Commendable ladies!

From what I've read of this case, the three women witnessed their friend having sex with one or more men, but that not even the woman in question is aware if she gave consent or not. Is this accurate?

Only if you include the fact that the young lady in question was unable to give consent for two reasons: (1) She was seventeen. (2) She was passed out in a drunken stupor and her face was covered in vomit. The women in question broke into a room, getting past the boys who were holding the door closed, and the men in the room ran away leaving this poor girl passed out and half dressed.

Details are important. Sounds a bit worse this way than in your version, doesn't it?

A - did the guys in question know she was 17, and

B - did she consent prior to passing out?

Please understand, I am not defending rape (and it sounds like that's what happened), but neither am I eager to use the legal system as its own punishment to prosecute a case that seems like it will, at best, and in a misdemeanor conviction.

Excuse me, Jeffersonian, but what the hell? It wasn't just that "some slut giving it away" and having reconsiderations, for pete's sake!
These other girls had to FIGHT their way in past male athletes to save her. And that was the second attempt. The first time they were shoved out and told to go away. There were at least 8 people in the room and discarded condoms around her body and she was covered in vomit!
So what part of 'there were multiple witnesses' escapes you? This is not a he-said/she-said, they GANG-RAPED a 17 year old girl. Period. There's nothing about the situation that could possibly EVER have been "misinterpreted" by those rapist bastards.
Wake up and smell the patriarchy, man.

YOU DON'T HAVE SEX WITH PASSED-OUT PEOPLE, NO MATTER WHAT.

Is that clear enough for you? People who are drunk enough to pass out are not legally capable of giving consent. So it doesn't matter. And whether they knew she was seventeen or not is irrelevent. Ignorance is not a defense against breaking the law.

These men raped that girl. You can consider that unimportant if you want to, but it says way more about you than you probably want it to.

Jeffersonian, yes, you are in fact defending rape. If you think that it's okay to have sex with a woman who is passed out and covered in her own vomit while her friends watch, you clearly DO think that rape is okay. Even if she DID "consent" in her drunken stupor to have sex with these multiple partners, that "consent" was automatically revoked the moment that she started VOMITING AND PASSING OUT.

Anyway, I'm really glad that NOW has gotten involved.

I understand the DA's position. Rape laws suck. But I think it's important to keep the pressure on.

I recently started a blog about rape, and this case has been featured prominently. When the DA outright said in her letter that she couldn't prosecute because the victim couldn't remember most of the evening (in other words, if she was passed out or drugged), I guessed that people would start using this as an excuse to support rape.

Congrats Jeffersonian, you've proven me right.

It would not matter if she consented before she passed out. If they continued, it would be rape. Of course, she was conscious when the two women got to her, so I don't know what passing out has to do with this case.
The real issue here is if she was lucid enough to consent. The two women who found her seem to think not, although they were not there until the very end and never had a direct view of the event in question. The third woman who witnessed the alleged assault, on the other hand, said she did not think it was a rape. It is funny how this third woman is lumped in with the other two as having witnessed gang rape. The reporter in the video even admits to only having talked to the first two.
Personally, I think this sounds like rape, but having seen how the media distorts these things, I think I will wait for more information before making up my mind. Hopefully this protest will force the DA to explain exactly why she chose to dismiss.
A side note: The two women claim to have cleared vomit from the alleged victim’s mouth, so everyone assumed that the victim had thrown up. DNA tests revealed, however, that vomit found at the scene was not from the victim, so either the witnesses are wrong or someone else vomited on and in the AV and she was too out of it to spit it out (a point at which I would think it is safe to say she could not consent to sex).

I was thinking that it is kind of sad that we need a sign that says "Gang Rape is not OKay" as that should be kind of obvious, however, Jefferassholerson showed up and proved that it is absolutely still necessary. Look, if the justice system isn't made for cases like this, then what is the justice system for? As your name implies, I am assuming you are anti- federal goverment, but even advocates of Jeffersonian democracy conceed that government is needed for the basic protection of its people. So stop hiding under the guise of libertarianism and call yourself what you are: a slimy misogynistic rape apologist.

Point of information - it wasn't her vomit on her, but someone else's.

I appreciate that her friends pushed their way past these guys, that there were condoms about the room, etc., but that is in no way indicative of whether consent was given prior to her passing out. Not even the witnesses can vouch for whether this occurred, by all appearances.

You do realize that this trial that you are demanding will almost certainly result in an acquittal while providing an opportunity for the victim to be put through another wrenching experience?

And yes, I do realize that one does not have sex with a blotto/unconscious woman. When presented with the opportunity in the past, my response has been to tuck her into my bed, kiss her goodnight and sleep on the sofa.

Does anyone know if the DA can legally release more information on this case? While I want to know what happened, I do not know if she is restricted by the law or at least by the state bar's ethical standards.

Maybe I'm confused, but I thought there were actually 4 women "involved"--three who busted up the situation and one who was dating one of the onlookers (or rapists?) and has spoken out to say she doesn't think it was rape.

At any rate, statutory rape is a strict liability offense (i.e. it doesn't matter whether they knew her age) and the fact that the victim can't remember what happened and two other women witnessed a scene that doesn't sound much like consensual sex makes me strongly believe that the situation was gang rape. I would, of course, defer to a jury that heard all the relevant information, but I'm concerned that the DA is being too dismissive of the women's accounts and too concerned with the victim's lack of memory--circumstantial evidence convicts people all the time, as it should since direct evidence of so many crimes--especially sex crimes--is so rare.

