"Why didn't she go to the police?" It's one of the most commonly asked questions about sexual assault, and on the surface, it makes sense. According to the Rana Sampson's "Acquaintance Rape of College Students," fewer than five percent of college women who are raped ever report it to the police (p. 4). If someone truly feels like a victim of crime, shouldn't they report it? And really, how will we ever stop rape if women refuse to go to the police?
Enter Jane Doe, of Orange County, California. Two years ago, Gregory Scott Haidl, 18; Kyle Joseph Nachreiner, 19; and Keith James Spann, 19, videotaped themselves with Ms. Doe, who 16 at the time. They were later charged with twenty-four felony counts of rape.
Jane Doe was at a party with the defendants, where she was given alcohol and marijuana until she passed out. Police suspect she was given a date-rape drug to help knock her out. Over the next twenty-one minutes, the defendants proceeded to penetrate her vaginally, anally, and orally with objects that included a lit cigarette, a pool cue, a glass bottle, and their own penises. All of this was videotaped. Haidl saved the tape as "a souvenir."
Haidl eventually lost the videotape. It was discovered by people who turned it over to the police, believing the boys were having sex with a corpse.
Like many survivors of sexual violence, Jane Doe had not reported the crime. Investigators used the video to track her down, at which point the matter was brought into the courts.
Enter the defense attorneys for Haidl, Nachreiner, and Spann. How do you defend your clients in a case like this?
Piece of cake. After all, this is America, where boys will be boys, and rape is in the eye of the beholder.
The defense began by exploiting a loophole in California's rape shield laws, which state that a "victim's prior sexual history cannot be used against them to undermine their credibility in court." This loophole has recently been closed, but at the time, it allowed the defense to bring up two key facts:
* Jane Doe and Keith Spann had consensual sex a week before the alleged rape
* Jane Doe was sexually active
Apparently in California, this makes it okay for Spann and his buddies to repeatedly assault Jane Doe. After all, she was sexually active, so she must have wanted it (even though she was unconscious). She probably lured those boys into forcing themselves on her. It was defense attorney Joseph G. Cavallo who asked the jury "Why isn’t she being charged with this crime?"
In his opening statement, Cavallo described the girl as "'a nut,' 'a pathological liar,' 'a cheater,' an 'out-of-control girl,' 'the aggressor,' a wanna-be 'porn star,' 'a troubled young lady,' 'a tease--that’s what she is!' 'a mess,' a 'master manipulator,' a 'little opportunist,' 'a compulsive liar,' 'a cheat--that’s what she is' and a 'callous' drug addict and alcoholic who trimmed her pubic hair, bragged about liking group sex and once drank a beer in a car" (Orange County Weekly, May 7, 2004).
In other words, Ms. Doe either consented to what the boys did (because she's a slut), or else she deserved it (because she's a slut).
Sadly, this approach worked. On June 28, a mistrial was declared. The Jury could not come to agreement on any of the twenty-four charges.
* Forget that the boys slapped Doe to make sure she was unconscious. When she didn't respond, one of them turned to the camera to say, "All right, she look pretty much good!"
* Forget that Doe's body had to be dragged onto a pool table so she could be violated with the pool cue.
* Forget that Nachreiner disappeared for 15 minutes to prepare Doe's drink, even though the bottle and cup were both in the room with them.
* Forget that Doe was so unresponsive she urinated on herself in the midst of the assault.
* Forget that a nurse found ten "jagged" tears in Doe's rectum, and many more in her vagina.
Forget evidence. Forget the law. The defense convinced the jury that Doe was a slut, and the slut card trumps both law and evidence.
Be honest. How many of us decided this crime wasn't quite as serious when we found out Jane Doe had consensual sex with one of the perpetrators a week before the incident? How many of us changed our mental image of Jane Doe when we learned she was sexually active?
Where did we learn that if a woman is sexually active - even promiscuous - then she deserves whatever happens to her? She deserves to be drugged and raped. Forget the three boys who deliberately chose to violate and use this girl; Jane Doe was asking for it. That's the message the defense tried again and again to drive home. That's the message that drove a wedge through the jury, leaving them deadlocked.
Jane Doe is not unique. A 2000 study of college women over a seven-month period found a total of 35 rapes per 1000 students ("The Sexual Victimization of College Women", p. 10). On a campus the size of MSU, with approximately 20,000 female students, that's 700 rapes.
Most of us are not rapists. I believe most people would find the actions of these three boys abhorrent. Nor are most of us as blindly aggressive as the defense attorneys, loudly proclaiming that rape victims have it coming.
We are the jury. We are the ones who hear about rape through newspaper and TV, through word-of-mouth and gossip. We are the ones who judge. We are the ones with the power to support survivors who come forward, and we are the ones who can drive them back into silence.
Jane Doe's case is scheduled for a new trial on August 6, 2004.
First published in The State News, 7/27/04