Dollars to donuts he's afraid to prosecute after what happened at Duke.

this totally ruined my happy friday morning mood.

i think blucas is probably right. which is really depressing if the Duke fiasco means college athletes are suddenly exempt from rape charges.

I wrote a very, very angry rant about this yesterday. It pretty much ruined my day, too.

Blucas, the DA is a woman. Which kind of makes it even worse.

I commented about this on Cara's blog, but I can't believe this happened nearly two months ago, in my freaking hometown and I haven't found out about this until yesterday (I'm away at college).

I'm now ashamed to live in Santa Clara County, not to mention that nearly everyone in my area takes classes at De Anza, and the players got suspended for what, like a week?

Gah, I feel like breaking something.

Supposedly the problem is that neither the alleged victim nor the cooperating witnesses could identify the attackers. Given the AV’s state and the witness’s vantage point, this makes sense, although one would think that DNA evidence could solve that problem. Also, I believe the defense claimed the sex was consensual. I can’t imagine how that claim could be made without revealing who participated in said sex.

This is a very strange case indeed. Does anyone have anymore information on this? There has been a lot of discussion about this at LieStoppers (ex. supposedly two players testified at the grand jury proceedings for immunity), but precious few confirmed facts.

Good on the soccer team members who stopped it though, and who are not afraid to come out and say, "Hey, it was wrong and we tried to stop it."

I just read this: One of the eight suspended baseball players, pitcher Chris Knopf, told the San Jose Mercury News on Monday: "From the beginning, I kind of felt like it was a witch hunt and the De Anza players were victims, and not really this girl."

Holy. Fucking. Shit.

You remember when the botched OJ Simpson case caused everyone to stop prosecuting murders nationwide? Oh shit, neither do I.

I assume the DA is elected. Hint hint.

Okay Shyva, I totally want to beat that kid's head in with a baseball bat.

violenceiswrongviolenceiswrongviolenceiswrong

But violent fantasies aren't. So carry on.

the press on this case doesn't make sense. Can anyone link to other articles? I don't undertand what was wrong with the evidence.

I assume the DA is elected. Hint hint.
That's what gets me. She was elected, but our area is quite liberal and progressive. I mean, it's the South San Francisco Bay Area for chrissakes. I'm just flabbergasted.

And Cara, I want to beat that kid's head in with a baseball bat too.

Well duh, it's athletes. We should know by now that if you are a player on a college team with a "great beautiful future" ahead of you, you can get by with rape. Happened at Murray State.

frog queen, I've looked, and I can't find ANYTHING that gives an answer as to what the "lack of evidence" was. Unless things have changed in the last 16 hours or so, the DA won't talk.

I don't undertand what was wrong with the evidence.
No one understands. The DA won't elaborate on what is wrong with it, the office hasn't given anyone any explanation other than that there's not enough evidence to prosecute.

That's why a lot of people are pissed off.

You can read a lot of coverage at http://www.mercurynews.com/ (it's the San Jose Mercury News website -> awesome newspaper by the way), but you may have to register to read their articles.

It looks like DNA was collected from some pary attendees, but I see nothing in either article to indicate that there was a match to evidence collected from the AV. If there are no DNA matches and no witness IDs, then I can see how the case would be dropped.

I should add that the consent defense is particularly strange here since the AV is under-age.

I don't have anything new to add, but it does seem from my vantage point that someone is getting away with some really bad stuff. There may be something I don't know (maybe they can't figure out which players to charge?) but the whole thing just plain stinks.

Yeah, that's right she did it to herself. She got a boner and wanted to rape someone who was unconscious and covered in vomit. Yeah, she did *that* to herself.

This is even more depressing than the UK barrister case.

And hello, if the players were suspended, is that not an admission that they did something wrong?

"Blucas, the DA is a woman. Which kind of makes it even worse."

ah, sorry, I saw the quote from "David Tomkins" and got mixed-up.

"Well duh, it's athletes. We should know by now that if you are a player on a college team with a "great beautiful future" ahead of you, you can get by with rape. Happened at Murray State."

Also remember, the players have be white. A similar thing happened my senior year of college involving some black football players (on a top 25 team) and a white girl, and believe you me, Fox News didn't jump to their defense.

my heart hurts. maybe i am going to go to law school after all...

i think that high-profile college athletes have been getting away with shit since way before the duke case, though that's clearly affected the way the public thinks about this kind of thing. last year at my school (McGill, in Montreal) a rookie football player brought a complaint against the team because, as part of their initiation rituals, they went to sodomize him with a broomstick. he freaked out, it didn't happen, he was scared shitless - 30 football players crowded around you, unbelievable. all that happened was the players got suspended for a single game and a bunch of people wrote letters to the campus paper saying "it's a guy thing, chillax."

bullshit

I'm not surprised at all.
But then, I went to CU-Boulder where athletes do this kind of thing and get away with this on practically a weekly basis.

