The Steubenville Defense Will Center on Date Rape Not Existing

The trial starts Wednesday, and despite pre-trial testimony from teammates describing an unconscious 16-year-old dragged around by her hands and feet before she was penetrated, it appears that the lawyers for Trent Mays and Ma'lik Richmond will say the case's Jane Doe consented to the whole thing.

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Update, March 13Click here for an in-depth preview of the trial on both sides, here for the prosecution's opening statement on Day One of the trial, and here for ongoing coverage.

Orignal post: The very public trial of the very publicly shamed "rape crew" will begin on Wednesday in Steubenville, Ohio, and despite pre-trial testimony from three as-yet-untried high-school athletes who say they witnessed an unconscious 16-year-old dragged around by her hands and feet, and slurring her words, and at one point lying on the ground before she was penetrated, it appears that the lawyers for Trent Mays and Ma'lik Richmond will say the case's Jane Doe consented to the whole thing. We're not kidding. "Defense attorneys believe the girl, who lived across the river in Weirton, W.Va., made a decision to excessively drink and -- against her friends' wishes -- to leave with the boys. They assert that she consented to sex," reports the Cleveland Plain-Dealer's Rachel Dissell. Richmond's attorney, Walter Madison, is getting specific, citing "an abundance of evidence here that she was making decisions, cognitive choices ... She didn't affirmatively say no."

The alleged victim is not expected to testify when the trial begins in Jefferson County juvenile court — before outside judge Tom Lipps took over for a recused judge with ties to the famed Steubenville High football team, a West Virginia judge blocked a subpoena of the girl and two other witnesses called by the defense. But that hasn't stopped Richmond's attorney from using Jane Doe's so-called "silence" against her: "The person who is the accuser here is silent just as she was that night, and that's because there was consent," Madison said.

May we take a minute, while allowing all due process to run its course, to remind America that date rape exists? That under the law, even though a woman or girl may accompany her attacker, that does not equal consent? And that, under the law, a woman or girl under the influence of drugs or alcohol, willingly or unwillingly, is not at fault for being sexually assaulted? Date rape is a felony under Ohio state law — with two mentions of controlled substances under the National District Attorney's Association classification of rape:

And here:

Make no mistake: Mays and Richmond are being charged with rape — a kidnapping charge has been dropped, though Mays is also facing a charge for "illegal use of a minor in nudity-oriented material." But this is juvenile court, and the defense appears to be centering its argument on the alleged victim as a drunk out-of-town football groupie — that she was drinking excessively enough to follow Mays and Richmond from party to party, but not enough to substantially impair her judgment. That strategy would seem to rely on hearsay and the fact that, despite all the leaks and viral videos to go public in the case, the actual police work doesn't have much physical evidence.

And the not-drunk-enough consent defense doesn't align with the pre-trial testimony from Evan Westlake, a wide receiver on the Steubenville team who testified — along with two other athletes who will not be held accountable in this trial, though the door is still open to separate prosecution — that he had witnessed the "defendants carry the alleged victim out of the house by her hands and feet" at one point. (That episode appears to have been captured in the Instagram photo at right that has been the hallmark of a trial preceded by social-media images and uproar.) Nor does the defense's strategy appear to line up with more pre-trial testimony from Steubenville football player and party-to-party driver Mark Cole, who testified that the girl "was just sitting there, not really doing anything ... She was kind of talking, but I couldn't make out the words that she was saying." And then there's this, from The New York Times's account of the pre-trial testimony apparently given by Steubenville athlete Anthony Craig — the defense's explanation does not seem to fit with his testimony that Jane Doe was penetrated while unconscious:

At one point, the girl was on the ground, naked, unmoving and silent, according to two witnesses who testified. Mays, they said, had exposed himself while he was right next to her.

Richmond was behind her, with his hands between her legs, penetrating her with his fingers, a witness said.

We'll be curious to see how the defense argues that a 16-year-old girl, carried by her hands and feet and then penetrated while unconscious, was making a "cognitive choice." An entire party doesn't call someone "dead girl" just to give a defense team a case, but justice begins on Wednesday, one way or the other, and, yes, there will be media allowed in the courtroom for all to see.

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