The Steubenville Rape Suspects May Go Free Because the Girl Wasn't 'So' Drunk

As even more graphic cellphone photos and complex testimony emerged on the second day of the rape trial in Steubenville, Ohio, defense attorneys for the two teenage boys accused of forcibly penetrating and masturbating on an unconscious 16-year-old girl doubled down on their contention that the girl's judgment wasn't impaired.

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As even more graphic cellphone photos and complex testimony emerged on the second day of the rape trial in Steubenville, Ohio, defense attorneys for the two teenage boys accused of forcibly penetrating and masturbating on an unconscious 16-year-old girl doubled down on their contention that the girl's judgment wasn't impaired. Pre-trial strategy and statements to the press made clear that the three lawyers for Steubenville High football players Trent Mays and Ma'lik Richmond would assert that the alleged victim gave consent as she travelled with them from party to party on August 11, but now they're also insisting that the prosecution can't prove which of the "various stages of drinking" the girl was in when the alleged rape occurred.

"We don't dispute that there was some level of intoxication," Adam Nemann, one of Mays's two attorneys told The New York Times in an interview after the prosecution made its case on the first day of the trial. "The question is, was she so intoxicated that she did not give consent?" In an update from Steubenville Juvenile Court published Thursday afternoon, the Times's Rich Oppel adds of the interview:

He said the state’s case is “difficult to prove, especially when you have various stages of drinking, various times in which the alleged sexual conduct occurred which still hasn’t been pinned down yet.”

Nemann and the defense team's strategy, thought to have gained momentum for their case by appeals in a separate court just before the Steubenville trial began, now appears to center on convincing Judge Tom Lipps that the state can't prove how much the alleged victim had drank at the time of the alleged crime. Nemann and his colleagues Brian Duncan and Walter Madison have now made Jane Doe's sobriety something of a moving target, meaning this trial may turn into a blurry reconstruction of a hypersexualized and very drunken night of post-football game partying.

Indeed, an initial wave of witnesses were called to ascertain just how drunk the alleged victim had become — four of the first six people to take the stand were teenagers who attended the parties in question, telling stories of drunkenness and cruelty. As WTRF-TV reports of testimony blacked out of a courtroom video feed and just emerging Thursday, "the victim and friends were drinking vodka, beer and mixed drinks at a home on Aug. 11, when she became increasingly intoxicated and her speech began to slur." The Times's Oppel adds that one witness said, "She was slurring her words and she would stumble when she walked," an observation which another witness shared. The first witness said the slurring/stumbling was allegedly happening even before Jane Doe had left with Mays and Richmond to get in a car to another party and before the alleged attack.

For the timeline of drunkenness to hold up and break the new defense strategy, the girl would have had to sober up some time before the sexual conduct occurred allegedly at another party and during one car ride. But according to one of the witnesses who saw her later in the night, he saw her unconscious:

Asked whether she had been unconscious, Mr. Pizzoferrato replied: “I think she was a little bit while she was on the couch” at a later party she attended.

Ms. Hemmeter, in a one-question redirect examination, then asked Mr. Pizzoferrato whether the girl “was the drunkest person in the room?”

“Yes,” he replied.

Patrick Pizzoferrato, a Steubenville athlete an friend of the defendants, isn't exactly the sterling epitome of class himself. According to his own testimony, Pizzoferrato observed Jane Doe being so drunk that he offered $3 to anyone who would urinate on her — an admission reprehensible and graphic enough on its own, but also damaging to the defense's. Judging by the many accounts from young witnesses for the defense so far, a picture emerges of a girl getting progressively more intoxicated throughout the night.

The court has yet to hear from the three other Steubenville athletes and friends of the defendants witnesses whose pre-trial testimony may end up helping the prosecution: They testified in October to seeing the alleged victim unconscious, silent, and barely moving when Mays and Richmond penetrated her at least twice with their fingers — once in a car where Mays allegedly unzipped the girl's shorts, the second after arriving at a party where Richmond sat next to her on a couch. Special Prosecutor Marianne Hemmeter added during opening arguments on Wednesday that Mays also allegedly tried to force his penis in Doe's mouth while Doe was she was unconscious at that party, and that he allegedly masturbated on top of her.

These graphic new depictions come as several new images surface beyond the infamous Instagram photo (at right) of Mays and Richmond carrying the alleged victim at a party. Throughout the controversial investigation by local police and the county sheriff's office, there was talk of more photos shared by students at the parties on social media that would appear at trial — and perhaps explain why Mays is facing an additional charge of illegal use of a minor in nudity-oriented material.

The first of the photos was submitted in court on Wednesday by Hemmeter, the special prosecutor, which she described as the alleged victim lying on her side with what looked like semen on her stomach — perhaps evidence of Mays's allegedly masturbating on her at the main party in question.

Another photo was described by Pizzoferrato in his testimony on Wednesday, according to the Times:

He said that late in the night — after the scene he described with the girl sitting in the street — he was shown a picture on a cellphone of the girl on her hands and knees while Mr. Mays was “standing beside her, off to the side a little bit,” and he was forcefully touching her buttocks.

And in Thursday's testimony, which centered on forensic evidence from extracting photos and text messages from among up to 4,938 contacts per cellphone, a witness from the Jefferson County Sheriff's Department said that he had seized cell hones there was two "totally nude" photos of a young girl, one of which featured the "girl on floor on her stomach," reports WTRF. The phones were picked up on August 16, around five days after the alleged attack occurred, some from a Steubenville High football practice facility. According to the Cleveland Plain-Dealer, Steubenville PD captain Joel Walker said he searched through thousands of pages of Mays's cellphone records and "found a couple of photos of a nude girl," with the girl on a couch and the floor. At the very least, if those photos are of the alleged victim, they could be considered child porn — a very serious facet to this already shocking case of rape, and perhaps the connection to the second charge against Mays.

But this week's testimony in what could be a very drawn-out case is primarily focusing on the rape charge and the issue of consent, a patchwork defense that may get direct rebuttal from the prosecution's star witness: In a marathon 11-hour session at court on Thursday, there was word out of Steubenville that the alleged victim herself might soon take the stand.

Update, 8:19 p.m.: Text messages revealed in court on Thursday afternoon include a link between Mays and his football coach surrounding the alleged crime, as well as the alleged victim's recollections from the night in question.

This article is from the archive of our partner The Wire.