When a girl is drunk the defense will tell a story about how the guys couldn't have possibly known that she didn't want it (and that she probably did want it), and the girl will be unable to testify in her defense because her memory is patchy and "unreliable."

The impunity infuriates me.

Blucas, were they guilty? Or is somehow more fair to let some rapists get away with it when others do? Because if you're calling that victim a liar, that's a feminist issue.

I'm not calling her a liar. They were probably guilty, but the charges were dropped for the usual bullshit reasons (inconsistencies in her story, she didn't run to the hospital right away, no other eyewitnesses).

It just hit me during the whole Duke thing that here was a rape case that mirrored it in a lot ways, at a sports program MORE prominent than Duke's lacrosse team, but it didn't even make the national news.

Well, frankly, it would have helped if you had said so, because it would appear that there were other issues at play than their race. That their case didn't even get national attentions says to me that athletes get protected by whatever reasons for whatever reasons. I don't think the news media should defend anybody accused of rape because that usually means they're attacking the victim.

Fair enough. My memory on it's spotty, since unlike the Duke case I don't think most of the details got released to the public. I should probably re-check such things before running my mouth about them.

Yeah, because you said, "the athletes have to be white" and then went on to mention a case where the athletes were black and got off. I want all rapists put away, and Faux News doesn't share that concern at all; they think white guys are the most unjustly-maligned group in the world.

Yeah, my only real point was that it just goes to show that it's about "our boys" for the likes of them, not about "justice."

But I should shut my mouth about such things, since I just re-checked and apparently it *did* end up going to trial, much later, after I had already graduated and left. Strangely, I can't find anything on the outcome.

Re-reading the "bitch deserved it" letters-to-editor in my alma mater's school paper was pretty vom-inducing, though.

Yeah, the part where she is SEVENTEEN YEARS OLD boggles the mind!

And thank god for smart soccer players--the only silver lining in this story. Not to put the onus on anyone other than the rapist himself, but it is so important for us women to look out for one another, and be bold in speaking out when we see something fucked up going down.

This is just my thought, and I have no idea if I'm right. But I've seen things like this before. Because I do criminal defense work, I've seen a lot of rape cases up close, from the defense side. One thing I often find is that prosecutors treat the alleged victims like shit.

In Alameda County just this month, a city-councilman's son pled guilty to being a serial rapist of prostitutes. One of the victims was only 15 and mistaken for a prostitute (based on her dress and the area she was walking). The DA's office was great with these women. They protected them. They believed them. Despite the fact that they were drug addicts who sold themselves to support their habits. They didn't judge them and they supported them.

Now, let's say you have DNA evidence, eyewitnesses, an underaged victim so intoxicated she was taken to the hospital, plus a grand jury with subpoena power. Why wouldn't you prosecute? One reason is to avoid the messy political implications of doing so, and in the wake of the Duke case such caution is understandable. Of course this was discussed.

And I'm sure you imagine the impact this had on the victim, who needs to work closely with prosecutors.

The sad truth is that prosecutors revictimize these women, particularly when they are untrained to deal with the aftermath of rape. My guess is that this is not going forward because the victim will not cooperate with the prosecutors. This case is dead without the victim's testimony, and if she doesn't like how the prosecution's treating her, she won't put herself through that.

Funny how those letters come from all different kinds of people. It's not just rapists we have to worry about; it's the sympathizers.

I wish I believed in hell.

Rape cases are notoriously underprosecuted -- first because of sexist notions and misogyny. But second, because of how prosecutors are rewarded and praised. Prosecutors receive advancement and are re-elected based on conviction rates and rape cases (again because of sexism and misogyny) have low conviction rates -- thus prosecutors who may not harbor bad feelings (I have no idea of this one does or does not) are fearful of taking on a case because they do not want to affect their conviction rate.

I belive that rape cases should be separated out and not included in conviction rates.

What happened at the grand jury? The grand jury decided not to indict?

I also think we need to be very careful about thinking this is about white privilege. Of course that's an undercurrent, but more important is how our criminal justice system treats the victims of sexual assaults. Our society has done a decent (not great) job of protecting victims from the media and inappropriate defenses. But what we've overlooked is how they're treated by the government---meaning the police officers and other first reponders and, later, by prosecutors.

