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.