woman (or again, man) is in too much of a daze to respond negatively, the instigator could very well mistake that for acceptance, especially if they are also under the influence.
    There are cases where the individual is obviously passed out and in those cases the charge of rape is obviously justified. All I am saying is that there is a gray area where, as a society, we cannot realistically expect individuals of either sex to run a sobriety test on others prior to intercourse.

  38. Cardinal Fang says:

    I don’t buy the idea that drunkenness excuses what would otherwise be a crime. It’s the drinker’s responsibility to drink only as much as he can handle. If he can’t behave himself with women when he’s drunk, he should either not drink, or stay away from women.

    Nobody buys, “Oh, he was drunk, so that means it’s OK that he ran over three nuns and a baby,” or “Plane crash? Not the air traffic controller’s fault, he was drunk,” or “But he was drunk when he beat up his wife,” or “Hey, no problem, the CFO was drunk when he embezzled the money and lost it all at Vegas.” It’s no different for a rape. There is one standard. Drunk or sober, it doesn’t matter, you can’t have sex with someone who is incapacitated.

  39. This topic is far too loaded an issue (pun most definitely intended). Double-standards are flung left and right. Since no one — man or woman — seems to be able to hold his/her alcohol, another attempt at prohibition might be in order. 😛

  40. However, if a crime nevertheless occurs, perhaps because a teenager is foolish, surely we also agree that the criminals should be apprehended and tried, if possible?

    I’ve addressed this issue directly. For instance: “I also believe that all persons should be prosecuted for the crimes they commit against the rights of others. Clearly, rape is an abhorrent act, and rapists must be punished.”

    After all, if a teenage boy leaves the family car in a dangerous neighborhood, no one will be astonished if it’s stolen. Nevertheless, the police will still try to catch the car thief and get the car back; they won’t just say, “Oh, you deserved it. Your car is gone forever, too bad.”

    Depends on a whole variety of factors: the car; its value; the city; the local crime rate; the competence, integrity, and initiative of the police force; etc. Stolen cars get relegated to the “lost cause” file by overworked police all the time.

    Guys, face it. Hardly any women want to have sex with you.

    You’re generalizing. Depends on the man. Plenty of us are doing very well, thanks.

Trackbacks

  1. […] It should be remembered that the case against the lacrosse players was sufficient for a grand jury to issue indictments. Grand juries do not indict unless there is sufficient evidence to prove the guilt of the defendants. Also, the case was thoroughly investigated by the Durham Police Department which submitted it to the D.A.’s office. This was a typical case pursued by law enforcement. What was not so typical was the opulence of the defendants combined with the powerful forces arrayed on the behalf of the lacrosse players. As a result, this was a defeat suffered not only by Mike Nifong, but by law enforcement in general. The Duke case already has affected the way that law enforcement agencies across the country handle the problems posed by jocks such as in the De Anza College baseball team case. […]