The point isn't just that it's immoral and unethical to have sex with people who are unable to legally consent. The point is that it's also illegal. Automatically rape. And since this girl was raped, those boys should be prosecuted. That's what we do with people who committ crimes. And, quite frankly, the idea that she was covered in someone else's vomit sort of solidifies my position.

Noname: She probably discussed as much as she could in this editorial. Whether or not you find her rationales convincing is up to you and up to voters in whatever county elected her.

It is true, however, that a prosecutor has an ethical to bring cases before a jury that they believe they can prove beyond a reasonable doubt, not ones they think are a coin flip. I appreciate the delicate conundrum she's in, especially given that she's prosecuted lots of cases, but something about the tone of the editorial seems unnecessarily cautious.

I haven't read the comments to the editorial, but I assume that they will add very little.

If the DA couldn't prosecute for sexual assault because she didn't have the evidence, why is she not attempting to bring other charges up? Perhaps "endangering the welfare of a minor" to the student who owns/rents the house the party was in? I think part of the outrage I feel (other than the obvious!) is that there has been *no* justice whatsoever in this case. If the DA brought someone up for the responsibility of having a party without checking ID or serving to a minor, while paltry at best, she would be doing the very *least* she could do within the law. Well, the very least other than doing nothing like she is now.

Also, perhaps now is a good time for Californians to take a good hard look at the sexual assault laws, and see what could be changed for the better!

I was thinking that it is kind of sad that we need a sign that says "Gang Rape is not OKay" as that should be kind of obvious, however, Jefferassholerson showed up and proved that it is absolutely still necessary. Look, if the justice system isn't made for cases like this, then what is the justice system for? As your name implies, I am assuming you are anti- federal goverment, but even advocates of Jeffersonian democracy conceed that government is needed for the basic protection of its people. So stop hiding under the guise of libertarianism and call yourself what you are: a slimy misogynistic rape apologist.

If you actually knew me, you'd realize how ridiculous your last assertion is.

As for the rest, you beg the question. That this woman had sex with these men is irrefutable, whether she did it consensually is. I am aware of CA's statutory rape law, but I also know that it will likely result in, at best, a misdemeanor conviction and more likely an acquittal if the woman represented herself as being 18+.

I recognize that citizens need protection by their government, this being its primary function. I also realize they need protection from their government when those with political axes to grind wish to use the prosecutorial power as a punishment in and of itself.

So, are we now setting a new precedent that if you don't remember anything it wasn't rape? Because I'm sure all the women who have been drugged or otherwise knocked unconcious before their rapes will really appreciate that.

This goes back to to idea of passive consent versus active consent. Jeffersonian, are we to assume the girl consented merely because there is no evidence that she did not consent? Why should consent to any sexual activity (particularly multiple partner sex) be the default? Why not assume that she did NOT consent until evidence is presented that she did? Why is it assumed that all women, or men for that matter, consent to sex only if they do not fight back and/or make their objects known loudly and forcefully? Leaving aside the issue of whether or not she was able to consent, why should we assume she did in the first place? Lying passively on a bed covered in vomit while people had sex with her doesn't make it sound like the girl was a willing participant at all, so unless the girl says otherwise, I call it rape.

... because we all know its common for a 17 year old "promiscuous" girl to consent to sex with multiple partners while being watched and and cheared by the rest of the baseball team and then go to the hospital for an intrussive medical exam just for fun and THEN risk being publicly ridiculed and blamed for your "promiscuous teenage choices" in order to press rape charges. Totally sounds like an awesome time to me...

well I don't know you, so I only have your words to go on, so it doesn't seem so ridiculous from where I am. As for the question of consent: The girls isn't claiming consent and there were witnesses. Why is is even a question? I am sure that you and no name are going to go off about "teh evidence" or the "bias" of the media, but please spare me. And why is this a political ax to grind on my part? It's not political thing when I feel that these men are getting away with a crime.

As a matter of us assuming what happened, I think we can make the reasonable assumption that the woman was raped insofar as she was unable to make an informed consent (not the least reason for which is she's not of majority age). With that entirely apt assumption, we can declare these men cretins, bastards, reprobates, savages and among the lowest scum there is on earth. No corner of Hell is hot enough for them. You won't hear a peep of protest from me.

The problem is that, legally, the only evidence about her consent comes from those who had sex with her. Are you really ready to convict someone of a violent felony with no evidence?

Oh marissa, don't you know?
all those barely (non) legal types in gang bang pornos absolutely LOOOOOOVEEEE rough sex with multiple men! They crave cock! And because she's a lying whore, of course she would try to punish those innocent athletes when she was caught doing what she loved most

"That this woman had sex with these men is irrefutable, whether she did it consensually is."

W.T.F. She was UNDERAGED and passed out DRUNK. WHAT THE FUCK ARE YOU NOT UNDERSTANDING?

IT. WAS. RAPE.

Under CA law she couldn't have consented if even one of those facts were true. But somehow, magically, when both are true and there's 3 wittnesses who had to break the door down to help the victim, it's not rape?

"Because the woman doesn't know if she consented or not, and the guys will say (predictably), that she did give it and her friends were not present to contradict them."

