Rape Incident

[gregathon]

What is the name of your state (only U.S. law)? Michigan

Hello everyone, rape really isnt an easy topic to talk about but I guess I've got to start somewhere. Before I begin I'd like to say that I am personally not the rape victim or rapist. I am the best friend of the victim, who is scared and just barely emotionally getting by. She wants to take action and thats why I am posting.


My question is whether or not she has a case, and whether or not its a strong case.

In February of this year my best friend went to a cabin with a bunch of friends. She (for lack of a better term) got roped into bringing along a friend of hers who had an intense passion for her and wanted her romantically. She made it very clear to him that she was not interested in him. She was 18 and he was 17. When they arrived at the cabin all their friends had been drinking and she soon followed. She had only 3-4 shots of vodka, enough to get her tipsy. Her guy friend she brought along had nothing to drink that night. She went into her room and wanted to go to bed when the guy friend came in offering another drink and tried coaxing her to come back out with everyone. She did not take his drink. She was getting down from the bunk she was laying on when her guy friend was "helping" her by grabbing the back of her legs and tugging. Her hands slipped and she hit her head. Now she was really out of it and wanted to sleep. She does not remember anything after that. That night her guy friend had intercourse with her 3 times. The 3rd time without a condom.

She visited her gynecologist a few days later and no DNA could be found. She does have a report with her gynecologist for the bruising inside of her which was deemed a "forced entry". Her neighbor took a look at her head and said she suffered a concussion but no actual report was filed. She has texts left on her phone from the guy who had done this admitting that it was horrible of him and he knew she had no control. Several other key texts along those lines are saved. Her friends would likely testify in a case if she wanted them to. Bottom line is she has her gynecologist report and the guys texts messages apologizing and admitting to what he did.

Two other noteworthy things are he told her he might have herpes, and herpes were found present in her system. She also got pregnant from him but had a miscarriage within the second month. The report of the miscarriage is not documented, she went to a free clinic under a different name because she was so ashamed.


She wants to take action and I would like to know what the chances are of the guy being convicted. She is emotionally torn apart. Some legal advice would be very much appreciated.

Thanks for reading

[PhlawedPharmacy]

Did the friends willing to testify see any of this?

The texts are the only other thing that sounds helpful. A lot of time has gone by.

This sounds more like an abortion than a miscarriage?

[gregathon]

Originally Posted by PhlawedPharmacy

Did the friends willing to testify see any of this?

The texts are the only other thing that sounds helpful. A lot of time has gone by.

This sounds more like an abortion than a miscarriage?

One friend was completely wasted when he walked in and saw them in the act of intercourse. Two other friends left the room when they heard the bed creaking above them.

And no it was not an abortion. She had taken 3 pregnancy tests at home, 2 came back positive and 1 negative. She had her period but it was extremely painful for her. Her flow was chunky. She visited the clinic and thats where they told her it was a miscarriage.

[PhlawedPharmacy]

If he is not going to corroborate the accusation (admit to it) I wouldn't give it more than 50/50, and if he ONLY speaks through an attorney and has competent representation from the start it will be unlikely to get a real conviction. You can put him through genuine hell and expense for sure.

Unless the texts state that he knew she was unwilling, and not just apologies for allowing sex while they were drunk, or less than desireable circumstances, etc, they aren't going to be damning. They'd also have to be still in the phone, not printed out or forwarded.

The witnesses likely will only be able to confirm it looked like they were having sex.

The gynecological report will only go so far. The type of tearing and evidence really necessary to meet the burden would be a product of some really vigilant fighting back during the process, and this sound more like a passive, out of it type situation. Sex 3 times in a short period under any circumstances will leave tissue that sensitive inflammed and somewhat excoriated (torn).

There's no way to determine when someone contracted an STD, unless it was especially progressive on a known and regular schedule. You could narrow down HIV to some degree but not herpes.

That leaves her word against his, and she has to admit to being compromised mentally at the time, which has upsides and downsides for the case. The defense will certainly focus on the downsides.

The issue of time will come up and not go away. We know that anger builds over time and there's a period of denial and all sorts of common things, but there are also lots of complaints that happen within a day or two of the event, and they would tend to be more credible at first look.