The tone of a prosecutor's interview with a victim is vitally important in securing the victim's cooperation. Going through a rape prosecution is a very very difficult experience that can be as emotionally devastating to a victim as the initial assault (seriously). If the prosecutor is unprepared for this harsh reality, the prosecutor may lose the victim's cooperation and, by extension, the case.

Perwinkle, according to Twisty's summary of the case, the three young women who witnessed the incident weren't called to testify before the grand jury.

Just some random facts I've gleaned from various coverage here in the Bay Area, in answer to questions posted here:

The eyewitnesses said in their TV interviews that they saw at least one discarded (presumably used) condom on the floor in the room, so that may complicate the issue of DNA evidence, although logic tells me that pubic hair should still have been present at the scene or on the victim's body.

The eyewitnesses were not called to testify to the grand jury, which may have something to do with the decision not to indict. I have not yet seen an explanation as to why they were not called.

From the eyewitnesses' accounts on TV, I would guess that they would be able to identify the man who answered the door and slammed it in their face, but not who was actually participating in the attack at that moment. They then broke down/shoved their way through the door, but they said when they got into the room, all the men were focused on escaping, which may be what prevented strong identification.

The Santa Clara County Sheriff has even spoken out against the prosecutor's decision, saying that it appears that "somebody got away with sexual assault."

Finally, local media has reported that the victim has since moved out of the county, although I don't know if this is a result of dissatisfaction with the prosecutor, or whether it's had a direct effect on the decision not to prosecute.

The DA's silence on this is mystifying and infuriating. The idea that a drunk-to-the-point-of-unconsciousness 17-year-old is capable of consenting to anything, let alone sex with a half-dozen or more men, is disgusting and wrong.

Yesbut, unfortunately, law school's just as bad as the real world. A certain devil-spawn maggot in my class raped one of my best friends. I'm 95% sure he's a member of the New York bar now.

Supposedly the problem is that neither the alleged victim nor the cooperating witnesses could identify the attackers. Given the AV’s state and the witness’s vantage point, this makes sense, although one would think that DNA evidence could solve that problem.

This is one thing I find really frustrating: my understanding is that in most crimes (burglary, mugging, battery, etc) when the cops/DA can't find the assailant, they look for them. When someone's house is burglarized and the owner isn't there to see exactly who did it, the cops don't usually just give up and say, "Well you didn't see anyone do it and can't identify a burglar, so we don't have any evidence that it even happened."

No, they do what makes the most sense: they 1) assume the victim was actually victimized (i.e. that a crime did actually take place), and 2) at least try to figure out who did it. I've never heard of a crime where so much of the burden of proof is on the victim, or where the victim is required to do so much of the sleuthing themselves!

yesbut: a bunch of people wrote letters to the campus paper saying "it's a guy thing, chillax"

Sadly, this may be closer to the truth than any of us would like to believe. Ever hear stories about what goes on at English boarding schools for boys? Those stories aren't made up (or so my friends say).

Here is something we can all do-write an email to the DA Dolores Carr. I wrote her on Wednesday and plan to make several phone calls as well.

Contact info:
Office of the District Attorney
70 West Hedding Street, West Wing
San Jose, CA 95110
Phone: (408) 299-7400
Email: webmaster@da.co.santa-clara.ca.us

Website http://www.sccgov.org/portal/site/da/

Her numbers are: 408-299-3099 and 408-299-7500.

Please check out iblamethepatriarchy.org for a really great thread about this whole thing.

Also, what can we do for the victim? And to support the eyewitnesses? Anyone have any ideas? I'm just so outraged, I've already emailed about 40 people about it. I think we really need to act, as a feminist community, in this case.

It sounds like the Sheriff really believes that this was a crime. I'm going to try to find contact info for the Sheriff-sounds like he would be a good person to contact, to let him know that we support keeping this case open.

Anyone have other ideas? The DA's silence is very telling. There is no way that this case shouldn't have at least gone to trial. At the very least, the eyewitnesses should have testified to the grand jury.

I know nothing about law, but this is exactly what happened to a girl in my high school. Raped by three boys in our school, but since they were drinking and hanging out, the DA would not press charges. Wouldn't even try the case. I still don't even know who those rapists are.

That is fucked up and my heart goes out to the young woman. And the "she did this to herself" absolutely breaks my heart.

I've never heard of a crime

yeah, I meant I've never heard of a crime other than rape where so much of the burden of proof is on the victim,...

Heartbreaking and infuriating. I can not believe that some of the men in that room didn't come forward to tell the truth about what happened and identify who was in that room.

Yesbut, unfortunately, law school's just as bad as the real world. A certain devil-spawn maggot in my class raped one of my best friends. I'm 95% sure he's a member of the New York bar now.

