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Question of consent key to high school rape trial

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    Could accuser have consented as defendants now claim?

  • Duration 7:23
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-- escorted back -- session on the docket today three teammates expected to testify today in the rape trial of two high school football players.

-- Toobin bill Ohio.

The two defendants say the sixteen year old girl said to be the victim in this case consented to the sex acts.

But prosecutors say the victim was so drunk she could not speak and could barely walk on the night of the incident.

This picture one of many shared.

Online after the incident stand by.

Other teens tweeting and texting about it and the question is whether this young woman.

Shown being carried by her two alleged rapists.

Was in any condition to consent and could they possibly have believed.

That she was capable of consenting on the night in question.

Joining me now David -- defense attorney and mark -- large former prosecutor now defense attorney.

This is not open and shut case I wanna say that the defense -- the boys claim that they are innocent that she did consent.

And they have some evidence to back up their claim but the prosecution's case.

Is also strong mark let me start with you how will they make the case.

That she the prosecution that she did not could not consent that these boys knew it.

Well they first start with a photograph I mean she looks like and that photograph that -- has the same ability to consent as a sack of potatoes.

But it's not just the photographs you've got.

Plenty of teenagers throughout the night who saw her and didn't say that she was just slightly impaired.

Maybe a little buzz she was wasted the words they -- were -- inebriated.

That she was the most -- girl in the room at one point she was sitting on the street corner.

With vomit next to her and her shirt was off.

These boys allegedly were paying other boys to potentially urinate on her.

They didn't thankfully but I cannot see how a judge could say that she had the ability consent with all these facts.

That was -- another teammate who who have that -- idea of of the urination he's not on trial but.

Did you sense for what was going on that evening one of the girls testified this girl's friend testified that they shared half a bottle of vodka these are sixteen year old golf.

Half a bottle blockages just this alleged victim and her friend and that she -- alleged victim had another died.

Drink a beer -- can of beer before she.

We wound up with these boys I mean David how does the defense -- -- that she was in any position to consent if that happened prior.

To the party and this -- was vomiting on herself -- around the time of the alleged rape.

-- -- and sad case all the way around they're gonna have to establish that the defendants themselves had a reasonable belief.

Based on the totality of the circumstances what she said before the events what she said during them.

What she said after the events that that she consented to the sex acts that took place.

It will be an uphill battle no question about that -- remember Megan.

There was forensic medical examination done of this child of this girl and it revealed nothing nothing that would ordinarily indicate a traumatic forcible rape.

Weren't -- -- not talking about clear national -- alleged they're not they're talking about an annual rate and even at that but there is no I understand that that's the problem that they have -- no doubt about it they're.

There is no bruising there was no physical trauma whatsoever though there weren't gonna boil down to the credibility.

Of each individual -- -- he said she said classic.

As far as what she said -- didn't -- -- Is it -- it let me get mark Beckett is -- he said she said when we have photographic evidence that we have witnesses.

Even for the even what we're giving testimony -- supposed to be helpful to the defense talking about how are right she wasn't passed out.

But she was barely conscious -- could barely lift your head.

-- The early -- my dear friend David to -- -- he said she said.

It's it's it's he said against a group of teenagers.

All of whom throughout the entire night.

Talk about just how impaired she was that you could barely speak she couldn't even -- head up and any act itself David you have a girl who's passed out.

And somehow she consented to being digitally penetrated and worse yet to being then photographed as one of the defendant did and placed around so that though the whole world concede she consented to that act.

Good luck proving that kids how -- -- -- David yeah.

-- -- A -- standard did they have a reasonable belief that she consented not whether she there is not from her perspective so I can't make it look there's no doubt about it we remember also.

This is not a jury trial so you can hang up -- -- -- -- hope for a hung jury this is a single judge in juvenile court and that presents the problem of not being able to appeal.

To any jurors emotionally or or issues outside the scope the -- this is one singular -- Listener and I wanna stand by it's a little -- -- on as well we're gonna pick this up on the other side and we're gonna pick it up with what this alleged victim said before the party.

-- markets -- one of the problems for the prosecution in this case is that if they can establish as they extended opening statements that they could.

That the victim had told friends in advance she wanted to have sex with the players.

Before she went to this party.

That's not help.

No it definitely wouldn't help.

I think however that even if she had a desire to have sex with them but that at some point became so inebriated.

That she couldn't stand up.

That she absolutely needed assistance if she was vomiting.

I don't think there's a judge in this universe would say that she had the ability to consent at that point but isn't it more not what -- not whether she had the ability David but whether the boy -- Understood that she didn't have the ability that.

True but I tried Wagoner that's right Megan but the look that statement that she made before the party is huge.

And -- witnesses corroborate that that establishes -- state of mind before she went there.

And it could be carried over to the party and it is the perception of the defendants as to her consent -- -- that is the issue.

And I gotta say I mean it's just absolutely incredible.

That it boils down to a victim and this is getting a star witness for the prosecution a victim herself was -- won't be credible.

Because of her state -- any creation.

Don't get as good as everybody says regarding -- I -- yeah I -- I don't remember.

I'm very -- other witnesses who come in one of the witnesses got up there and testified that that that the victim -- -- alleged victim had said she was fine and did not need a ride back to an earlier party.

Although she was slurring her words and stumbling that's the -- stuff it's gonna come in for the defense.

Here's the question I have for you mark does this come in because it wasn't just these two boys who who were at the center of the controversy.

The team and their reaction to the condition of this woman.

Became the center of this story for awhile here is eighteen mate who wasn't there -- the alleged -- that was shown a videotape or saw the girl.

Shortly thereafter and listen to his attitude about.

Little slips up I don't know really -- really.

She's the editor Andy Reid sent helps.

And he goes.

On an does that -- does that yet.

Judge.

It should absolutely.

Not a judge interestingly enough -- was the what it decides.

What comes into evidence of what doesn't which means the Trier of fact is hearing everything unlike the jurors now should be able to compartmentalize because that you know not -- does that do Megan defendant and that is not -- defend mark is absolutely right.

That's -- -- would -- it would effected juror no question shouldn't affect the judge.

-- good debate guys it's on trial they actually expect we may have a ruling by Sunday is this is in juvenile court thanks for being -- will be right back.

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