Last, she's going to have to realistically assess the emotional impact this will have on her as well. Not only will it drag out for a year or more, the defense will look for lots of ways to discredit her, look into past relationships etc. It would not be easy for her either.

Stand by for other opinions!

[gregathon]

Originally Posted by PhlawedPharmacy

If he is not going to corroborate the accusation (admit to it) I wouldn't give it more than 50/50, and if he ONLY speaks through an attorney and has competent representation from the start it will be unlikely to get a real conviction. You can put him through genuine hell and expense for sure.

Unless the texts state that he knew she was unwilling, and not just apologies for allowing sex while they were drunk, or less than desireable circumstances, etc, they aren't going to be damning. They'd also have to be still in the phone, not printed out or forwarded.

The witnesses likely will only be able to confirm it looked like they were having sex.

The gynecological report will only go so far. The type of tearing and evidence really necessary to meet the burden would be a product of some really vigilant fighting back during the process, and this sound more like a passive, out of it type situation. Sex 3 times in a short period under any circumstances will leave tissue that sensitive inflammed and somewhat excoriated (torn).

There's no way to determine when someone contracted an STD, unless it was especially progressive on a known and regular schedule. You could narrow down HIV to some degree but not herpes.

That leaves her word against his, and she has to admit to being compromised mentally at the time, which has upsides and downsides for the case. The defense will certainly focus on the downsides.

The issue of time will come up and not go away. We know that anger builds over time and there's a period of denial and all sorts of common things, but there are also lots of complaints that happen within a day or two of the event, and they would tend to be more credible at first look.

Last, she's going to have to realistically assess the emotional impact this will have on her as well. Not only will it drag out for a year or more, the defense will look for lots of ways to discredit her, look into past relationships etc. It would not be easy for her either.

Stand by for other opinions!

Thanks a lot phlawed. She does have reasons for waiting. She couldnt be going through the system while softball was still in season. She refused to let her rapist take that away and take away all the scouting opportunities there were for her at the time (among other plausible reasons) Now that shes in college and has a stable job, things seem well enough for her to take on this case.

There is no stature of limitation on rape because typically a rape victim is scared and cannot handle more emotional trauma so quickly. Thats why her report would be taken at a police department because they recognize that.

As for the drinking, isnt in this case rape referred to as not being in the proper state of mind to say she wants it? Even if she was begging him for it (which was not the case) isnt that still considered rape because she was not in the proper state of mind? To me, thats bottom line.


So far she has talked to practical law teachers at our school and a deputy sheriff all saying she has a strong case. Im just looking for another opinion. They have only pointed out that she has had sex with 4 guys before this incident but they were all her boyfriends and were long term relationships. So on the defense, they would use "promiscuity".

So far other people have not been concerned on proving whether or not the act happend but whether or not it was rape. As I mentioned above, I THOUGHT it could be proven. The guy would just need to slip up and say he wasnt drinking and that she was. He would have to lie and say he was drinking in order to cover himself. Halfway correct?

[PhlawedPharmacy]

SOL is either never or 10 years depending on the charge, but still a good long time.

I probably wouldn't go ultimately with the softball explanation.

The alcohol again has upsides and downsides. I'm not aware of any strict liability with one drinker and one sober, but someone else may weigh in on MI law for that. Possibly it applies to first time only. At the risk of some levity, if it weren't for alcohol, we'd all be having a lot less sex... for instance I don't drink but my wife does.

There's a fine line between a strong case, and a strong amount of probable cause. Yes you would probably get an arrest out of this, and on a practical level, over 90% of all cases are simply plead out with no trial, so most DO in fact end in some sort of conviction. It really depends on his resolve and whether he is scared enough at the threat of the worst possible consequences.

I assume it would be understood that the sex occurred, but again I can't say for sure there is strict liability where only one drinker is concerned. I would take your local law professors word on that, but don't rely too much on police for actual legal advice, that's a whole different ballgame than making arrests and testifying later.

Hope that's helpful!

[gregathon]

once again, thank you phlawed. youve been a great help.