Not "the woman", rape apologist, the underaged girl. And since apparently it needs repeating again - even if she did consent initially, if she's passed out drunk it's RAPE.

Goddamn I'm so sick of rape apologist boys.

Only a pornified rape culture would look at this sitch and say "did she consent?" Oh yes, because everyone knows women and girls are cum-drunk sluts who will take on anyone, anywhere at anytime and in any fashion. Porn sells a lot of movies with this premise so it must be true!

There is little question in my own mind that the men involved were guilty--of (at least) some sort of sexual assault, accomplice liability, etc, and (at most) a violent rape.

However, as I recently discussed on my own blog,* the fact that I really, really, think they were guilty doesn't necessarily mean that it is possible to prosecute them successfully.

And if the prosecutor doesn't think she's got an ice cube's chance in hell of actually winning, then she probably shouldn't prosecute--that type of decision, though horrible in this case, is part of her job.

The reality is that our criminal system is imperfect. Guilty people often go free, and often can't even be charged--and innocent people often get charged, and sometimes convicted.

That SUCKS, in both cases. And there are things we can do to improve it generally. But it doesn't necessarily mean the prosecutor is the one dropping the ball.

*if you're interested of more discussion of accomplice liability and the problems w/r/t this case, see here..

Jeffersonian,

You are flat WRONG about rape law in CA. Even if she represented herself as 18, it is not a defense, and would (as such) be inadmissable. Under CA Penal Code 261.5, it is a misdemeanor if the victim and assailant are within 3 years of eachother's age, and a felony or misdemeanor if the age gap is greater. If any of the men who had sex with her were minors as well, they would still be guilty of statutory rape. (The statute is gender neutral, so both parties to a sex act could be charged, but as far as I know, it has never been done. And although it was SL, she couldn't be charged if she was incapable of consent. Even SL offenses require conscious bodily movement to fulfill the actus reus requirement.)

You don't have to be unconscious to be incapable of consenting. If she passed out during the act, obviously she was pretty drunk in the beginning.

PS--Usually exhibitionists like to be AWAKE and AWARE during the exhibition. So if she was the sort of girl who liked group sex in front of cheering onlookers, she wouldn't be falling down drunk. Plus, the women being excluded from the room? Consciousness of guilt, anyone?

Noname, you are confusing the third woman who rescued her with another woman who witnessed part of the events earlier on.

Jeffersonian, why not interview those present and ask if she consented? Some of the men in that room probably didn't have sex with her. There are witnesses. According to some accounts, two of the baseball players tried to stop it earlier in the evening. They could testify not just to whether she 'consented,' (verbally said yes) but as to whether a reasonable person would think she was too drunk to consent. (If they would, it is rape, even if she was screaming 'oh yes please' throughout.)

And Genny, you are my hero. (heroine) Spot on about the fact that it is assumed she consented if there is no evidence of verbal and repeated non-consent. FTR, most people, women included, don't want to have sex with ANYONE most of the time. When we want to have sex, we have ways of making it known. And when we want to have sex with SOMEONE, we usually don't want to have sex with EVERYONE, just that SOMEONE. Sometimes, we start out wanting to have sex with someone, and then we no longer want to. If you find that hard to believe, doubters on this board, stop and think about what a woman could say (she could be your ideal, fantasy woman) that would make you stop the act mid-way and never want to have anything to do with her again. Some of us have had those words said to us.

I fail to see how they couldn't be charged with at least statutory rape. Even if they're going to claim there isn't enough evidence to support other charges (which seems insane, given the situtation, but never mind), she's too young! No matter who said what to who, it's still statutory rape. Surely something could be done to someone about that.

I agree with the comment that only a rape culture would look at this and ask "did she consent?" I cannot see how this is anything but rape or how it could possibly even be considered otherwise. (Maybe I just don't have enough consentual passed-out sex with multiple partners while inviting the baseball team to cheer us on.. or somethin...)

I used to volunteer for a domestic violence and sexual assault shelter/counseling center and learned from the center's legal department about the kinds of cases automatically dropped by D.A.s. I won't go into detail about where and what constitutes a case to be automatically dropped because this IS the internet and I don't want to give ideas, but I'll just say it's appauling, it's regularly done, and I'm litterally surprised that the few rapists that actually are charged actually get charged considering.

I'm just really upset that the this is the world we live in...

Jeffersonian,

I don't understand where you get "no evidence" from. I get that the issue of consent is a matter of he said-she said, as it is in virtually all sexual assault cases. However, there is plenty of evidence that this girl was under the age of 18, severely intoxicated, possibly unconscious, and that the women who removed her from the situation had to do so by use of force, and certainly not over any protest by the girl herself.

Saying that is "no evidence" is like saying that if you walk in to see me surrounded by a pile of candy wrappers and smelling of chocolate, there is "no evidence" that I had more than one bite of candy. It's not ironclad, but it sure as hell seems likely I pigged out and ate them all.

To everyone else, I totally agree about the rape culture--the idea that consent is considered possible by anyone, without ANY EVIDENCE (well, except for the claims of the dudes involved--I will admit that that constitutes some evidence even if I think it's biased and unreliable evidence) that she did consent, is ridiculous.

