This hasn't been a big national story, but the alleged gang-rape of a teenaged girl by three boys at a party -- one of whom is the son of an Orange County assistant sheriff -- has been pretty closely watched here in Southern California. The details are pretty simple: the girl passed out at a party and the boys then videotaped themselves having sex with her and sodomizing her on a pool table. Straight-forward, right? Nope, there's been a mistrial.

Why? The alleged crime is on video tape, but rape is inherently hard to prove and guilt hinges entirely on the state of mind of the woman involved, which is impossible to prove scientifically (until we get magical time-traveling mind-reading machines). Our system of justice doesn't require scientific proof, it only requires "reasonable doubt" proof, but even that's hard to come by when it's one person's word against another's (or three others).

The main reason for the wide range of opinions, said the juror named Michael, was that much of the evidence — including the videotape and testimony from medical experts — could be viewed from either the prosecution or defense point of view.

"Ambiguity ran rampant through the entire case," he said. "I would understand why some people could view [the incident] as a crime. I could understand why some people would view this as a misunderstanding. That's basically why we had a mistrial."

The potential for a misunderstanding is rather high when the girl admits that she had sex with at least two of the boys willingly within the week before the alleged rape. There was also some controversy over whether the girl was actually unconscious at the time of the video taping, or whether the whole event was a staged attempt at making a porno, as the girl had previously indicated she wanted to do.

So what does this mean? That promiscuous girls can't be raped? No. But it does mean that promiscuous girls will have a very hard time proving that they were raped. The crime of rape exists entirely within the victim's mind, and she has to somehow convince other people of what she was thinking at the time it happened. (Similar to theft, where the owner of an object may or may not have agreed to transfer ownership to another person.) Sometimes this is relatively easy, because there will be evidence of a struggle or a known hostile relationship between the woman and her assailant. (Even then, the attacker can claim "role-playing", and how can one prove otherwise?)

But in this case, given the girl's past behavior, I don't think it would have been possible for these boys to have been convicted, nor should it have been. If she was raped, that's terrible, but it would have been even more terrible for the three boys to have been wrongly convicted based on emotion and the weak evidence available. There's no question that they had sex with her, but there's no way for her to prove beyond a reasonable doubt that it wasn't consensual -- and her lifestyle created that doubt. For example, if she had been a non-intoxicated virgin and had brought up witness after witness to testify that she had intended to wait to have sex until she was married, it would have been a lot easier for the jury to believe that she didn't consent to the activities in the video tape.

As an addendum, isn't this quote by the spokeswoman of the district attorney curious?

"It would take pretty strong information for us not to refile," said district attorney spokeswoman Susan Kang Schroeder, adding that no decision had been made.

"Sometimes, when you present evidence to a different jury, they come up with a different decision. I wouldn't put too much stock in what one jury has to say," she said.

Since when should one not attribute significance to the decision of one jury? How many juries are needed? I suspect the DA might have felt differently if he'd gotten a conviction.



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