[CdwJava]

Originally Posted by gregathon

Thanks a lot phlawed. She does have reasons for waiting. She couldnt be going through the system while softball was still in season. She refused to let her rapist take that away and take away all the scouting opportunities there were for her at the time (among other plausible reasons) Now that shes in college and has a stable job, things seem well enough for her to take on this case.

The time delay will play against her. Not only do memories fade and witnesses move on, but the likelihood of obtaining evidence fades. Text messages she has are great, but to prove he sent them they would either need his confession or obtain the records from the phone companies involved. Records of these transmissions may not be available over time and the case becomes more difficult. The defense can also use hat delay to concoct an ulterior motive to bring this out ... spurned recent advances, attempts to extort money, etc.

There is no stature of limitation on rape because typically a rape victim is scared and cannot handle more emotional trauma so quickly. Thats why her report would be taken at a police department because they recognize that.

Actually, there IS a statute of limitations - it appears to be ten years. But, as I mentioned, the longer she waits the harder the case becomes.

As for the drinking, isnt in this case rape referred to as not being in the proper state of mind to say she wants it? Even if she was begging him for it (which was not the case) isnt that still considered rape because she was not in the proper state of mind?

The state would have to prove that she was incapacitated and that the suspect knew she was incapable of granting consent due to her incapacitation. Ultimately, none of the friends were in the room at the time fo the event, so they might be able to testify to the couple having sex and that they had both been drinking, but they might not be able to testify as to her state of mind. As already mentioned, if these text messages contain admissions on his part that she was passed out or otherwise incapable of granting consent, this will be a big plus. And, the police can try to sucker him in to a pretext phone call where she calls him and talks to him (or scolds him) about the incident attempting to gain his admission to the act.

She needs to go to the law enforcement agency where it occurred immediately.

They have only pointed out that she has had sex with 4 guys before this incident but they were all her boyfriends and were long term relationships. So on the defense, they would use "promiscuity".

Rape shield laws will generally prevent her sexual history from being introduced at trial. Unless the prosecution alleges she was a virgin, the fact that she has had sex before will likely be held as irrelevant at trial.

So far other people have not been concerned on proving whether or not the act happend but whether or not it was rape. As I mentioned above, I THOUGHT it could be proven.

Everything in law is about what can be proven. Sex is not rape. Rape requires a specific set of circumstances. Whether this can be proven we cannot say with certainty. But, time does not play in her favor. She needs to act soon to report this.


- Carl

[gregathon]

Thanks Carl

Though I did not personally read the text messages, they said something very much along the lines of "im so sorry, that was the biggest mistake of my life, I knew you were not in control and didnt have a choice". The text did not say about her being intoxicated but he used a different word to describe it. I reviewed the story with her last night.

All the friends there knew she was not interested in him, if that means anything. She does not sleep around with guys.

The next morning everyone was in the same room when one of the friends said "So you guys hooked up last night" to which the victim was completely flabbergasted.

The texts from the rapist are still on her phone as they were sent to her from him.

***EDIT*** She was drinking and he was NOT drinking. ***EDIT***

Since this event the victim also has attended psychiatric help for nightmares she was having, and still has of the guy who did this.


Just listing all this for what its worth. I really appreciate the help you all are giving. It hurts to see her still so broken.

[CdwJava]

Originally Posted by gregathon

Though I did not personally read the text messages, they said something very much along the lines of "im so sorry, that was the biggest mistake of my life, I knew you were not in control and didnt have a choice". The text did not say about her being intoxicated but he used a different word to describe it. I reviewed the story with her last night.

Hopefully she still has them saved, and the messages are not more than a few months old.

All the friends there knew she was not interested in him, if that means anything. She does not sleep around with guys.

It may or may not mean much ... if she brings up her sleeping habits, she can expect old boyfriends and any guy she has ever flirted with to potentially be brought up. It's doubtful the prosecution will bring up her sexual habits because that can open a door that may not be good. Little old ladies and housewives on juries tend to view girls that get drunk in mixed company with skepticism anyway, there is no reason to allow the defense to paint her as a tramp (and having sex with four different guys can be portrayed that way).