And I don't mean to trivilaizethe situation with the candy wrapper scenario, only to point out that saying there is "no evidence" when there are a lot of circumstantial facts that point toward rape is also effing ridiculous.

Ismore, thank you for the compliment. It just astounds me how many times I hear "well, she didn't say no" as a defense for questionable sexual activities. Drives me nuts. Especially when it's not that, but "well, she doesn't REMEMBER saying no".

legallyblondeez, obviously the candy wanted to be eaten. Otherwise, it wouldn't have been in that room with you ; )

I understand the reasons DAs don't take every case to trial but, really? Did they collect the condoms from the room she was in to do DNA testing? Did they get the report from the hospital which should indicate whether or not the sex was forcible by tissue damage or bruising? Did they call all the people in that room, and at the party, in to be questioned about what they did or didn't see? Because so far all I've heard is "well, she doesn't remember anything, so we can't make a case" and I just don't believe that. I don't remember much about the time I got hit by a car, and I didn't see it happen, but there was a big ass bruise on my leg and somehow my shoe ended up across the street from me after I flew through the air, so it was pretty easy to infer what had happened.

The fact that anyone could defend this on any grounds makes me feel physically ill.

I don't think that anyone here is disputing that this is rape.
However. If it could not be proven beyond a reasonable doubt to a jury, the DA was right not to pursue the case.
The victim/survivor doesn't know what happened after she got to the party. The awesome heroic girls who picked her up and took her out of there can't ID suspects. It sounds like there is insufficient DNA evidence.
It really sucks that whoever did this likely won't go to jail. But she was still raped.

RF,

I agree that if the perpetrators can't be id'd, they shouldn't bring a rape case, but I am surprised that the DA didn't say that was why she wasn't brining the case. Also, I agree with the earlier poster that they should hit whoever they can with whatever lesser charges they can--serving alcohol to a minor (this would be by county ordinance), contributing to the delinquency of a minor, etc. When shit like this goes down, you get them for whatever you can. Kind of like going after the mob for taxes.

- I agree with the comment that only a rape culture would look at this and ask "did she consent?" -
Getting a conviction means convincing 12 random people to agree that they are certain beyond a reasonable doubt that someone specific did something illegal.
If the DA looked at the facts and honestly said that there was no way that that would happen, she was right not to pursue the case.

Hey Ismone, I totally agree. I really hope they go after the people who own the house where the party was held. If that gets dropped for lack of evidence, I'll hold a sign somewhere :)

At this point I'm not really interested in whether the DA made teh right decisions. Maybe she did.

I am interested in clearing up the idea that "insufficient evidence" means "no evidence" or "no rape." If we don't change the rape culture we live in, it's not going to get any easier to prosecute rapists.

The protests may not result in further action by the DA, but they certainly draw attention to the ways that our current culture lets things that are almost certainly rape, or at least sexual assault, slide right on by with few consequences for the alleged rapists.

1) It is impossible to say yes, when you are so passed out that others are vomitting on your face?

2) If she said yes, why ask team mates to hold the door shut?

3) It is highly unlikely that this underage woman said, "oh and be sure to barf on me - I really like that part."
4) At the rally, there was a deeply disturbing plea for just one of the boys to come forward and tell what happened. What if it was their sister - would they remain silent? It is time to really ask what makes baseball team think that their silence is ok.

Why not just all walk in, offer their DNA, volunteer for questions? Why is this sports team feeling the need to act with one silent voice?

We want men and women to STOP hiding immorality, be proud to step in and say, "This is wrong!"

Why didn't some of the boys take her to the hospital? Could it be a team thing? a sports thing?

I find that the best way to see something clearly is to ask what you believe should have happened. Start with not getting a 17 year old so drunk she cannot not move, not throwing up on another human being, not holding the door while hearing screams, COMING TO THE AID OF ANYONE IN DANGER. WE SHOULD EXPECT THAT OF ONE ANOTHER AND OURSELVES.

For starters, let's correct a few mistaken facts:

1. there was no cheering. None of the witnesses says there was cheering. That was an erroneous report from early in the investigation.

2. the vomit wasn't hers.

That said, I don't doubt she was a victim of an assault.

I've said this before, and every time I've said it it's been ignored, but no one is considering that the victim herself is no longer interested in pursuing the case. The trauma of an investigation and trial in the case would be incalculable for this seventeen-year-old. I work in this field. I talk to victims of sexual assault and child rape.

I don’t think victim is cooperating anymore. And without the victim (no matter what physical evidence the DA has, even DNA), the case is dead.

For all the complaining about how “alleged� rape victims are treated in the media, the sad truth is that victims are rarely treated well by their advocates: the prosecutors and police. Prosecutors can be very hard on victims during interviews, “pushing� them to see how well they’ll hold up on the stand, and questioning their accounts with occasional ferocity. The government doesn’t provide any ongoing care for the victims while the cases are investigated and prosecuted.

My firm has interviewed victims (on behalf of their assailants!) and been told we were more sensitive to them than the police and the DA’s office. Some victims have told us that after they were interviewed by police that they never heard from them again, only to be called by a testy DA for an interview after charges were filed (without even informin the victim). Without an infrastructure to care for these women, many never appear in court. Aggressive defense teams with aggressive investigators (mostly ex-cops) harass these victims, their friends, and their family. For teen victims, they exploit the shifting allegiances of high school culture. And the DA rarely lifts a finger to protect them.