Did she report it? I would think that a felony charge (even if not prosecuted or convicted) would be enough to flunk C&F.

If it makes you feel better, NY waits until students have passed the bar exam to do C&F (as so many people don't pass, it saves them a lot of time). So he could have passed the exam, gotten his name published, but not gained admittance based on C&F.

No, oenophile. Some of her own friends sided with him. I think that kind of turned her off of, you know, sharing it with COMPLETE STRANGERS who would view her with suspicion.

But I love how quickly it becomes a question of, "well, what did SHE do?" rather than "what is wrong with our educational system that people can commit rape and become some of the most powerful members of society?"

The DA Dolores Carr stated that there was "insufficient evidence" to pursue any charges. Perhaps we should take Dolores at her word - there wasn't enough evidence to prove a crime occurred. It could be that something happened and some crime of some sort was committed but they just can't prove it. On the other hand, it could be that young men were once again falsely accused. Scott Righetti, one of the students at the party stated "Someone can lie about you and ruin all the good decisions you've made in your life with just one comment.." and also stated that "the whole situation came out in the media completely, completely different than what actually occurred." Sounds eerily similar to the Duke Rape Hoax and if there is anything we have learned from that case it is that media reports can be wildly sensationalized, inaccurate, and often fabricated.

And the eye-witness accounts of three young women who didn't even know the victim count for nothing in your eyes, SgtYork?

Of course not! What counts is what the young men think!

Hey Sgt. York: go to hell.

Sorry ladies, I hope that you'll excuse the indiscretion and realize that that's the heavily edited/censored version of what I WANTED to say.

Yeah Sgt. Stupid-why don't you go get drunk and have "consensual" sex with 8 men, ok? You have no clue. STFU.

Insufficient evidence to prosecute is one thing. What kills me is that despite the eyewitness acoounts, the age of the victim, and her clear inability to consent to anything at the time of the incident, this is still an "alleged" rape. Seems to be pretty clearly a rape, regardless of the evidence against the alleged assailants.

The Law Fairy: I certainly didn't mean that I expect a more enlightened class of people in the law profession... quite the opposite, actually. Moreso that I'd like to *be* a more enlightened person in the law profession.

And now that I've exposed myself as being embarassingly naive, I'm going to go hide.

Thank you for the info, buggle, I'm going to post it on my blog.

Oh yes, of crouse Stg. Rape Apologist. We all know how irrational and deceitful women are. I'm sure the three women who broke down the door to help were just lying. And the boys holding the door shut, swearing at the three women and telling them it's all the girl's fault for getting drunk - that's totally the behavior of innocent, wrongly accused people.

You clearly learned different lessons from the Duke case than I did. I learned that if you're female, nothing that happens to you is as important as three honky rich boys being inconvienced for a few months. Esp not if you're a black stripper who hasn't had a perfect and pristine life.

P.s. It was Scott Righetti's house that hosts the parties in which at least two young women have been gang raped. SO maybe he has a vested personal interest in pretending he didn't do anything wrong? Nah!

he's also the felony hit and run guy. http://www.mercurynews.com/ci_5472992 What an upstanding young man! Clearly he's telling the truth and has never done anythign wrong! How could such an upstanding young man be party to at least two gang rapes- he's so honest and law abiding! (if victims can be blamed, so can worhtless pigs like Righetti)

Yesbut, no need to feel embarassed :) I myself once believed in the law as a great venue for change, until I realized that we ARE the people in power, meaning we're part of the problem (because, clearly, there is a problem). "We" meaning, of course, conservative lawyers who are overwhelmingly rich, white, male, and heterosexual.

As with everything, there are obviously exceptions. But fuck if it isn't hard to become an exception.

Hey there-I have an online buddy who was raised in this area-and she has several contacts there, including people in the police department. I'm pretty new to this activism stuff-I vote and send emails, but I'm feeling the need to do a lot more. But, I have no idea what to do-can someone help? What kind of collective effort can we make here?

And another thing, rape apologist asshole:

How dare you profane the name of Alvin York?!

If that man hadn't done what he did, dozens of his fellow soldiers would have died taking that German position. How dare you sling your rape apologist mud on his good name? Fuck you. Get lost.

I read twisty's post and googled a few more articles but still cannot find anything that says DNA found on the girl matched any suspects. Does anyone know if there was a match?

Did they even take DNA samples from all the men at the party?

