More Details Emerge in Decision to Not Prosecute MSU Rape Allegations

by Cara on October 7, 2010

in class and economics, law enforcement, misogyny, patriarchy, rape and sexual assault, violence against women and girls

Trigger Warning on post and links for descriptions of sexual violence and rape apologism.

Last week, I wrote about a case in which rape allegations were made against two Michigan State University basketball players, but the district attorney declined the police recommendation to prosecute the two men. This decision was made despite indications in the police report that one of the two alleged perpetrators had corroborated the accuser’s account, and the alleged victim spoke to the media about her outrage and distress at the decision to not go further with the case.

Since then, student protests have been held, and the Michigan Messenger has stayed on top of the story with comprehensive coverage. In response to the vocal criticisms of the decision to not prosecute, Ingham County Prosecutor Stuart Dunnings III released full transcripts of the interviews with the one player and with the victim (pdf, and obviously a trigger warning). Ed Brayton writes at the Michigan Messenger:

The interview transcript does appear to add a fair amount of ambiguity to the information contained in the police report, which contains paraphrases of what was said during the police interview. But that ambiguity also seems to cut both ways, allowing people to reach opposite conclusions about whether it supports or diminishes the credibility of the victim’s story.

After my own reading, that’s an assessment that I would more or less agree with. The accused player’s interview hardly amounts to a confession by any means. A lot of his statements are ambiguous, and I wish that police had done a better job of asking him questions and seeking clarification. Still, he does appear to agree with several key parts of the victim’s story, and at the very least indicts his fellow player, if unintentionally and in an extremely apologist manner. As for the accuser’s interview, my admittedly amateur reading finds her both credible and extremely clear in her assertions that a) she never gave affirmative consent to sexual contact and b) at several points she explicitly stated her lack of consent.

But as stated, I’m not an expert on the legal side of this issue. So I found it interesting that the Michigan Messenger took the time to seek out three individuals who are — a former prosecutor of the same county this case took place in, Thomas Rasmusson, defense attorney Joshua Moore, and “nationally recognized expert in sexual assault investigation and prosecution” Steve Thompson. I’m not going to lie and say that it doesn’t chafe at me that all of these experts just so happen to be men (though, it should go without saying, women are as a generally rule sadly no more or less rape apologist). But what they had to say was interesting, and I was surprised to find that not all of them followed the “party line” I would have most expected:

Rasmusson said the testimony of the victim raised certain “red flags that make me worry about the allegations.” He was not specific about the items that raised those concerns, saying, “I do not want to embarrass [the alleged victim],” but he said they involved “certain details and absence of details” and “circumstances leading up to the events” that would make him worry about getting a conviction in the case.

The bottom line, he said: “It is unlikely I would authorize a warrant without more.”

But Moore and Thompson had opposite reactions.

“I do not understand why the prosecutor chose to say that ‘no crime’ happened. It is very clear to me that, at the very least, this should have been investigated more,” Thompson said. “In the police interview with one of the suspects, the suspect clearly indicated coercion and lack of consent. The survivor’s behavior after the assault indicated physical and emotional trauma that is not associated with consent. If this is not a crime, I do not know what is.”

Thompson said after reading the interview with the victim he felt even more strongly that a crime was committed.

“She indicated several times that she did not want to engage in the behavior,” he said. “In sexual assault one does not have to scream and resist in order to prove lack of consent. The presence of intimidating force resulting in submission and compliance was evident to me.”

Defense attorney Joshua Moore says, at the very least, more investigation by the DA’s office was needed before reaching the conclusion that no crime was committed.

“While there is no evidence per se of crime committed from the statements of the interviewee, there are definitely indications that a crime could have been committed (probable cause) and additional evidence and/or investigation would be warranted,” Moore said. “There is corroboration of the alleged victim’s statement that there was, at minimum, statements that the alleged victim asked the alleged perpetrators to ‘stop’ at some point.”

Moore says there was “most certainly be probable cause to issue first degree criminal sexual conduct charges” under Michigan law because there was “no evidence from the interviewee’s statement to discredit and/or invalidate the alleged victim’s statement.”

I expected the director of sexual assault prevention programs to come down on the side of the victim. And I initially expected the prosecutor to come down on the side of prosecution — though I immediately recognized this as naive, on the basis that prosecutors generally like to go forward only with the most clear cut of cases. I don’t know what Rasmusson meant by his ambiguous comments, but my educated guess is probably shared by many readers here, as is the negative opinion of it. The one thing I was most certainly not expecting was the defense attorney to support issuing charges against the two accused players.

Which just goes to show where assumptions and bias will get you. I write so much about defense attorneys doing their job really unethically that I find it really easy to forget that there are many out there who really are out there just plain old working for justice. Everyone deserves fair and vigorous representation in court, and far too many people in the U.S. legal system don’t get it. The work done by ethical defense attorneys really should be considered invaluable. So while I can’t say that I know what his record in court looks like, I can say that in terms of what he has to say for this article, a big old kudos to Joshua Moore for being a defense attorney who doesn’t fall for rape apologist lies.

I do recommend clicking through to read the rest of what the panel had to say — it deserves a trigger warning, but no more so than the content presented within the post here. I’ve also received word that some of the readers here have responded to the story directly through the Michigan Messenger, and provided invaluable feedback. So a big kudos to you, too, for speaking up, showing solidarity with victims of sexual violence, and sharing your own stories.

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