Alameda County does a great job dealing with victims and preparing them for the rigors of trial. They have a separate agency that works closely with the DA that protects these women. I’m not aware of a similar structure operating in Santa Clara County. A trial in this case would be sensational. The victim would be under a lot of scrutiny. Her character would be the subject of rampant speculation by the worst TV pundits. The defense team would leak whatever they found out about her and her family. Her school records would be subpoenaed. Her health care records too. She would be repeatedly trashed in the news media by the defense team. And to top it off, she was underaged and too drunk to even identify her attackers. How would that play on Nancy Grace? Imagine what she would have to go through, at only seventeen years of age–in addition to the trauma of the attack.

Victims’ advocates need to understand this stuff. These women get victimized all over again by the very system designed to protect them in the first place.

Okay, playing some devil's advocate over the D.A. On one hand, yes, it is increadibly hard to prosecute a rape case no matter the evidence because one has to convince a jury beyond any doubt. This is hard specifically because of our blame-the-victim culture. "She was at a party." "She should'nt have been out late." "She was drinking." "This points to her promiscuity." "Therefor she deserved what she got." etc., etc...

I think the D.A. SHOULD be held accountable to bring it to trial. There is no way we can reasonably expect those perpetrating or whitnessing (practically perpetrating themselves) the crime to come forward. That is close to unheard of! They are not going to incriminate themselves or their teammates. I think the solution absolutely is to change the rape-culture and the blame-the-victim culture. But one way to do this is to actually make more effort to take these cases to trial. Dismissing rape cases right and left sends a strong message that one can rape and get away with it. If there was more of an effort on the part of the courts to take these cases seriously, I think that is one strong step towards changing our rape-freindly culture.

Then of course I'd also like to see serious programs in schools where kids are taught about healthy relationships, how not to abuse and rape, the importance of consent, respecting women's opinions and feelings, etc..

Furious T-thanks so much for that reminder. It's so awful-no matter what, you are hurt again. This is why I never pressed charges against my grandfather for sexual abuse. The statute of limitations has run out now- but before I was just too sick to even think about a trial lasting 2-3 years, and having to go through everything, over and over with people.

This all makes me so sick. HOw many of us are raped, and never get justice? How many of our rapists are out there walking the streets? How many are raping again?

Furious T,

I think that there is pretty good evidence that 'cheering' happened, the softball player who didn't think it was rape was reported as saying this in a May 15 article:

"De Anza College softball player Megan Keefhaver told a KNTV 11 reporter in March that she saw 10 people cheering baseball players who were engaging in sex with the girl. However, Keefhaver did not interpret the incident as a crime.
'I didn't think of it as a rape situation,' she said."

http://www.mercurynews.com/markpurdy/ci_5901609

The victim wants to go forward; read this story posted eighteen hours ago and titled "Girl in DeAnza rape case 'wants her day in court'"

http://www.mercurynews.com/breakingnews/ci_6031160

I hope she gets it. They're calling for the AG, former governor Jerry Brown, to step in and take the case. Govenor Moonbeam rides again.

Oh and another point about the impossibility of the team mates coming forward. If they didn't come forward to help her while it was happening, either be it out of comradery or fear, what on earth would inspire them to come forward now, considering the legal system and the public eye are now involved?

I think the best way to fix a problem in the legal system is to hold the legal system accountable. Go CA NOW for recognizing this problem and protesting it.

I'm so happy she has advocates and is standing up for her rights! What an amazing young woman. At age 17, after being gang-raped, I would NOT have been that amazingly strong. Anyone know of a support website for her? I just wish that we could all tell her how great she is, and that we support her.

And yes, I do realize that one does not have sex with a blotto/unconscious woman. When presented with the opportunity in the past, my response has been to tuck her into my bed, kiss her goodnight and sleep on the sofa.
---
That this woman had sex with these men is irrefutable, whether she did it consensually is.

Forgive me if I hold my applause until you figure out that performing what are traditionally considered sex acts on a person who isn't conscious is rape, and rape is not sex. There is no ["opportunity" for] sex with with an uncoscious person.

Damn right, Sandinista. Jeffersonian is definitely a Nice Guy(tm).

Ok, I just quickly set up a support page at livejournal

the name is de_anza_support

check it out-I'll be posting news articles and stuff over the weekend.

I absolutely believe that this girl was gang raped. I absolutely believe the girl who said that a similar thing happened to her in the same house on a recent, previous occasion. I absolutely believe that those who brutalized this poor girl deserve to rot in jail for the rest of their lives and in hell thereafter.

That said, if the perpetrators can't be positively identified, there's not much the DA can do. It's automatically "reasonable doubt" if no one can place specific males in that room at the time of the rape.

That is why it is exigent that we conquer the "culture of rape." It would take only one person in that room with the courage to stand up and say "I am taking her out of here. If you stop me and do this despicable thing, I will identify you, testify against you, and see that you pay for your actions." How many men do you think would continue a rape, let alone a gang rape, knowing that he can't count on silence from witnesses?

At this point I'm not really interested in whether the DA made teh right decisions. Maybe she did.
I am interested in clearing up the idea that "insufficient evidence" means "no evidence" or "no rape." If we don't change the rape culture we live in, it's not going to get any easier to prosecute rapists. - Legallyblondeez

Did someone here say that insufficient evidence means no evidence or no rape?