DA Dolores Carr has extensive experience in prosecuting sex crimes. Sensational media hype notwithstanding, after reviewing the available evidence including police statements of the other witnesses at the party and the grand jury testimony the District Attorneys Office came to the conclusion that there was insufficient evidence to pursue any charges. Furthermore, DA Dolores Carr defended her office's decision not to pursue charges stating, "We don't make decisions based on public outrage or outcry," If you folks simply want to lynch innocent people for sport then get your rope but I'm inclined to trust an experienced prosecutor rather than wild stories in the media.

Looks like we have a lovely rape apologist on the thread. Sgt. Stupid-didn't we already tell you to shut the fuck up? Or did you need me to spell it out for you?

You don't have any concern for this 17 year old girl who was so drunk she had puke all over her? How do you think she gave consent, when she was passed out? Explain that to me. How was this consensual sex?

Asshole. People like you is what makes this world so damn scary. You are probably one of the rapists yourself. Pathetic loser.

Wild stories in the media-what about the statements of the three eyewitnesses who had to break down the doors to rescue the victim?

Huh? Huh? Well, explain it to me already? How can this be anything other than rape?

Right. Because the justice system always does exactly the right thing as regards rape victims and rapists.

Yeah, I always trust rape apologists over rape victims. Hmm, DA vs "wild stories?" How about eye witnesses vs rapists? Or misogynist culture vs rape victim?

Go crawl back under the rock you came out from.

[Also, I keep trying to send a trackback to this entry, but it seems like the URL is broken.]

I humbly submit that this may be a good time to put the troll food back in the pantry. This one's not nearly entertaining enough to be worth it.

;)

In California, all sex with someone under 18 (male or female) is criminalized. See CA penal code 261.5 which makes sex with a person under the age of 18 a misdemeanor, unless one person is more than three years older than the other, in which case it is a felony. Since she was passed out, sex with her was also rape of the non-statutory kind. See CA penal code 261(a)(3)-(4), which deal with persons who cannot resist due to an intoxicating substance (which the rapist knows of but did not have to administer) and who are asleep or unconscious, among other things.

Does anyone else find it amusing that he keeps referring to her as "DA Dolores Carr" and in no other way? Or am I just tired because it's late afternoon on the Friday before a long weekend?

I heart facts.

I'd suggest anyone in the San Jose area (or just anyone, really) write an angry letter to the San Jose Mercury News about their coverage, too (see Twisty's post).

"Sensational media hype," my ass.

I would love to see people in that community post the names of all the guys on the team saying all the men on this list are either rapists or protecting rapests. Let's see if the uninvolved guys will continue to protect rapists.

Hey, Sgt. Dork. You still haven't explained why such an experienced DA would refuse to call the eyewitnesses to the grand jury indictment hearing? Those hearings are exclusively for the prosecution to present evidence and WITNESSES to support an indictment. I'm willing to bet that you, too, don't know any more than we do regarding that fact. And anyway, don't you have a men's rights list where you and your fellow knuckle-walking, mouth-breathing neanderthals can grunt and pound your chest about us evil womminses?

I wrote a letter to the DA and also the Sheriff... Thanks to 'buggle' for providing the DA's info! For those interested, here is the Sheriff's info:
Sheriff Laurie Smith
Santa Clara County Office of the Sheriff Headquarters
55 West Younger Avenue
San Jose, California 95110-1721
Email: so.website@sho.co.scl.ca.us
Phone: (408) 808-4900
Phone: (800) 211-2220
http://www.sccgov.org/portal/site/sheriff/

You're right, Law Fairy. *puts the troll food back on the shelf* I've got to stop commenting after a migraine.;0)

Everyone here is making the assumption that the victim wants to pursue the case at this time.

I'm 99% positive that's why they're not going through with this: they don't have the victim as a witness.

The psychological impact of a gang rape on a 17-year-old girl is incalculable. The pressure she would be under from what would certainly be a lengthy trial and extensive investigation of her background would also serve to revictimize her.

She's moved away from the area. Some of her friends don't even know where she is.

We need a standard of care for rape victims that extends beyond the hospital room and into the District Attorney's office.

The weird thing about this is when Dolores Carr was a judge (if I remember correctly, and I think I do), she was so hard on Domestic Violence cases that she was "papered" by the public defender's office so she couldn't hear them any more. (Being "papered" means that every PD with a DV case who gets her as a judge premptorily challenges her so that eventually, she is assigned to non-DV cases.) (I may not have a friend in the Diamond Business, but I do have friends in the PD's office.)

"Did they even take DNA samples from all the men at the party?" - Buggle

I don't think so. I believe the DNA they were able to collect was from limited sources and was not voluntarily submitted.

You can google Dolores Carr and find an email for her.

