When my husband was stationed in Japan from 94-2001, Pacific Stars and Stripes was our newspaper (it was that or U.S.A. Today) . Their coverage of rape and sexual harassment in the military was extremely good and very objective, as was their coverage of some rapes of Japanese women by servicemen. There were no excuses made, no attempt to downplay the facts, and no rush to justice (they covered those cases far better the MSM did the Duke rape case. They also covered Japanese handling of rape, and one case in particular shocked me.
The Japanese-American wife of a service member was sleeping quietly next to her husband when she heard a noise. A stranger was entering their 4th floor apartment through the unlocked screen door from their balcony. In Japan, electricity is so expensive that most people do without it a tonight, and rely on the screen door, which has no lock, for keeping cool. The man crossed the room, and before she could do more than nudge her husband, was on top of her, pulling down her nightgown and fondling her. Her husband woke up, yanked the Japanese assailant off her, and sat on him while she called base security, who sent over two people and a translator. In the course of the investigation, the would-be rapist, who was rather drunk, admitted that he had climbed down three levels from his balcony, and across two other apartments to get to her home. He also admitted he’d tried to enter once before, and that he had stalked her for several months. Moreover, this wasn’t the first time he had been caught in such behavior—he’d been arrested previously for similar behavior.
He was found guilty of attempted sexual assault. The judge responded sternly by giving him a long talking to about drinking and attacking women. That was it. No jail time. NOTHING. He was drunk, and that seems to have excused everything. In Japan, at least, it appears that if you’re drunk you can get away with attempted rape—and probably an actual rape.
Think that doesn’t happen here? The next case I will describe occurred right here in America, in Santa Clara County, California. As of yet (this happened in March, 2007), the D.A. has declined to press charges because of insufficient evidence—yet there were three credible witnesses to what happened.
The alleged attack took place at a college party off the De Anza college campus. Here is what the witnesses saw:
Lauren Chief Elk and April Grolle are 20-year old De Anza College students and teammates on the school's soccer squad. They were leaving a party at a house when they realized something wrong was going on in a back room where the doors were closed and the lights were off.
"We heard and saw a girl tapping on this door in the kitchen saying 'There is a girl in there with eight guys," explains Chief Elk.
They say they tried to get into the room, but were confronted by a baseball player.
"[He said] 'Mind your own business; she wants to be in here' and slams the door," says Grolle.
What they saw through a crack in the door horrified them.
"When I looked in, I saw about ten pairs of legs surrounding a girl, lying on the mattress on the floor and a guy on top of her with his pants down and his hips thrusting on top of her," recall Chief Elk. "And when I saw that I knew immediately something wasn't right. It just didn't look right."
"I saw that this young girl did not want to be in there, and that's when we just went 'We're getting this girl out of there,'" says Grolle.
April and Lauren -- along with a third soccer player named Lauren Breayans -- broke down the door and were shocked with what they found.
"This poor girl was not moving. She had vomit dribbling down her face. We had to scoop vomit out of her mouth [and] lift her up. Her pants were completely off her body," says Chief Elk. "She had her one shoe one, her jeans were wrapped around one of her ankles and her underwear was left around her ankles. To the left of the bed there was some condom thrown on the ground."
"When they lifted her head up, her eyes moved and she said 'I'm sorry,'" says Grolle. "One of the guys who was in the room said 'This is her fault. She got drunk and she did this to herself.'"
Lauren Chief Elk didn't believe him: "You have to be conscious to consent to something, and that was not the case at all."
While the D.A., a woman named Dolores Carr, declined to charge the baseball players with any crime, the sheriff’s department is keeping the investigation open. The biggest problem appears to be the fact that the witnesses could not identify the man who was between the girl’s legs when they walked in—though there is DNA evidence, it is said And both believe that a crime occurred—the D.D. just doesn’t think she can prove it beyond a reasonable doubt, which is a valid reason for not prosecuting. It doesn’t help that the victim cannot remember what happened, even though three other women can testify to her intoxication and to the fact that a man was having sex with her when they walked in, and that there were multiple condoms scattered on the floor. It’s pretty obvious a rape occurred.