The texts from the rapist are still on her phone as they were sent to her from him.

Again, the fact they are on her phone and ostensibly from him does not prove they are. The state would have to produce records from the phone companies to show they came from a phone that was connected to him in some way. Now, if he admits that he sent them, that would make things easier.

***EDIT*** She was drinking and he was NOT drinking. ***EDIT***

Okay ... not entirely relevant. Her sobriety and ability to grant consent is in question, not his sobriety.

Since this event the victim also has attended psychiatric help for nightmares she was having, and still has of the guy who did this.

That could help, too.

Just listing all this for what its worth. I really appreciate the help you all are giving. It hurts to see her still so broken.

So, when is she going to the police? The longer she waits, the harder the case will be to prosecute. It is already going to be difficult, but not impossible. Every week she delays is a week that evidence is lost and witness statements become more wobbly.

- Carl

[gregathon]

She originally was going to today but her mother wanted her father to be present so it will be this week. She is making more psychiatrist appointments to document the psychological effect he has done.

The problem is the guy that did this was close to her. He knows she has been with more than one guy. Before that night she had never drank alcohol before. She has always had good grades and made it into a good college and has never broken the law until she drank under age.

The guy admits that he and her had sex. It goes around our school. His story is that she was totally willing but tipsy. The texts that he sent her contradict the story.

The following week he showered her with gifts and attention and wanted to take her out on a date and have a relationship with her. It shows this guy was really a creep. She also has a text saying "I only did it because I thought it would make you love me".

She is searching for absolutely anything to use in a case.

The event happend. There is no getting around the fact. Whether its proven in court or not, he had intercourse with her. She needs to figure out how to prove it was rape.


Sorry if I show emotion through my writing. Its hard to present this information in its most blunt form.

[CdwJava]

SHE does not need to prove it was rape, the state does. The sooner they can get to work on it, the better the chances that might happen.

The texts you have thus far provided can have alternate interpretations, so by themselves they won't be completely damning. These kinds of cases hinge on a multiple angle approach, and it may well be accomplished. But, regardless of the outcome of any criminal investigation, she needs to maintain the counseling regimen.

- Carl

[ellisr]

In my experience, everyone has a really strong opinion about whether or not the victim should cooperate and testify if the State decides to prosecute for the Assault. If she's telling the truth, she's telling the truth. And he might walk away. But at the end of the day, she will know that she didn't just pretend it didn't happen and that she took part in the American Justice System.

But if at the end of the day, he does walk, she needs to be able to remember that experienced a horrible situation and held her head up high, and can move on. (testifying, being ripped apart by the defense, recounting every personal detail to a room full of strangers, remembering what it was like to experience it then, and re-experience it).

If that seems impossible, or her gut is too afraid, then maybe counseling and no testifying would be better. It really is an awful experience, and aquaintence rape is something that if she does begin cooperating with the police, other's in her life will feel compelled to comment on. A lot of really good intentioned people could potentially advise her against it, because the conviction is so hard to get. And it can be pretty traumatic.

Maybe it's stupid, but I say, if she tells the truth, and the LE investigating brings it to the DA, and they want to proceed because they believe there is enough evidence, then she just needs to say what happened. And she will remember because she was there. And if she doesn't remember, she needs to say that.

As for the defense using witnesses who did witness what occurred, but are potentially going to lie about it....let em' lie. This isn't t.v. Maybe one of them is a good liar, but the chance that four of them testifying on the stand are all going to be keep their story straight? Good luck with that!

Tell the truth, testify, get counseling. If not, just get counseling and attempt to keep moving forward.

[ellisr]

Originally Posted by CdwJava

SHE does not need to prove it was rape, the state does. The sooner they can get to work on it, the better the chances that might happen.

Someone also said this to me, almost word for word in the immediate aftermath of what happened. And it ties for first place in the most valuable statement anyone said during the entire thing.

[CdwJava]

Originally Posted by ellisr

Someone also said this to me, almost word for word in the immediate aftermath of what happened. And it ties for first place in the most valuable statement anyone said during the entire thing.

They must have very similar training and experience to mine.

- Carl