More on Ms. Carr:

Biographical Highlights

* Occupation: Deputy District Attorney, Santa Clara County
* Supervisor, Sexual Assault Unit, D.A.'s Office
* More than 14 years experience prosecuting criminals in court
* Private practice experience: general civil and litigation, criminal defense
* B.A. in Spanish with Honors, University of California, Berkeley, 1975
* J.D. Southwestern University, 1980
* Admitted to California Bar, 1980

Click here for More Biography
Top Priorities if Elected

* Fostering respect for the judiciary
* Reducing delays
* Supporting the use of technology in the courts

Click here for Political Philosophy

Key Endorsements

* Citizens for Law and Order
* San Jose Police Officers' Association
* San Jose Mercury News

If in fact, this is fallout from Duke, sadly, it plays right along into what people have been saying, which is, how important it is for feminists to take a strong stand against false accusations, and for free speech.

J Pierpont, if this is in fact fallout from Duke, it proves what feminists have been saying for a long time now: rape is not viewed by society as a "crime" the way other violent crimes are (with the exception of DV, which is also underprosecuted). It's treated differently, lesser, because of society's fundamental lack of respect for women. As norbiz noted (in his characteristic hilariously sarcastic manner), why didn't we see a reluctance to prosecute murder after OJ??

It's treated differently, lesser, because of society's fundamental lack of respect for women.

I think that society believes, as is shown in the comments of the mojo article, that rape is treated differently, as worse than other crimes. That's why Nifong felt entitled to abuse the process and deny the students and the victim their rights and their rights to a fair trial.

If us feminists want rape to be continued to be treated as a worse crime, to the point where certain expected rights of the accused can be set aside (such as a complete examination of the history of the accuser, or having the name of the accuser revealed), than it is incumbent on us feminists to make sure that false allegations are not encouraged in our system, and to take the claims of false allegations, and the harm they do their victims very seriously.

certain expected rights of the accused can be set aside (such as a complete examination of the history of the accuser, or having the name of the accuser revealed)

I'm not sure which jursidiction you're in, J Pierpont, but assuming it's a US jurisdiction you're almost certainly incorrect. I'm particularly interested to know in what cases you think a "complete examination of the history of the accuser" is allowed... what kind of history? In every case? This simply isn't true. In general, impeachment of ANY witness is allowed, including in rape cases, by using the witness' history as it pertains to that person's propensity for honesty. But let's say we've got a murder case. You think courts entertain evidence about the victim's "complete history"? Some history, sure (e.g., whether or not the person knew the defendant -- AS A WAY OF ESTABLISHING THE DEFENDANT'S ACCESS TO THE PERSON IN ORDER TO PROVE THE DEFENDANT MURDERED HIM/HER), but you're being incredibly vague in a way that makes me wonder about the sincerity of your comment. I do know that ANY evidence, if it's more prejudicial than probative, doesn't make it to the jury. This is in every case, not just rape.

Similarly, defendants have the right to face their accuser in ANY case -- whether or not details of a case are sealed from PUBLIC disclosure is a separate issue (and one that's addressed on a case by case basis), but rest assured the defendant ALWAYS has the right to face his/her accuser. The only exception is that I believe some jurisdictions allow for questioning to be done by closed circuit television in the case of young children testifying against persons who are accused of harming them. But not even every jurisdiction has accepted this rule (or they may have all rejected it... memory's a little hazy).

Do you REALLY HONESTLY think false allegations are "encouraged" in our system??? I mean... where on earth do you live that you would think that?

last first, then first last.

Do you REALLY HONESTLY think false allegations are "encouraged" in our system??? I mean... where on earth do you live that you would think that?

I think that's a simple fallout from micro-economics, engineering and science.

No one is explicitly encouraging false allegations to be made.

There are two types of measurement error, false positives and false negatives. When you try to reduce false negatives (unreported/unprosecuted rapes), you will end up with more false positives (false allegations of rape), unless you take explicit care in your measuring system (police, da, courts, press, ....)

Benjamin Franklin and others said it was better for 100 guilty to go free than to imprison one innocent. That's our sense of justice here.

So when we attempt to drive false negatives to zero, we need to be very careful to eliminate false positives as well.

Ignoring, trivializing, or rationalizing false positives in the name of driving false negatives to zero will inevitably encourage more false positives.

That's what I mean when I say that micro-economics (incentives), engineering (control theory and positive and negative feedback), and science (measurement theory) all conclude that we need to take false allegations very seriously.

First things last.

