* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
For me, the recently concluded rape trial in New York City is déjà vu all over again. Two of New York City’s finest, as the police refer to themselves, were found not guilty of raping a woman they escorted to her apartment from a taxi. All involved agree the accuser had too much to drink and one of the cops climbed into bed with her. The cop in the bed claimed he was only cuddling.
A member of the trial’s jury gave an exclusive interview to Women’s eNews. The juror said she believed the cops were guilty but, because of the lack of “beyond a reasonable doubt” type of physical evidence and the compromised memory of the accuser, the juror reluctantly cast a vote of not guilty.
Ten years ago, back when I was a Ms. magazine freelancer, I covered the story about four men who had sex with a women after she had passed out drunk in the bathroom of the Casablanca Restaurant in Gouverneur, a small town near New York’s northern mountains and the St. Lawrence River.
The case made national headlines and the state women’s groups started a huge ruckus when the local prosecutor agreed to permit the four men to plead guilty to misdemeanors. One of the men helped the story catch fire by telling the local press that what happened was merely a “gang bang.”
In that case, new charges were brought and in separate trials, four years after the fact, two of the assailants were found not guilty. The problem? She was drunk and no physical evidence was presented at the trial. Charges were dropped against the other two.
Just like the police-trial juror, I was sure the woman upstate was indeed raped and wrote a piece about the fact that if a woman is inebriated, she is not able to give consent.
In both cases, however, the defense arguments go something like this: She wasn’t passed out—unconscious--the whole time; she had a black-out during which she appeared more or less sober but she had no recollection of her actions. In the recent case, the defense argued that the accuser danced with the police officer while wearing only a bra.
As the juror in the police case said about the accuser who might have been in a blackout: “How do you know what came out of her mouth?”
Maybe the question should be flipped in cases such as these. Something like this could come from the prosecutor’s mouth: You sir, when you were with the accuser at the time of the alleged rape, you knew in fact that she was inebriated. What steps did you take to ensure that she was not drunk or drugged and was in fact capable of giving consent?
Imagine a legal world in which men had the affirmative obligation to ascertain that, in fact, their sex partner, especially one who was incapacitated in any way, gave consent.