Here is the Santa Clara County District Attorney Dolores Carr's statement about why she isn't filing charges in the De Anza rape case. My comments follow each section.
When I ran for office, I pledged that I would make decisions based on the evidence, justice and fairness, not on politics or popular opinion. Many in our community are outraged by my decision not to file sexual assault charges in the De Anza baseball team case. I made my decision only after a careful and exhaustive assessment of all available, relevant and reliable evidence.
What's missing from the list of what this decision is based on is the bias that pervades our society and our juries. This bias not only contributes to victims not getting justice, it contributes to men thinking that sexually exploiting drunk girls is normal and acceptable behavior.
That means her decision is based in part on popular opinion, just not the opinion of those who disagree with her decision on this particular case. It is based on the opinion of those who think rape should be legal as long as the rapist isn't using overt force or who make excuses for premeditated actions by those who provide alcohol to minors and then who claim that alcohol should excuse them from accountability.
The reality is that the opinions and attitudes which led to these men's actions is what leads to them not being charged.
As the former leader of the Sexual Assault Unit in the district attorney's office, I know that no matter how compelling the evidence may seem at first glance, sexual-assault charges can be difficult to prove beyond a reasonable doubt. Parties where young people become intoxicated pose particular problems. The credibility and memories of witnesses are easier to attack. Having more witnesses is not always an advantage if their recollections differ. And intoxicated people behave in ways that they ordinarily would not.
This last sentence comes across as an excuse for rape as it implies that many of those who rape while intoxicated believe that raping while intoxicated is a crime, but that they just became too intoxicated to realize they were committing rape. The problem with this is that this situation has the markers of premeditation. A sober decision was made to provide alcohol to underage girls and then to use the fact that a girl consumed alcohol as an excuse to do anything they wanted to her. Because she got herself drunk.
That statement is a blatant lie. Those who believe it do so because they like the benefits of that lie.
Boys and men who drink alcohol and serve it to girls or women with the specific goal of getting the other person so intoxicated they can't walk away from even horrific acts committed against them are so common that this behavior is frequently called normal. At parties where alcohol is present, those willing to rape will often openly troll for the most impaired and work to isolate their target.
This premeditated action isn't a deep dark secret. It's why so many people tell girls not to get drunk even in situations where there are no obvious rapists. Just because this type of rapist is common and rarely scorned by the men around him doesn't mean we should excuse these rapists or let them continue raping with the law's blessing.
Unfortunately, many prosecutors don't focus on the sober premeditation when trying to prove their case. Who bought the alcohol? Were any non-alcoholic drinks provided and if so, were party guests encouraged to abstain from drinking alcohol or to at least drink in moderation? Why did those who lived at the house allow a minor to drink? Did any of the men give this girl alcohol? If so, how much? If the prosecutor shows that the men gave her enough alcohol to make her drunk and didn't worry that they might be giving her enough alcohol to kill her, it becomes harder for those men to deny knowledge of her drunkenness or to protray themselves as people who would never harm another human being.
Is it sexual assault when a victim is too intoxicated to consent to sex? Yes, but we must prove beyond a reasonable doubt that the victim was so impaired that she could not understand what she was doing. We must also prove that the defendant should have known that she was incapable of consenting. This can be very difficult when the defendant and witnesses offer competing versions of the victim's condition.
This section highlights a bias by potential jurors in favor of those who use alcohol to facilitate sexual assault. Of course there will be competing versions of the victim's condition. What rapist is going to tell the complete truth, even under oath? In evaluating all those versions a jury should weigh those opinions and the honesty of those opinions based on motivations.
The DA also makes the mistake of saying that they must prove that the victim didn't understand what she was doing when in fact if she was too impaired it wasn't her doing the doing. This statement creates a clear bias against victims of sexual assault which involve alcohol since it assumes they were co-actors in alcohol-facilitated sexual assaults. This reinforces the "she did this to herself" and "morning-after regret" bullshit.
This case fits that mold. Many of the witnesses had been drinking, some heavily, and their stories were not always consistent. But, most important, the victim told investigators that she did not remember anything that happened from shortly after the time she arrived at the party. The victim would be unable to counter claims that she had consented. The trial would be fought over differing versions of the victim's sobriety and behavior, with several witnesses and potential defendants motivated to paint her in an unfavorable light.
This section is clearly contradictory. It's sexual assault when a victim is too intoxicated to consent, but if the victim was too intoxicated to testify that she was too intoxicated to consent and too intoxicated to remember every detail of what happened to her then it becomes impossible to know if a sexual assault occurred.