You're the law fairy, not me. I had thought that the issue of rape shield laws was to keep histories that might otherwise be used in other defenses out of the court to protect the victim. I guess I don't understand how it could be that if, as you say, these histories would not be admittable in other courts anyway, than I guess I don't understand how or why rape shield laws came into effect or why they are necessary. But I truly don't get much about the law, and you are the law fairy, so I concede the point.

Benjamin Franklin and others said it was better for 100 guilty to go free than to imprison one innocent. That's our sense of justice here.

As long as you're white, and as long as the crime is rape.

“I would love to see people in that community post the names of all the guys on the team saying all the men on this list are either rapists or protecting rapests. Let's see if the uninvolved guys will continue to protect rapists.� - Belle O'Cosity

That would be a good way to be sued. There were supposedly around eight guys in the room, of which some may not have been on the team. How could you justify smearing the whole team?

“California DA won't prosecute rape case; says eye witnesses and DNA are "insufficient evidence"� – Jessica

I am still waiting for evidence that the suspects’ DNA was found on the AV. Until then, I will read this headline as:

California DA won’t prosecute rape case; says eye witnesses who can’t identify an assailant and DNA which does not match any suspects are “insufficient evidence�

That actually sounds pretty reasonable. Go figure.

I think it is reasonable to think from the information we have so far that the girl was raped. I see no way, however, to tie that crime to any particular person.

Law Fairy: Could everyone in the room be charged as accomplices even if there is not enough evidence to single out the actual rapists?

Noname--problem--none of the articles say that the insufficiency of the evidence is because the eyewitnesses/DNA evidence does not identify the perpetrator.

That is quite a logical leap to say that because Carr is dismissing the case for insufficient evidence that it is a certain type of insufficient evidence. Plus, there is a difference between saying charges won't be filed against certain suspects, and that charges won't be filed AT ALL.

Plus, if there is DNA evidence, it was stautory rape, since she is under 18. If she was unconscious, and it seems that there is good evidence that she was, it is a felony under California's forcible rape statute. (See my post above.)

As to being charged as accomplices, there is a really depressing movie with Jodie Foster and Kelly McGillis based on a case where men who did not actually rape the victim but yelled encouragement to those who were raping the victim were convicted of felony charges (I think it was solicitation--but am not sure.) So, short answer, yeah. I also saw a case in CA where charges were brought on that theory, although I think the outcome was that the defendant's statements were too ambiguous to constitute solicitation.

Like I said at Twisty's, the real travesty of the Duke case is it helped make gang rape (at least by athletes) tacitly legal, by making prosecuters scared to move forward.

J Pierpont, to be clearer, my point was twofold: 1) you didn't define "histories" very well in your assertion that rape was fundamentally different from crimes, so the comparison was muddled, and 2) deep invasions into personal histories are rarely allowed in criminal cases.

Rape shield laws are a specific iteration of a more general principle that holds in all criminal cases: where evidence introduced for any purpose will prove more prejudicial than probative, it is excluded. Rape shield laws are a legislative determination that sexual histories, as a general rule, meet this criteria. Normally application of the rule is left to the discretion of the trial judge, but rape shield laws provide more guidance (note, as well, that these laws are not absolute, and we in the public often find out about what the inadmissible evidence is, anyway, thanks to an overabundance of sympathy for rape defendants -- such sympathy, by the way, doesn't exist in such large numbers for any other sort of criminal defendant that I'm aware of, and this bears noting)

noname, as for accomplice liability, it's jurisdictionally dependent. I'm a civil lawyer, so I'm not intimately familiar with the specific standards for accomplice liability that may apply in this case.

Also, it's hard to be an accomplice to a crime if you can't prove a crime is committed... for purposes of a civil suit, joint and several liability (the civil equivalent of accomplice liability) would likely attach. For purposes of the criminal suit, I'd need to be more familiar with the specific statutes at issue, and it probably depends on WHAT specifically are the evidentiary problems.

I think the best response to this comes from Trailer Park Feminist: http://trailerparkfeminist.blogspot.com/2007/05/consent.html

She wrote, "How in the world can a seventeen-year-old girl, drunk to the point of vomiting and passing out, ever be considered capable of giving CONSENT to sex with a group of adult male strangers?

"WHY should it be OK for grown men to gather around and take turns penetrating a drunk, passed-out teenager? How could she have possibly stopped them? Why should a situation like that be legal? Why shouldn't these men have to stand up in court and explain why they believe they had the right to gather in a room, block the doors, and stick their dicks in some random, drunk child?

"And why should not knowing that the girl was 17 be a defense? They didn't exactly try to find out for sure, now did they? Why should that be OK?

