How Can You Defend a Rapist?

The story the 16-year-old victim told the cops was that she had been dating my client for several months but then broke off the relationship. A few days later, she said, my client and one of his friends showed up at her house when her mother was away. When she refused to let them in, my client supposedly asked if she would just loan him her cell phone to make a call. When she opened the door to pass him the phone, she said, the two pushed their way into the house and raped her. Now my client and his buddy were sitting in jail charged not only with sexual battery, but also breaking and entering. They faced possible life sentences.
Frankly, I didn’t know whether or not to believe my client. The prosecutor had deep faith in the victim’s side of the story and would only offer 30 years as a plea bargain against the possibility of life if the case went to trial. But then my investigator came up with a very interesting document. Written in the victim’s own hand it was two pages long and entitled “Incidents.” Each page contained several men’s names along with some cryptic numbers, words, symbols and dates. The first name, for example, was “Marlon.” Under that were the words “two times” followed by “butt ass naked” and then three hand drawn stars, six dates and the name of a local high school.
I suspected we had hit pay dirt. I figured this was some kind of list of men with whom the victim had engaged in sex. But to prove that I would have to put her under oath and ask her what it all meant. Trouble is, in most rape cases the Rape Shield Statute prohibits the defense from inquiring into the victim’s past history of sexual escapades on the grounds that even a prostitute can be raped. But there are exceptions to the Rape Shield Statute and I won just such an exception by arguing that the statute didn’t apply when questions of consent were at issue. I dreaded taking a sworn deposition from the young girl in which I would take her through what I knew would be a traumatic recitation if the “Incidents” document was what I thought it was, but I also knew that my client’s future depended upon this single document.
As I suspected, the nine guys named on the “Incidents” list were high school boys with whom the victim had been intimate. When she wrote, for example, “6 times” next to Randy’s name, it meant that she had sex with him on six separate occasions. If a guy received four stars, like Michael did, that meant that the sex was outstanding. A boy who received no stars, like poor Tyrone, was “no good,” she explained. She also said she wrote things like “butt ass naked” to help her remember whether the encounter involved clothing. The dates, of course, were the dates on which she had sex with the boy in question. All the dates were clustered within one year and led right up to my client’s name and two dates. In case you’re wondering, he rated three stars and they did it with their clothes on. I tried to be as pleasant and professional as possible, but she still wound up breaking down and crying several times during the deposition. I know we were both glad when her testimony was over.
A few days later I got a call from the prosecutor informing me that the charges against my client were being dropped. I didn’t ask why, I just thanked her. I’ll probably never know if the prosecutor dropped the charges because the “Incidents” list undermined her confidence in the victim’s honesty or whether she simply realized that it would be too difficult to win the case against my client with the “Incidents” list entered into evidence and the victim facing another grueling examination in front of open court.