As for the question of consent: The girls isn't claiming consent and there were witnesses. Why is is even a question? I am sure that you and no name are going to go off about "teh evidence" or the "bias" of the media, but please spare me. - tabitha91

Yes, I am talking about “teh evidence� (I can’t get over the fact that you put that in quotes). Evidence is all that matters if one is deciding if this case should have gone to trial. So far the evidence I have heard about, and this is extremely limited information, leads me to believe that she was raped; I just don’t think I have heard enough to prove this beyond a reasonable doubt, much less to prove who raped her.

It seems to me that the message here is this:

Unless a woman (before or after the age of consent) SPECIFICALLY says "NO", she is fair game. Nevermind the fact that there was underage drinking and a large group of athletes crowding a supine girl who had vomit (her's or someone else's regardless) on her face. Unless she actually SAYS "no", then her vagina is up for grabs to anyone.

I would, however, argue that anyone (man or woman) who is lying on a couch with someone else's vomit on their face just *might* not be in their right mind.

This means that if anyone wishes to have sex with any woman, all they need to do is silence her BEFORE she can say "no".

Nice little rule here. Invest in "ruffies" while you can! They are no longer a "date rape" drug... they are used for "courting" now. Makes a great story to tell the kids later about how you met, too!

Again, I'm going to ask, did they collect the used condoms from the room to test them? If nothing else then to test them against the victim's DNA and the vomit on her? If they didn't then why not? And if they did, then anyone with matching DNA would obviously be guilty of rape, since a girl that drunk is not capable of consenting at all. Period. Nevermind the underage issue.

And if these things haven't been done before the DA dismissed the case as having "insufficient evidence", well, I don't believe her.

Genny - Exactly. I know they collected samples from some suspects, and that they ran tests on the vomit. I have no idea if they tested the contents of the condoms or whatever was found during the SANE exam. If they did not, then clearly the case was dropped too quickly.

it is exigent that we conquer the "culture of rape." It would take only one person in that room with the courage to stand up and say "I am taking her out of here. If you stop me and do this despicable thing, I will identify you, testify against you, and see that you pay for your actions." How many men do you think would continue a rape, let alone a gang rape, knowing that he can't count on silence from witnesses?

I like it! See this post, also, for how to make just that happen when you the the chance to talk to boys about sex.

I put it in quotes noname, not because I don't think evidence isn't important, but because I have seen you come on here with the same (or less) information than I have and go off like you are a juror in the case. I admit I am not involved in the case, I do not have the evidence, but I am coming on a feminist blog to share how I feel with like minded people. Not that people can't disagree, but I have noticed you only post when it has something to do with rape, and then go off about evidence, even though you are not privy to any more information than anyone else. Why is that? Many people here have confirmed that there may not be enough evidence,(no one here knows, not even you), but are also addressing the existance of "rape culture", which is pertinent, because this is a feminist blog. So I will have to say your only reason to be here is to be a troll.

yeah, I was really confused about the DNA stuff too-if there were condoms strewn about, then test the condoms. Test the girl for drugs-did they do that? Test for "date rape" drugs? Test her for pubic hair, semen and blood. Test all of the boys in the house for DNA. Interview every single person at that party to get at the truth. Yeah, it'll be hard work, but that is their JOB.

it is exigent that we conquer the "culture of rape." It would take only one person in that room with the courage to stand up and say "I am taking her out of here. If you stop me and do this despicable thing, I will identify you, testify against you, and see that you pay for your actions." How many men do you think would continue a rape, let alone a gang rape, knowing that he can't count on silence from witnesses?

I like it! See this post, also, for how to make just that happen when you the the chance to talk to boys about sex.

I was wrong. According to today's Mercury News, the victim released a statement saying she wants her "day in court." So she wants to go forward.

I confess I'm currently at a loss as to why the DA will not prosecute. Although this is a difficult case there are a lot of investigative avenues that could be pursued. I don't understand why "conflicting accounts" are the problem. There are ALWAYS conflicting accounts. Now I'm at as much of a loss as everyone else.

The only clarification is that "insufficient evidence" for a prosecutor means that she does not believe that she has enough evidence to convince a jury to convict particular people beyond a reasonable doubt, not what it means generally to laypersons.

As for the small glimmer, I think that the Sheriff's Department is still holding open investigations for providing alcohol to minors and, more importantly, statutory rape.

tabitha91 - I didn't say I had seen more evidence than you. Here is what I said, "So far the evidence I have heard about, and this is extremely limited information, leads me to believe that she was raped"... Does that sound like I am claiming to have more information than you? My posts on this thread have, in fact, revolved around the fact that we do not have access to enough evidence to make informed judgments. I can say that I think the AV was raped, but that does not mean there is enough evidence to prosecute.

As for what I choose to comment on: I don’t tend to comment on posts where I feel other people have already adequately made the same points I would. This includes posts that I agree with (a majority of the posts on this site), and those with which I do not agree but to which others have already adequately argued my position (Ex. Samhita’s bandana bonanza).

noname, Jeffersonian at one point said "The problem is that, legally, the only evidence about her consent comes from those who had sex with her. Are you really ready to convict someone of a violent felony with no evidence?"

I was just pointing out that there is a lot of circumstantial evidence to suggest a lack of consent.