"A 17-year-old isn't even capable of consenting to drinking alcohol, but somehow she's considered fit to consent to sex with adult men, while drunk?? "

Yup. That's about how I feel too.

The incidence of false rape reports is 2-3% (http://sa.rochester.edu/masa/stats.php) SAME as other crime- but as has been pointed out there is 1) No hoards of sympathizes for the poor, "alledged" carjacker- (I mean, didn't you kinda really deep down WANT to give him your car? You DO let OTHER people drive your car, right? So, why should we believe that you didn't want him to drive it")
2) No immediate suspicion of the victim of crimes like carjacking, mugging, ect.

This doesn't add a whole lot to the conversation (Law Fairy, you are officially my hero :) )
but I had to post up.
I agree with the other commentors that it sounds like the poor woman was tramatized enough that she would not want to risk trial (who would blame her after the circus that was Kobe Bryant, Duke and everything else?). I posit that not only will gang rape by athletes become defacto legal due to now-timid prosecutors as Amanda points out, but that WOMEN will be less likely to bring charges in the first place knowing that they will have to go through hell again in the process. The Duke effect is two-fold. Casual conversation with female coworkers (in 20s) has confirmed this for me- the ones I've talked to said that unless an attack was brutally violent, they would not be likely to persue charges. So not only will gangs of athletes get away with it, the already low reporting rate for date rape will most likely sink lower.

If the public is unable to conceptualize how several men forcing sex on an unconcious girl is rape, how could they possibly consider sex forced on a woman by a boyfriend or a date, rape? Especially if there are no immdidately obvious physical signs of force (i.e. bruises on wrists, face, etc).

Rape is only considered "rape" when the woman is a young virgin and is beaten within an inch of her life by a malicious intruder who forces himself on her after breaking into her bedroom as she knelt in evening prayer.

Whatever.

Ismone, it was the Accused. Very difficult to watch, yes, but a movie that does not hide the brutality of rape.

This may have been said already upthread, but I get so perplexed as to why no one will even concede that a rape occurred (to follow on Flathead / Law Fairy's exchange about proving "accomplices" requiring proving that a crime took place). Did I miss something here? The details of that 17-year-old's presentation (see Elaine's post above) and the witness accounts - how could that not satisfy anyone that a "crime occurred"...that a RAPE occurred. You don't need a suspect or a DNA match to prove that a rape occurred. Isn't there enough evidence that she could not possibly have consented to sex? And as such, couldn't someone who COULD be proven in the room at the time be brought up on solicitation / other charges, even if they couldn't identify the rapists themselves?

And I've said it before but I'll say it again, this is the ONLY crime where the issue of previous false accusations even ENTERS consideration of subsequent, separate accusations, so don't throw that shit around, flathead, like it's a *legitimate* consideration. Oooh, better improve our policing and control of ALL women's behavior, to be sufficiently virtuous and irreproachable, so that ONE future woman can be taken seriously and get justice, because that's what's required in most other contexts, and for other groups of people, too, right? Wrong. Maybe if you substitute "black," or "Middle Eastern" (etc) for woman, that is. Not "white male," though. It's simply not a legitimate argument, and it's sure as hell not a *feminist* argument. It's pretty sad to enter the thread like that while using phrases like *us feminists*, which--um--if you didn't already know, is kind of a dead giveaway that you're full of shit. Whether or not you know you're full of shit is another question.

Bye now.

It's a little higher than two percent.

According to the FBI

Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by state and local law enforcement), the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive (usually insufficient high molecular weight DNA to do testing), about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched� or included the primary suspect. The fact that these percentages have remained constant for 7 years, and that the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate, strongly suggests that post-arrest and post-conviction DNA exonerations are tied to some strong, underlying systemic problems that generate erroneous accusations and convictions

JM, I imagine that if you're smart enough to do research all on your own, you're also smart enough to grasp the concept that A FALSE RAPE REPORT IS NOT THE SAME AS A FALSE IDENTIFICATION OF ONE'S RAPIST.

You see, a woman can be raped and think that someone other than the actual rapist committed the crime. I would imagine that the percentage, assuming that we accept it, would be so high due to the fact that women who are brutalized and badly beaten as well as raped by strangers are much more like to report those crimes than those who are not beaten and know their accusers (because people like you will probably accuse them of lying).

I'm sorry, that should say " . . . and know their ATTACKERS," not accusers.

Nazrafel, if the false rape allegation rape is as low as you say it is, than we should really have no problem taking it seriously.

Up until Iraq, we were proud that though our enemies don't torture, we don't, because we are that good and have compassion for the enemy.

Your url didn't provide a citation of where the 2-3% rate came from. However, there are other studi