If her black out began shortly after she arrived that should be a huge red flag and a reason for a DA to focus on the amount of alcohol she was given and whether she was ever pushed to drink more potent alcohol or to keep drinking.
The result would be such a confusing and conflicting account of what happened that we would be unable to persuade 12 jurors to convict. For example, the media reported that the victim vomited. But lab tests showed that the vomit did not come from her. The defense would challenge any account which depended upon the vomit to prove that the victim was too intoxicated to consent.
This detail shows how twisted beliefs are about alcohol and consent. The witnesses who removed vomit from the girl's face couldn't fathom that not only would a man have sex with a girl who was non-responsive after vomiting, but that this man or one of the others in that room would vomit on her as foreplay. And this fact is supposed to increase the amount of reasonable doubt?
This evidence shows a level of disgust toward this girl which fits with the attitude held by rapists. This shows that this was a group of men celebrating the powerlessness and humiliation of a minor girl.
What a warped world we live in when this action can be used to shore up the criminal defense.
These cases depend upon a careful weighing of the facts. However, now that we have decided not to file charges, ethical responsibilities limit my ability to discuss all of the evidence in this case. My first duty is to the teenager, who did not choose to have her life dragged into the media. When we do not file charges, it is unfair to the victim to release details of the incident in order to justify our decision.
The problem with this statement is that these cases involve a lot more than just weighing the facts. Often they come down to weighing the probabilities. One of those probabilities is how quickly criminal charges against men would transform into a situation where the alleged victim is put on trial -- minus the legal rights of a criminal defendant.
All the attitudes which lead to alcohol-facilitated rapes come up with a vengeance at rape trials were alcohol is involved.
Releasing such information would also discourage victims from reporting assaults in the future.
Failing to file charges when a girl is rescued also discourages victims from reporting. It supports the idea that rapists will get away with rape and the only question is how much trauma the victim must endure before those rapists walk away free and clear while declaring themselves "the real victims."
Sometimes a prosecutor is right to not file charges because they don't have the skill to put the pieces together strongly enough to overcome the bias which says what those men did was normal and legal.
I must also respect our responsibility, as prosecutors, to the accused. As U.S. Attorney Patrick Fitzgerald said after deciding not to indict Karl Rove in the Valerie Plame spy case, "We either charged someone or we don't talk about them." The Duke lacrosse team case shows how statements by prosecutors can damage lives even when no charges are filed.Like statements by prosecutors can't damage the lives of rape victims. This statement also shows that the Duke case was a factor in this decision and by using that as an example, it can be used by some to draw unfounded conclusions about the victim in this case and about the women who rescued her.
And what of the three soccer players who witnessed men huddled around a man having sex with a teenage girl? I salute their honor and courage in intervening to rescue this girl from a horrible situation. But they only saw the last 30 to 60 seconds of a two-hour party. The totality of the evidence of what happened that night would make it impossible for us to prove sexual-assault charges beyond a reasonable doubt against anyone.
The problem with this is that we don't use this standard in other crimes. If the girl was too impaired to consent at the second those soccer players entered the room, then all of those already in the room were involved in a crime. It doesn't matter what the girl did or said when she wasn't too impaired to consent.
If the law allows it to matter, the law needs to change.
It is the pervasive bias about rape, even gang rape, which causes so many people to dismiss the reality of a girl needing to be rescued and hostile men who were clearly sober enough to resist that rescue and then to scatter once the rescuers made it clear they weren't leaving without the girl who couldn't speak for herself as the women were trying to get to her.
Unfortunately, the district attorney's office receives complaints of behavior which, while abhorrent to us all, do not provide a sufficient basis for a criminal prosecution. Filing charges in such cases would be an abuse of my authority. This office will continue to aggressively protect this community from sexual predators within the confines of the law and the evidence presented. In this case, the law and the evidence made a prosecution impossible.I disagree that it was the law and the evidence which made this prosecution impossible. It is the bias which allows so many rapists to rape while denying the label they have earned that makes so many prosecutions impossible.
Finally, I appreciate the community making its voice heard, even in protest. I will continue to listen, and when appropriate, respond, to ensure that our criminal justice system remains open and transparent.I wanted her to better educate the public about what the rape laws are so that those who aren't charged can no longer claim ignorance of their crimes. We need to clearly see the difference between non-rapists and rapists who got away with one or multiple crimes.