And I understand that the DA can't prosecute a lot of cases that look, from the press, like slam dunks. I still think that raising the alarm about this particular case is useful from a standpoint of examining our cultural attitudes about sex and rape, even if the DA made the right decision. If there is all this evidence and it's still not strong enough, what does that say about us as a society?

According to Jeffersonian the girl may have consented before passing out drunk.

*crickets chirping*

And that matters, why? When they had sex with her, she wasn't conscious or able to give consent.

When women give consent to sex, how long is that consent good for? Sounds like you think it means "I consent from here until the end of time."
If I had sex with a guy last night, is he entitled to fuck me tonight "because I consented in the past?"

Good grief. How disgusting do you have to be to fuck an unconsious girl or woman, thinking it's A-OK because she said yes before she puked and passed out?

Furious T, do you have a link to that editorial?

legallyblondeez - DOH! I forgot about Jeffersonian's post. Point taken.

Cara:

http://www.mercurynews.com/ci_6035869?nclick_check=1

Oops, I see the article further up in the thread now.

I just posted on my blog everything I could find that we can do to help. If anyone knows of something I've missed, please let me know and I'll add it to the post.

Sorry, but that "gang rape is not OK" sign is really annoying me. It's quite clear to anyone that isn't a fuckhead, a psychopath, or what have you that any kind of rape is not OK. And those are the people that wouldn't pay attention to the sign anyway.

I find it really disturbing that in this, one of the most clearcut rape cases one ever sees, with more evidence by a MILE than most rape cases that get reported, things can still be so "controversial." Yeah, what was said above about our particularly misogynistic culture. If this is controversial, if this is lacking evidence, then it is impossible to try and convict for rape EVER. What kind of message are we sending?

PS--does anyone know anything about the position of the local rape crisis centre that was mentioned in the video, of backing the DA? I'd like to know more as I find that stance really surprising--most rape crisis centres I've known of take an explicit stance of solidarity with the victim, no matter what. As it's important that at least one fucking person in the world is doing it. I find it really upsetting to hear about one not offering support.

I agree, Anna. It seems as though the Rape Crisis center has a repitoire with the DA office that they don't want to endanger. It seems like a tough call to be in that situation . . . but I agree that it is the job of rape crisis to be an advocate of the victim first and foremost before any larger political agenda.

I could be completely wrong here, but my best guess is that there is enough evidence to prove that a rape occurred, but not enough to prove that a specific individual was guilty of that rape. So if one of these dudes was accused of raping this girl, he could create reasonable doubt with a simple, "He did it."

My understanding of criminal law is not the best however, and this could be completely off target. Assuming that I'm right, I fail to see how they couldn't find anything else to accuse these people of.

The problem is really who to convict?

Some people are "more guilty" than others in the eyes of the law.

BTW, it may also be a double jeopardy issue. If the DA feels like she can eventually find out who the main perps were, she's better off waiting--if she tries and convicts everyone on, say, statutory rape... then she can't REtry them on a more serious charge around the same set of facts.

The problem remains though: how the heck do you get a rape conviction even though you know they did it in a situation like this? It's awesome the victim will testify; that will help the case enormously.

I imagine that you would get a conviction from the victim's testimony, the eye-witness accounts by the girls who saved her, the DNA evidence in the condoms and the rape kit done at the hospital.

The only clarification is that "insufficient evidence" for a prosecutor means that she does not believe that she has enough evidence to convince a jury to convict particular people beyond a reasonable doubt, not what it means generally to laypersons.

Seems to me that the standard should be whether the admissible evidence convinces the prosecutor beyond a reasonable doubt, not whether the prosecutor thinks that evidence is likely to convince a jury.

If you're the prosecutor, and you're convinced (again, by the admissible evidence), bring the case. If you can't convince the jury, that's on you.

Here in San Jose, the 'grapevine' consensus is:

1. She was the victim of a sexual assault.

2. She was the victim of a statuatary rape (she was underage).

3. The evidence is pretty clear about the identity of the perps, but NOT who should be charged with what. That is, the stat. rape was consensual, the sexual assault not, but the physical evidence linking perps to crimes is ambiguous.

What you're looking at (I'm talking about the DA's decision not to presecute) is less a case of institutionalized patriarchy viz. the legal system, and more a function of the advocacy approach to trials. The DA's judgement is that a defense attorney would drive a 'plausible doubt' truck through the evidence. Apparently the problem for the DA lies in the (pardon the expression) excessively mesy details.

The evidence of 'rape culture' in the attitudes of the men involved is pretty obvious from their words.

Again, Paul (and I'm not attacking you here, because you didn't express these views as being your own), I really don't see how any reasonable person could think that ANY of the sexual encounters with ANY of the bastards involved were even close to consensual, considering this particular set of circumstances. That is the part that truly boggles my mind.

Angus,

It's a tradeoff. Allowing more prosecutorial discretion is good in a case like this. Enhanced discretion is good when the people are actually guilty.

However, enhanced discretion causes a lot of problems for people who are "obviously" guilty in the mind of a (hypothetically) biased prosecutor. Black men used to get put in that category a lot (and still do, though less so). Discretion often leads to abuse of power.

So while I, too, wish that this case would go to trial, I can't sign on to support a general change in the rules.