SANTA CLARA County's sheriff says she believes "a crime occurred" on the night of March 3. The district attorney acknowledged "some bad things happened" in a room with a 17-year-old girl and eight or more De Anza College baseball players.
Sure it's difficult. Some of the facts are murky, as they always are when young people are drinking excessively, as many apparently were during a party at a baseball player's home.
There are also, however, strong indications -- compelling evidence -- that a rape occurred. Remember, the young woman was 17. Seventeen. An adult having sex with her would be committing a misdemeanor even if it was consensual, and even if she were in full control of her faculties.
The accounts of three female soccer players from De Anza, who happened upon the horrific scene, suggest the young woman was in no condition to consent to anything and the assault was more than a misdemeanor. The 17-year-old they "rescued" -- the district attorney's word -- was too intoxicated to speak or stand. There was vomit on her face and on the bed. The latter pool of vomit was not hers, tests concluded.
Again, the prosecutor isn’t denying a rape happened. Neither is the sheriff. The issue isn’t what happened, but who did it.Without a positive I.D. you can’t charge someone. Without evidence , you can’t get a search warrant for a DNA sample, although California law does permit the use of a search warrant to obtain DNA, if you can support it. In other words, they probably can’t test every male guest at the party—although there have been warrantless "DNA dragnets" in other cities, such as Omaha and Baton Rouge. Such searches may be in conflict with the Fourth Amendment.]
Everyone acknowledges a rape occurred—but no one can come up with someone to test, and thus the rapists will very likely walk, unless someone breaks the code of silence.
What troubles me more than the inability of the D.A. to prosecute someone—her hands really are tied without a suspect-- is the attitude of the public and at least one expert.
"In California law, the notion of consent is tied up with the notion of force, and it's hard to analyze what constitutes force or consent if it's not verbalized," said Robert Weisberg
a Stanford Law School professor who runs the Stanford Criminal Justice Center.
Actually, this professor, however eminent his reputation is wrong. According to the California penal Code, Chapter 261, section 3
Rape is an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator, under any of the following
(3) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the
(4) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
FORCE is not a required element when the victim is drunk or unconscious, which the girl was—and there are witnesses to testify to that fact, as well, I suspect as blood alcohol tests done at the hospital.
He does get this right:
"Then if there's alcohol involved, communication becomes even more blurry."
A lot of people seem to think that because alcohol was involved, that absolves the athletes of guilt—that because the girl was drunk, they are home free. Here is what one person who posted a comment on an article had to say that ties in with that Japanese case:
The problem with the three soccer girls testimony is that they
only saw the very end of a situation that started hours before.
Furthermore their testimony falls apart, because they are saying the
girl was unconsconcis, but, they also said, the girl in question said "
I'm sorry", so how does and unconscious women say that, and what was she sorry for?
Additonally, several boys standing around people whom are having sex does not mean it was rape, they do not say anyone was holding this girl down, nor, is it clear if they too were drinking that night, and perhaps their recollection is a little clouded.
Additonally, other featured articles indicate that it is okay for girls to drink, but not be held accountable, but boys whom drink must. Perhaps ereryone was too drunk that night to fully know what took place.
All we read about this case is a little too brief, and a little misquoted. DA Carr should be applauded for making the correct decision.
The truth be, let this case go to trial, and then maybe everyone will see
not only the victim in a different light, but also the so called hero's that night. It is been said, one of the girls went into that room saying,"hey who's having sex in here without me", so, I ask is the whole truth coming out? And does this sound like a rape scene?.....
SHe will be destroyed in a court room. She has cried rape before, and it was thrown out because in that case to there was no evidence of rape. You would think a girl whom cried rape before would not get herself into such a situation.
Lastly, why is okay for girls to drink, and not be held accountable, but, boys who drink, are? why is it they need to be in control of their actions, and girls do not? Let's get real.
My son recently went to another De Anza party, with girls, laughing,
saying "I'm Drunk, it's okay", he said he heard this over and over ...
For the record, I’ve read multiple stories on this case, and NOWHERE, other than in this post, does anyone say that the two soccer players who rescued the victim said "Hey. Who’s having sex in here without me?" nor does it mention a prior accusation of rape by victim. This sounds a lot like campus rumor. The rape accusation would very easy for the media to check, and with all the media attention and criticism of the D.A. in this case, it’s unlikely Ms. Carr would not have mentioned that when defending her decision not to prosecute—it’d be a very strong point in her favor, and, as an elected official, she has to think of her career. Secondly, the ONLY mention I’ve heard of the soccer players’ jaunty comment when they banged on the bedroom door is in this post. Somehow I think that would have been used by defense attorney.
What Mr. Marshall doesn’t get is that there is a double standard about drinking. MEN can drink with impunity, and, if they are mugged and beaten up on the way to their car, no one ever claims they got what they deserved because they were drunk. The mugger won’t walk because the victim contributed the crime and must have somehow consented to the beating because he was drunk. If a woman drinks and becomes too intoxicated to consent (under the California Penal Code), she is immediately branded as causing her own rape. I strongly suspect that men know that someone that drunk is not legally able to consent (most colleges have rape education sessions during orientation these days, and go over this—if they didn’t get the info in a sex ed class in high school, which they should). If she’s under age, then her drinking is a crime—but being drunk does not constitute an invitation for any and all males who want to pull a train (otherwise known as a gang rape) to have at her.
In reality, what Mr. Marshall is saying is perilously close to what the Japanese judge said: that if a guy’s drunk, he is not accountable for his actions. Sorry, don’t buy that. I don’t care how drunk you are. You STILL know that gang rape of a girl so drunk she can’t stand is morally and legally wrong.
To sum it up succinctly: Her bad judgment doesn’t give him a free pass. Rape is still a crime, even if he has been drinking, too.
Do I wish young women were more careful? Damned right I do. I personally believe that when a group of women attend a frat or similar party, they need to have a designated person who stays sober and makes sure they don’t get into trouble (sort of a sexual designated driver). But her bad judgment doesn’t excuse his criminal behavior. Any woman who goes out to a bar partying with friends should never leave a drink unattended at the table without someone watching over it. It’s far too easy to slip a roofie into someone’s drink. DO I wish that when a woman returns to her table from dancing or the ladies’ room, that she dump that drink and order a new one? Sure. But her carelessness doesn’t negate his crime.
Are there gray areas? Sure. And this case may fall there—but even the D.A. thinks a crime occurred, even if she can’t prove it beyond a reasonable doubt. Most girls don't agree to a gang bang even if they're drunk. Sex with one of the guys? Sure? But EIGHT? With everyone watching?
Having sex with someone too drunk to consent or who has passed out is rape, pure and simple. We need to teach our daughters to drink responsibly and legally (binge drinking is a serious problem on many campuses; people die of it every year). We need to teach them that getting drunk in a house filled with young men who are also drinking or at a bar surrounded by strangers, isn’t safe without one person staying sober enough to not only drive them home, but to make sure they don’t end up as rape victims. But we also need to teach our sons that "no" means "no". If she meant "yes" and is a tease, you’re not missing anything—a girl like that is trouble from day one. We also need to teach them that, all too often, horny young men + alcohol =instant asshole. That having sex with someone so drunk that she cannot legally consent is rape, and that if they don’t want to end up in what they think is a gray area but she thinks is rape, they need to drink responsibly.
I am sick and tired of people excusing away frat rats and athletes because they were also drinking when the sex occurred. Yes, the girl was stupid. Yes, she was careless. Yes, we need to warn young women of the dangers of drinking too much and finding yourself in circumstances you are horrified by. But she is not gonna be charged with a crime if she has sex—he may very well be. Why not teach out SONS not to get so commode-hugging drunk that he don’t grasp that what they are doing with someone who has passed out is a crime?
I want both parties to behave responsibly about alcohol and sex. Currently, the only ones being castigated for getting drunk are women.
Crossposted at [hotflashreport.com Hot Flash Report]