Cara, the circumstance that jumps into my mind is an incident at a friend's school. At an off-campus party, one of the residents of the house and his girlfriend retired to his room to have drunken sex while the party raged outside. While inside, his friends start looking for him and come into his room. Instead of immediately leaving, they stayed and cheered on their friend. Neither sex partner claimed to remember it (for whatever that's worth).

Of course, what I just recounted wasn't a crime (though it was despicable), since the sex was consensual and the particpants of age. Had either party (depending on the state) been underage, that's stat rape.

But if one of the onlookers had rushed in to cop a feel, then that's a sexual assault.

This may be a similar situation.

But . . . she was covered in vomit. And said that she didn't consent.

Cara -

Well, statutory rape is predicated on the assumption that the under-aged can't give their knowing consent full-stop. Which is why every one of the men involved is guilty of at least that crime.

But that's a different crime, with lesser penalties, than sexual assault.

My (very, very vague) understanding is that what started out as drunken (though consensual) statutory rape involving perp A. preceded sexual assault involving perp. B. But the details are (apparently) hazy. Witnesses are inconsistent (ie. some are lying, pretty clearly).

With luck the exposure will help clarify some memories.

But my original observation (I hope) stands. Framing a trial as a contest between two competing advocates isn't working; certainly not in this case, and (to extrapolate) not in many rape cases.

Would it be a practical feminist reform to propose that trials involving sex / sexual assault adopt a more European 'investigatory' model? The judge, assisted by two court appointed advocates undertake a public investigation where the objective is to arrive at some consensus about the facts and the relevant law, and present these to a jury to see if these 'reasonable people' make a connection? That would remove a lot of the structural motivation for treating victims badly.

Cara, my scenario was only in respose to the gossip from the DA's offce that Paul Brown provided. I'm not saying that's what happened in this case. If indeed the victim didn't consent to any of the sexual contact, my scenario makes no sense.

I don't have enough of the facts to make a judgement on what happened myself. I do, however, think that the woman is a real victim of a sexual assault and possible rape.

I live in San Jose and this is positively appalling! But, I guess I shouldn't be surprised. This is the same place where a white high school student wasn't punished for leaving a note on his teacher's car which said "Thanks, my nigga" because she gave him a bad grade on a test. Apparently, because he'd heard black people use the word, it was okay to say to an adult woman who was not his peer.

Not only do I think these little bastards should PAY, and PAY and PAY!!!! I want to know each and every one of their NAMES. They should not only be prosecuted (which fucking may or may not happen, what the FUCK??), they should be publicly SHAMED for the rest of their lives. I want names, adresses cell numbers. Nothing's private anymore, right? I WANT THEIR NAMES! GRRRRRRRR!!!!

Would it be a practical feminist reform to propose that trials involving sex / sexual assault adopt a more European 'investigatory' model? The judge, assisted by two court appointed advocates undertake a public investigation where the objective is to arrive at some consensus about the facts and the relevant law, and present these to a jury to see if these 'reasonable people' make a connection? That would remove a lot of the structural motivation for treating victims badly. - Paul G. Brown

All this process seams to remove are defense attorneys. Am I misunderstanding this? If not, this seems highly dangerous to me.

It's an entirely different model, noname.

There is no 'defense' or 'prosecution'. There is only 'fact finding'. The obligation of one of the state appointed advocates is to ensure that the legal 'rights' of the accused are accommodated.

But their goal is not - however - to gain an acquittal for the accused. Simply to ensure that the process respects their rights. In the context of a rape case, for example, they are not obliged or rewarded for making the principal witness break down on the stand or contradict themselves.

It isn't perfect, of course. But in rape cases, I'm going to assert that it would result in more equitable and just outcomes.

It's been a while since I studied European law. But my memory is that it has an entirely different approach: parties who we in the U.S. would consider "neutrals" (like judges) take a more active role, I believe. And I'm almost positive that the presumption of innocence is also quite different; I think the treatment of self incrimination is also different.

As a result, I'm relatively certain (from having been told so, not from independent analysis) that we could not implement such a system without some sort of Constitutional amendment(s).

And since most people on Feministing appear to be fairly liberal, I'd also like to point out that (like prosecutorial discretion) this proposal may simply reassign error rather than reducing it. It's not a solution, exactly. And because a lot of people who are aware of rape problems are ALSO aware of the dangers of overzealous government prosecution, you may not get unbridled support.

That said, there ARE things which could actually reduce error, without reassigning it. DNA testing is a good example, as is a lot of forensics work. Better investigative services in general have a tendency to improve the accuracy of convictions. Better rape kits; better lineups, etc etc. But they're expensive.

Hello awesome amazing feminist women!

Just wanted to update you all-I did start up a little support site for the victim of this horrible crime. It is at:

http://de-anza-support.livejournal.com/

Please check it out and take a minute to leave a few words of support for the victim. Also, please post this to your blogs or other websites you go to. I'd love to get a couple of hundred positive messages of support. THanks!!!!!!

Hello awesome amazing feminist women!

Just wanted to update you all-I did start up a little support site for the victim of this horrible crime. It is at:

http://de-anza-support.livejournal.com/

Please check it out and take a minute to leave a few words of support for the victim. Also, please post this to your blogs or other websites you go to. I'd love to get a couple of hundred positive messages of support. THanks!!!!!!

Oops, double post. Although, I think this is so important that it deserves a double post!